Divorce Petition (unspecified case number)

The plaintiff testified she was compelled to leave the matrimonial home more than twenty times, was threatened with a knife and insulted at her workplace. Three witnesses corroborated that elders reconciled the parties many times without the respondent reforming. The court held the respondent's conduct offends the objectives of marriage under Islamic law of love, affection and mercy, and Article 87 of the Islamic Charter on Family entitles a harmed wife to divorce upon proof of harm.

The defendant admitted he had not paid dowry but disputed it was three cows. No marriage certificate was filed by either party. The plaintiff's claim was supported by PW1's evidence, and the court found as fact that the dowry of three cows was not paid. Citing Qur'an 4:4, the court held dowry is a fundamental right not extinguished without the wife's free-will forfeiture.

The court reviewed divergent High Court decisions: Musyoka, Muchelule and Odero JJs holding the Kadhi's Court lacks jurisdiction after the Children's Act, versus Sergon, Omondi and Mutuku JJs holding jurisdiction exists. Persuaded by the strength of the latter's reasons and their purposive interpretation of the Constitution and statute, the court adopted the position that custody and maintenance are connected and incidental to marriage and divorce within Section 5 of the Kadhis Court Act and Article 170(5).

Applying the general Islamic law principle of maternal priority to custody of minors and noting the children (aged 8 years to 6 months) had lived with their mother, the court found no reason to deviate. On maintenance, under Qur'an 2:233 and 65:7 the father bears 100% of the costs; considering his rental income of KES 38,000 monthly and school fees needs, the court ordered sustenance, accommodation and school fees contributions, with rental income to be used as part of maintenance.

The petitioner produced bank statements showing, among other entries, a KES 700,000 payment to Tulla Hardware and OTC withdrawals of about KES 3,260,000 between July 2015 and December 2017, and supervised construction. The respondent, who claimed he funded the construction, produced no statements supporting remittances. Adopting Malaysian Syariah Court guidelines where contribution is determinable, the court held the petitioner was entitled to her contribution, limited to the KES 2,000,000 she claimed.

The court held that scriptures are not translated verbatim but as interpreted by the Prophet and his companions, citing Ibn Abbas that any 'scourging' must be light and leave no mark. Relying on the maxim that harm must be removed and on Qur'an 4:19 requiring honourable treatment of wives, the court found that nothing in the Qur'an condones marital violence.