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KadhiPartially AllowedNotice of Motion dated October 18, 2018 (Isiolo)· [2018] KEKC 38 (KLR)

HGG v GGG (Divorce Cause 46 of 2018) [2018] KEKC 38 (KLR)

Kadhi's Court
12 November 2018
AAAbdulhalim H. Athman
1,715 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Kadhi's Court confirmed a divorced mother keeps interim custody of her children and cannot be evicted from the matrimonial home while the case is pending.

What this practically means

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Executive summary

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The applicant, who was married to the respondent under Islamic law in 2004 and divorced in 2017, moved the Kadhi's Court at Isiolo by Notice of Motion dated October 18, 2018 seeking to restrain the respondent from evicting her from the matrimonial home and seeking custody and maintenance of the three minor children of the marriage. The respondent opposed, deponing that he had divorced her under Islamic law and given her money to leave, and that she was unsuitable to have custody. He also argued the court lacked competence over the matrimonial dispute. The court framed the issues as custody, maintenance and restraint against eviction. Applying Article 53(2) of the Constitution and sections 76(3) and 83(1) of the Children's Act, and finding that both general law (Mehrunisa v Pravez, Githunguri v Githunguri) and Islamic law accord mothers priority in the custody of children of tender age absent special circumstances, the court found no sufficient extenuating circumstances to deny the mother custody, noting the children had always lived with her and that the respondent had unilaterally removed them to Nairobi. Interim custody was granted to the applicant with unlimited access to the respondent, who was to continue providing the children's accommodation, sustenance and education; consequently the applicant could not be evicted from the matrimonial home pending determination. Custody and matrimonial property questions were left for full trial, with the children's officer to investigate and report. The application was granted as prayed, with costs in the cause, and the parties were encouraged to reconcile with the assistance of elders and Imams.

Key legal issues

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01

Who should have interim custody of the three minor children?

Holding

Interim custody granted to the mother; no extenuating circumstances were proved to displace maternal priority

Reasoning

The children had lived with their mother all their life and the father had unilaterally removed them to Nairobi, disrupting their stability. Under Article 53(2) of the Constitution and sections 76 and 83 of the Children's Act, the best interests of the child are paramount. Both general law (Mehrunisa v Pravez; Githunguri v Githunguri) and Islamic law (traditions of the Prophet and the Islamic Charter on Family) give mothers priority for children of tender age absent special circumstances. None were proved; full trial remains open to both parties.

p. 4
02

Whether the applicant could be evicted from the matrimonial home pending determination

Holding

She could not be evicted, since the respondent is obliged to continue providing the children's accommodation

Reasoning

The court linked the children's accommodation to the respondent's maintenance obligation. As the respondent shall continue providing for the children's accommodation, sustenance and education, and the children remain with the mother, evicting her would disrupt the children's wellbeing pending full determination.

p. 4

Legal principles established

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  • In considering issues relating to children, the best interests of the child are paramount
  • Unless there exist peculiar and special circumstances, the mother has priority in custody of minor children
  • Under Islamic law the same principle of maternal priority for children of tender age applies

Court orders

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  1. 1.Pending hearing and determination of the case, custody of the children is granted to the plaintiff/applicant
  2. 2.The defendant/respondent is granted unlimited access to the children
  3. 3.The respondent shall continue to provide for the children's accommodation, sustenance and education
  4. 4.The applicant cannot be evicted from the matrimonial home until the matter is determined
  5. 5.The children's officer to make investigation and file a comprehensive report to assist in determination of custody at full trial
  6. 6.Application granted as prayed
  7. 7.Costs be in the cause
Jurisdiction invoked
Kadhi's Court jurisdiction over parties professing the Muslim faith in matters governed by Islamic law (application invokes the Children's Act and Article 53(2) of the Constitution); court expressly left challenges to its competence on matrimonial property for later determination

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, "HGG v GGG (Divorce Cause 46 of 2018) [2018] KEKC 38 (KLR)", Case Analysis (2018). Notice of Motion dated October 18, 2018 (Isiolo). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2018/38/eng@2018-11-12

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