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KadhiPartially AllowedDivorce No. 8 of 2019· [2019] KEKC 9 (KLR)

BA v II [2019] KEKC 9 (KLR)

Kadhi's Court at Moyale
8 July 2019
AWA.D. WAKO
1,503 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan Kadhi's Court dissolved a broken marriage, gave the mother custody, and ordered the father to pay child maintenance regardless of excuses.

What this practically means

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Executive summary

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The Petitioner petitioned the Kadhi's Court at Moyale for dissolution of her 2009 Islamic marriage on the ground of cruelty, plus maintenance, custody of the three children of the marriage and further relief. The Respondent denied the allegations, sought dismissal with costs and an order that the Petitioner resume her matrimonial home. Pre-trial arbitration efforts by the court failed. The Petitioner testified that the Respondent beat, verbally abused and attacked her, engaged in extra-marital affairs and failed to maintain the home; her two witnesses corroborated this. The Respondent alleged the Petitioner committed adultery, but none of his witnesses supported that claim. The court found the marriage had irretrievably broken down: the parties had not cohabited for three years, showed no interest in reconciliation, and the marriage existed in name only, being 'a shell'. Holding that divorce is permitted in Islamic law as a remedy in incompatible unions and that public policy arguments lose force where a marriage is wrecked beyond salvage, the court dissolved the marriage. On custody, guided by Article 53(2) of the Constitution and Ibn Qudama's Al Mughni, it held the welfare principle paramount but stressed that both parents should be involved in upbringing, awarding the Petitioner custody, care and control with reasonable visitation to the Respondent. On maintenance, relying on Section 24 of the Children Act, the Constitution and Chapter 2 Verse 233 of the Holy Qur'an, the court held the father's duty absolute and ordered the Respondent to pay Kshs. 6,000/- monthly for the children and eddat maintenance for three months to the Petitioner. Each party was to bear its own costs.

Key legal issues

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01

Dissolution of the marriage

Holding

The marriage was dissolved on the ground of irretrievable breakdown as evidenced by three years' separation and lack of desire to reconcile.

Reasoning

The court assessed the breakdown objectively, noting the parties had not lived together for three years, showed no interest in reconciliation, and their body language at trial showed they no longer wished to continue the relationship. It held that keeping parties tied in a sham marriage is conducive to immorality and more prejudicial to public interest than dissolution, and that divorce is allowed in Islamic law as a remedy in incompatible unions.

p. 2
02

Custody of the children

Holding

Petitioner awarded custody, care and control, with the Respondent granted visitation, guided by the best interest of the child under Article 53(2) of the Constitution and Sharia principles.

Reasoning

The court applied Article 53(2) of the Constitution and corroborating Sharia authority (Ibn Qudama, Al Mughni) that custody principles serve the welfare of children. It held both parents' roles are complementary, that the child should interact with both parents rather than staying almost exclusively with the mother, and that the Petitioner was not shown to be an unsuitable parent.

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03

Maintenance of the children

Holding

Respondent ordered to pay Kshs. 6,000/- monthly maintenance; the father's obligation is absolute.

Reasoning

Relying on Section 24 of the Children Act, the Constitution (Articles 19(2), 21(3) and 53) and Al Hidaya as well as Chapter 2 Verse 233 of the Holy Qur'an, the court held the children's right to maintenance is absolute and a measure of social justice aimed at preventing vagrancy and destitution. The Respondent, being a person of means running an electronic shop and rental houses, was ordered to maintain the children unconditionally.

p. 3

Legal principles established

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  • Custody is determined by the best interest of the child, which is of paramount importance, and the welfare of the minor is better served where both parents are involved in upbringing.
  • A father's duty to maintain his children is unconditional and absolute and cannot be excused by pleading financial constraints if he is capable of earning.
  • Where a marriage is wrecked beyond hope of salvage, public policy in upholding marriage loses force and divorce is an appropriate remedy under Islamic law.

Court orders

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  1. 1.The marriage solemnized in 2009 between the petitioner and the respondent is dissolved
  2. 2.Certificate of divorce to be issued forthwith
  3. 3.Petitioner granted custody, care and control of the children of the marriage
  4. 4.Respondent at liberty to visit the minors at a reasonable and/or agreed time of the day
  5. 5.Respondent to provide Kshs. 6,000/- monthly towards maintenance of the children
  6. 6.Respondent to provide eddat maintenance for three (3) months on a reasonable scale to the Petitioner
  7. 7.Each party to bear its own costs
Jurisdiction invoked
Jurisdiction of the Kadhi's Court over marriage solemnized under Islamic law (Islamic sharia); Constitution Article 53 applied to the children

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, "BA v II [2019] KEKC 9 (KLR)", Case Analysis (2019). Divorce No. 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2019/9/eng@2019-07-08

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