SIB v EAM [2018] KEKC 33 (KLR)

Both parties agreed the marriage had irretrievably broken down with no prospect of reconciliation. The petitioner, as husband, reiterated that he pronounced divorce, albeit unwritten; under Islamic law talaq may be verbal or written and pronounced once. The court therefore accepted that the divorce took place at that time as seen in the agreement to divorce.

Article 170(5) of the Constitution and Section 5 of the Kadhis Court Act limit the Kadhi's court to questions of Muslim law on personal status, marriage, divorce or inheritance. Matrimonial property and custody are incidental to divorce, and Section 3 of the Matrimonial Property Act 2013 permits persons professing the Islamic faith to be governed by Islamic law in matrimonial property matters. The court adopts the principle that a divorce court has continuing jurisdiction over its decrees.

The court re-examined the evidential record and found proof on a balance of probability that the house was jointly built by the parties in equal terms. Applying Section 7 of the Matrimonial Property Act and Islamic jurisprudence recognizing both direct financial and indirect non-monetary contributions, the court held a 50/50 division accords with justice, and ordered a valuation to determine the exact payment due to the respondent.

Guided by Article 53(2) of the Constitution and Sharia principles as expressed in Ibn Qudama's Al Mughni, the welfare of the child is paramount. The respondent had been staying with the children all along and was not shown to be an unsuitable parent, nor was it demonstrated that granting her custody would be against the children's best interests.

Section 24 of the Children Act, the Constitution and Islamic sources (Chapter 2 Verse 233 of the Holy Qur'an, Al Hidaya) place an absolute duty on an able-bodied father to maintain his children. Maintenance is a measure of social justice protecting children from vagrancy and destitution and falls within the constitutional sweep of Articles 19(2), 21(3) and 53.