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KadhiPartially AllowedDivorce 5 of 2015 (custody application by Notice of Motion dated 15th December, 2017)· [2018] KEKC 11 (KLR)

BI v MHA [2018] KEKC 11 (KLR)

Kadhi's Court

29 January 2018

DRD. S. Ratori

1,597 words in judgment

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The bottom line

What this practically means

Executive summary

This was a notice of motion dated 15th December 2017 by the applicant (the mother) seeking reversal of custody of seven-year-old JM, granted to the respondent (the father) when the parties' marriage was dissolved. The applicant argued the respondent denied her access during holidays, that the child needed motherly care, and that the respondent, who had no income, had delegated custody to his ailing, elderly mother. The respondent opposed, citing his payment of school fees, the child's enrolment and religious progress under his care, and alleged family support through a Trust/Waqf account. The Kadhi's Court, exercising jurisdiction under Article 170(5) of the Constitution and sections (5) and (6) of the Kadhi's Court Act Cap II, framed two issues: whether reversal of custody was necessary, and other reliefs. Applying Islamic Law and the opinions of the four Muslim scholars, which mostly favour the mother for a young child, and giving the child a choice in accordance with the Shaafi view and section 4(4) of the Children Act, the court found the child preferred to live with her mother in Bungoma and that she still needed love, mercy, attention and motherly care. The court also questioned the timing of the respondent's full payment of 2018 fees after service of summons. Custody was reversed to the applicant until the child turns 18, with maintenance on the applicant, school expenses on the respondent, major medical expenses shared, minor medical expenses on the applicant, and December holiday access to the father. No orders as to costs were made.

Key legal issues

Whether custody of the seven-year-old minor should be reversed from the respondent to the applicant

Holding

Custody was reversed to the applicant until the child turns 18, the child having been given a choice in accordance with the Shaafi view and section 4(4) of the Children Act, and having preferred to live with her mother in Bungoma.

Reasoning

The court applied Article 170(5) of the Constitution and sections (5) and (6) of the Kadhi's Court Act, and Muslim Law. It considered the opinions of the four Muslim scholars (Shaafi, Abu Hanifa, Malik and Ahmad) which mostly favour the mother for a young child. The child, given a choice, preferred her mother and to study in Bungoma. The court was convinced the minor still needed love, mercy, attention and motherly care, while balancing parental responsibilities for the child's best interest.

p. 2

The credibility of the respondent's conduct in paying 2018 school fees in full days after being served with summons

Holding

The court inferred the respondent's payment of 2018 fees in full on 19th December 2017 was likely calculated to catch the court's attention for custody, and declined to treat his refusal to assist the child in the mother's custody as decisive.

Reasoning

The respondent had other means of paying fees yet refused to extend assistance to the child while in the applicant's custody, and those controlling the alleged family Trust/Waqf account had not denied assistance. The timing of the full payment of 2018 fees, after service of summons, suggested an attempt to influence the court's custody decision rather than genuine concern for the child's stability.

p. 2

Maintenance and ancillary parental responsibilities

Holding

Maintenance was placed on the applicant; school expenses on the respondent; major medical expenses shared; minor medical expenses on the applicant; access to the father during December holidays.

Reasoning

Guided by Quran 2:233 and 65:7, the court held maintenance is the father's duty on a reasonable basis according to his means, but found no steady income established for the respondent to make an informed maintenance decision. It therefore allocated maintenance to the applicant while assigning school expenses and a share of major medical expenses to the respondent, and secured the child's access to the father during December holidays.

p. 2

Legal principles established

In Islamic Law, where the mother has not remarried and the child has reached the age of understanding recognized at seven years, the child is given a choice between the parents, and the opinions of the four Muslim schools of thought mostly favour the mother's custody for a young child.
Irrespective of who has the right of custody, the other party has visitation rights according to mutual understanding and consent.
Where custody is with the mother, maintenance is the duty of the father on a reasonable basis depending on his circumstances and means.

Court orders

1.Custody of JM to applicant until age of 18 years
2.Maintenance be borne by applicant
3.School expenses of the child be the responsibility of the respondent
4.Child be enrolled to school and to also enjoy Islamic Religious studies
5.Major medical expenses be the responsibility of both parties
6.Minor medical expenses be the responsibility of the applicant
7.Applicant to cause the child to access the respondent during December holidays
8.No orders to costs

Authorities

Legislation

Constitution of Kenya, 2010Article 170(5)
Kadhi's Court Act Cap IISections (5) and (6)
Children ActSection 4(4)

Jurisdiction invoked: Article 170(5) of the Constitution of Kenya 2010 as read with sections (5) and (6) of the Kadhi's Court Act Cap II

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "BI v MHA [2018] KEKC 11 (KLR)", Case Analysis (2018). Divorce 5 of 2015 (custody application by Notice of Motion dated 15th December, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2018/11/eng@2018-01-29

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