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KadhiPartially AllowedNot stated in the judgment· [2021] KEKC 16 (KLR)

FAO v MB (Divorce Cause E006 of 2021) [2021] KEKC 16 (KLR)

Kadhi's Court
25 March 2021
AAAbdulhalim H. Athman
2,158 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Isiolo Kadhi's Court dissolved an abusive marriage, gave the mother custody, ordered monthly child support, and split the couple's property equally.

What this practically means

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Executive summary

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This was a first-instance Kadhi's Court suit at Isiolo by a plaintiff against her husband, both prison wardens married under Islamic law in Moyale in 2010, seeking dissolution of the marriage, legal and actual custody of the couple's two children aged eight and six, and division of matrimonial property. She alleged assault, insults, threats to her life with a gun and denial of maintenance. The defendant denied the claims, admitting only non-payment of dowry, and failed to appear at the further hearing despite due service; the suit proceeded ex parte under Order 12(2)(a) of the Civil Procedure Rules. The Kadhi found the plaintiff's uncontroverted, corroborated evidence credible, including a written apology made before elders, and held the marriage had irretrievably broken down, dissolving it with effect from March 25, 2021. On jurisdiction, the court held child custody and maintenance are incidental to divorce and within the Kadhi's Court's competence under Article 170(5) of the Constitution and Section 5 of the Kadhis Court Act, aligning with ZUDG v SJKUR. Applying the mother's priority for children of tender age under both the Children's Act and Islamic law, actual custody went to the plaintiff with reasonable access to the defendant and joint legal custody; the defendant was ordered to pay Kes 8,000 monthly maintenance and provide for education. Invoking Section 3 of the Matrimonial Property Act and Islamic law's recognition of non-monetary contribution, the two Maisha Bora plots and the shop were held jointly owned and divided equally. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the plaintiff was entitled to divorce

Holding

Divorce granted; the marriage had irretrievably broken down due to the defendant's mistreatment, insults, threats and three years of separation

Reasoning

The plaintiff gave uncontroverted evidence of threats with a gun, assault and psychological abuse, corroborated by witnesses who saw marks of violence at the home and produced a written apology by the defendant at an elders' meeting. The couple had lived apart for three years. Islamic law objectives of marriage (love, affection and mercy under Q.30.21) could not be realised, and divorce is a right of each spouse where the relationship is harmful.

02

Jurisdiction of the Kadhi's Court over child custody and maintenance

Holding

The court has jurisdiction, custody and maintenance being incidental to marriage and divorce

Reasoning

Article 170(5) of the Constitution and Section 5 of the Kadhis Court Act confer jurisdiction over matters governed by Islamic law. Child custody and maintenance are incidental to divorce. The court aligned itself with Ali-Aroni J in ZUDG v SJKUR that the Children's Act did not oust Kadhi's jurisdiction, provided the best interests of the child principle is applied.

p. 3
03

Custody, legal custody and maintenance of the two children

Holding

Actual custody to the mother, joint legal custody to both, maintenance of Kes 8,000 monthly plus education from the father

Reasoning

Both children are of tender age and under both the Children's Act and Islamic law the mother has priority for custody absent special circumstances, based on the Prophet's ruling and Article 106(1) of the Islamic Charter on Family. Islamic law rests maintenance on the father according to children's needs and his financial ability; as a prison warden he is directed to pay Kes 8,000 monthly and provide education.

p. 4
04

Division of matrimonial property

Holding

The two Maisha Bora plots and the shop held jointly owned and divided equally

Reasoning

The Matrimonial Property Act, 2013, Section 3, permits Muslims to be governed by Islamic law in matrimonial property matters, and the Kadhi's Court has jurisdiction where both parties are Muslims. Islamic law recognizes direct and non-monetary contribution. The plaintiff demonstrated joint purchase of the two plots; in the absence of evidence over the shop's contribution, it too was held jointly owned.

p. 5

Legal principles established

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  • A plaintiff's unchallenged evidence in an ex parte hearing, once proved on a balance of probability, is credible and acceptable
  • Kadhi's Courts have jurisdiction over children matters incidental to marriage and divorce, applying the best interests principle under the Children's Act
  • Custody of children of tender age is awarded to the mother unless special or peculiar circumstances disqualify her
  • Islamic law recognizes both direct and non-monetary contribution of spouses in division of matrimonial property acquired during marriage

Court orders

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  1. 1.The parties' marriage is dissolved with effect from March 25, 2021, corresponding with 10th Sha'ban 1442 AH, and a Divorce Certificate to issue
  2. 2.Actual custody of the two children of tender age granted to the plaintiff, the defendant to have reasonable access
  3. 3.The parties have joint legal custody of the children
  4. 4.The defendant directed to pay Kes 8,000.00 per month towards children's maintenance and also provide for the children's education
  5. 5.The matrimonial property at Maisha Bora (two plots) and the shop be divided equally between the parties
  6. 6.Each party to pay its own costs
Jurisdiction invoked
Article 170(5) of the Constitution of Kenya (2010) and Section 5 of the Kadhis Court Act, Cap 11

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, "FAO v MB (Divorce Cause E006 of 2021) [2021] KEKC 16 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2021/16/eng@2021-03-25

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