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KadhiDismissedNot stated in the judgment· [2022] KEKC 164 (KLR)

SAA v HMM (Divorce Cause 30 of 2018) [2022] KEKC 164 (KLR)

Kadhis' Court
14 September 2022
AHAJ Ishaq Hussein
1,114 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan Kadhis' Court kept the children with their mother, ruling that her alleged remarriage did not prove the children were better off with their father.

What this practically means

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Executive summary

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The applicant, father of the minors, moved the Kadhi's Court at Nairobi under sections 1A, 1B and 3A of the Civil Procedure Act seeking review of the custody and control orders issued on July 18, 2018, which placed the minors in their mother's custody. He relied on two grounds: the minors' declining academic performance in secondary school due to poor conditions and lack of guidance, and the respondent's alleged remarriage which divided her attention. The respondent opposed the application, denying remarriage, maintaining that one minor needs special care, and asserting that the applicant had shown no prejudice. The court framed a single issue: whether grounds existed for review or variation. It held that review is a creature of statute and that Order 162(1) and Rule 79(d) of the Kadhis' Courts Rules 2020 confer wide discretion on the Kadhi's Court to vary orders concerning children upon proof of a change of material circumstances, guided by the paramount best interest of the child under Article 53(2) of the Constitution. Drawing on the prophetic tradition on maternal remarriage and the decision in Abdalla Iddi Waititu v Rashada Hussein, the court found that remarriage does not automatically disqualify a mother from custody. The applicant proved neither the remarriage nor any nexus between it and the children's educational decline, failing to discharge the burden resting on him. The court declined to vary the custody order in its entirety but restructured access: the respondent retained physical custody, the applicant received custody during school holidays and unlimited access, with reciprocal access for the respondent, and no order as to costs.

Key legal issues

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Whether there are grounds to review/vary the custody order of July 18, 2018

Holding

The application for review of custody in its entirety was refused; the court found no change of material circumstances compromising the children's best interest, but adjusted access and holiday custody in the father's favour.

Reasoning

The court held that review powers exist under Order 162(1) and Rule 79(d) of the Kadhis' Courts Rules 2020 and are exercised in the child's best interest under Article 53(2). Although a mother's remarriage may affect maternal priority under the prophetic tradition, the applicant adduced no evidence proving remarriage or a nexus between remarriage and the minors' academic decline. The burden of proof resting on the claimant was not discharged. The court therefore retained physical custody with the mother while granting the father holiday custody and unlimited access, treating the parents' roles as complimentary.

p. 2

Legal principles established

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  • An order for review is a creature of statute and must be expressly provided for; the court exercises its discretion judicially.
  • The child's best interest under Article 53(2) is paramount, and the Kadhi's Court has wide discretion under Order 162(1) of the Kadhis' Courts Rules 2020 to revoke, review, suspend or vary orders concerning children upon proof of a change of material circumstances.
  • A mother's remarriage does not automatically disqualify her from custody; the applicant must prove that the remarriage has compromised the children's best interest.
  • The onus of proof lies on the claimant ('Albayyinatu alal mudai'), applied with intelligent reasoning rather than as a fossilized doctrine.

Court orders

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  1. 1.The respondent shall continue having physical custody of the minors.
  2. 2.The applicant shall continue enjoying unlimited access to the minors during their stay with their mother.
  3. 3.The applicant shall have custody of the minors during the school holiday.
  4. 4.The respondent shall enjoy unlimited access to the minors during their stay with their father.
  5. 5.No order as to costs.
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 162(1) and Rule 79(d) of the Kadhis' Courts Rules 2020

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, "SAA v HMM (Divorce Cause 30 of 2018) [2022] KEKC 164 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2022/164/eng@2022-09-14

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