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KadhiAllowedMatrimonial Cause No 16 of 2018· [2018] KEKC 10 (KLR)

SS v OJ [2018] KEKC 10 (KLR)

Kadhis' Court
5 December 2018
NJNot stated in judgment
508 words in judgment
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The bottom line

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A Kenyan Kadhis' Court dissolved a broken marriage, gave the mother custody, and ordered the husband to pay dowry and child maintenance.

What this practically means

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Executive summary

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The plaintiff, SS, filed Matrimonial Cause No 16 of 2018 at the Kadhis' Court at Garsen against the defendant, OJ, seeking dissolution of the marriage and payment of dowry of Kshs 40,000. The suit proceeded ex parte because the respondent, though served with a hearing notice on his mobile phone, failed to appear. The plaintiff testified that the respondent failed to provide home maintenance, assaulted and threatened to kill her, was unfaithful, and had an intimate relationship with a girl who insulted her by phone. The parties were blessed with one child. The Kadhi framed two issues: whether the court was entitled to dissolve the marriage as prayed, and custody and maintenance of the child. On the first issue, the court held that the evidence showed the marriage was no longer worthy according to the Holy Quran and the hadith of the Prophet SAW. On the second, it relied on Quran 2:233, which places custody with the mother and maintenance of the children on the father. On dowry, it invoked Quran 4:4 and noted the respondent had not paid despite admitting the dowry in his defence statement. The court dissolved the marriage by way of faskhu, directed the applicant to observe the three-month eddah period, ordered issuance of a divorce certificate, compelled payment of Kshs 40,000 dowry within 90 days, granted custody to the plaintiff with reasonable access to the respondent, and ordered monthly maintenance of Kshs 2,500 from January 2019. Right of appeal was 30 days. No costs order was made.

Key legal issues

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01

Dissolution of marriage

Holding

The marriage was dissolved by way of faskhu on the unchallenged ex parte evidence that the marriage had failed, the respondent was unfaithful, failed to maintain the home, and assaulted the plaintiff.

Reasoning

The suit proceeded ex parte after the respondent was served by hearing notice on his mobile phone but failed to appear. The Kadhi found the applicant's uncontradicted evidence sufficient and held that the marriage was no longer worthy according to the Holy Quran and the hadith of the Prophet SAW, justifying dissolution as requested.

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02

Custody and maintenance of the child

Holding

Custody awarded to the mother (plaintiff) with reasonable access to the respondent, who was ordered to pay Kshs 2,500 monthly child maintenance from January 2019.

Reasoning

The court relied on Islamic sharia as expressed in the Holy Quran, chapter 2 verse 233, which places custody with the mother after divorce and makes the father responsible for the children's maintenance and clothing.

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03

Payment of dowry

Holding

The respondent was compelled to pay dowry of Kshs 40,000 within 90 days, as admitted in his defence statement.

Reasoning

The court invoked Quran 4:4, which requires husbands to give women their dowries as a free gift, and noted the respondent had not yet paid the agreed dowry despite admitting it in his defence statement, hence the directive to pay within 90 days.

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Legal principles established

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  • Custody of the child after divorce is the responsibility of the mother, with the father responsible for maintenance of the children.
  • Under Islamic law the husband is obliged to pay dowry as agreed between the parties.

Court orders

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  1. 1.The marriage is dissolved as requested by the applicant in the way of faskhu.
  2. 2.The applicant should wait for the eddah period of three months starting from the date of judgment.
  3. 3.A divorce certificate to be issued on the date of judgment.
  4. 4.The respondent to pay dowry of Kshs 40,000 within 90 days from 5th December 2018.
  5. 5.Custody of the child is given to the plaintiff and the respondent shall have reasonable access to her.
  6. 6.The respondent to pay Kshs 2,500 as maintenance for his child with effect from January 2019.
  7. 7.Right of appeal within 30 days.
Jurisdiction invoked
Jurisdiction of the Kadhis' Court over matrimonial causes governed by Islamic law (the Holy Quran and the hadith of the Prophet SAW)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "SS v OJ [2018] KEKC 10 (KLR)", Case Analysis (2018). Matrimonial Cause No 16 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2018/10/eng@2018-12-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.