MASPK v (Y)RWK (Divorce Cause E002 of 2021) [2022] KEKC 153 (KLR)

Article 170(5) confines Kadhi's courts to questions of Muslim law on personal status, marriage, divorce or inheritance where all parties profess the Muslim religion and submit to the jurisdiction. Relying on MSR v NAB, the court held that celebration of a marriage under Islamic law amounts to submission to the Kadhi's court's jurisdiction for dissolution, and that a later change of faith does not alter this. Sections 3 and 71 of the Marriage Act recognise Muslim marriages and subject their dissolution to Islamic law.

Article 50(1) and Islamic law guarantee the right to fair trial, embodying audi alteram partem. Although the respondent proved service of the divorce notice by email, there was no proof the applicant was served with the hearing notice or given the virtual court link. The matter was filed on January 4, 2021 and heard on January 6, 2021. Following Shah v Mbogo and Ongom v Owota, an irregular judgment is set aside as of right.

The court agreed the husband holds original powers to effect divorce, effective upon pronouncement or writing, but the divorce must be communicated to the wife whose post-divorce rights the court must protect. Registration presupposes an uncontested informal divorce with both parties' signatures; otherwise the husband must file a petition or miscellaneous cause in which the wife is served. The applicant neither signed nor consented, and her allegation of continued cohabitation, if proved, would vitiate the divorce.