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KadhiDismissedNot stated in the judgment· [2023] KEKC 16 (KLR)

AMH v SGF (Divorce Cause E046 of 2023) [2023] KEKC 16 (KLR)

Kadhi's Court
17 August 2023
AAAbdulhalim H. Athman
1,486 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Kadhi's Courts can hear Muslim family cases filed where either spouse lives, so you don't have to travel back to where your marriage home was.

What this practically means

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Executive summary

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This was a ruling on a preliminary objection in a matrimonial petition before the Nairobi Kadhi's Court. The respondent objected that the court lacked jurisdiction because the cause of action arose in Garissa, the matrimonial home and children are in Garissa, a competent Kadhi's Court exists in Garissa, and the petitioner was forum shopping; the respondent sought striking out of the petition with costs. The petitioner opposed through a replying affidavit, stating she lives and works for gain in Eastleigh, Nairobi, and that Rule 36(b) of the Kadhi's Court (Procedure and Practice) Rules 2020 permits filing where either party habitually resides. The court disposed of the objection by written submissions, framing the sole issue as the right place of suing. Relying on Mukisa Biscuits v West End Distributors, the court held the objection was not a pure point of law since the petitioner's residence was a fact requiring ascertainment. On jurisdiction, the court held that under Article 170(5) Kadhi's Courts are limited only by subject matter and by the parties' religion, not territorially or pecuniarily, following Farzila Hasham. Rule 36 of the 2020 Rules, not sections 14 and 15 of the Civil Procedure Act, governs place of suing, and its departure from the Civil Procedure Act was aimed at deepening access to justice for vulnerable groups. The preliminary objection was dismissed with costs in the cause.

Key legal issues

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01

Whether the preliminary objection was a proper one raising a pure point of law

Holding

It was not; the objection depended on ascertaining where the petitioner resides, an issue of fact.

Reasoning

Applying Mukisa Biscuits, a preliminary objection must consist of a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Whether the petitioner resides in Garissa or Nairobi is a factual question requiring ascertainment and is central to the application, disqualifying the objection as a proper preliminary objection.

p. 2
02

Whether the Kadhi's Court is territorially limited such that the suit must be filed at Garissa

Holding

No. Kadhi's Courts have no territorial limitation; Rule 36(b) of the KCR allows filing where either party habitually resides, and the petitioner resides and works for gain in Eastleigh, Nairobi.

Reasoning

Article 170(5) limits Kadhi's Courts only by subject matter and religion of parties. The Kadhi's Court (Procedure and Practice) Rules 2020, not the Civil Procedure Act, govern place of suing; Rule 36 permits filing where either party habitually resides. The rule was a deliberate departure from the Civil Procedure Act to deepen access to justice, especially for vulnerable groups at times of divorce.

p. 4
03

Whether the Civil Procedure Act (sections 14 and 15) applies to Kadhi's Courts

Holding

The Civil Procedure Act does not apply directly; the Kadhi's Court Rules govern, with the Civil Procedure Act applying only to fill a vacuum under Rule 173.

Reasoning

The court held that the applicable rules of procedure in the Kadhi's Court are the Kadhi's Court (Procedure and Practice) Rules 2020 unless there is a vacuum, in which case the Civil Procedure Act applies under Rule 173. Rule 36 expressly governs place of suing and is a departure from the Civil Procedure Act provisions relied on by the respondent.

p. 3

Legal principles established

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  • Kadhi's Courts are not limited in terms of territory or pecuniary jurisdiction; their jurisdiction is limited only to subject matter (Muslim law on personal status, marriage, divorce, inheritance) and to parties professing the Muslim faith who submit to jurisdiction.
  • Under Rule 36 of the Kadhi's Court (Procedure and Practice) Rules 2020, in divorce and matrimonial matters a suit may be filed where either of the parties habitually resides.
  • A preliminary objection must raise a pure point of law and cannot be raised where facts must be ascertained.

Court orders

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  1. 1.The preliminary objection dated 7th June 2023 is dismissed
  2. 2.Costs be in the cause
Jurisdiction invoked
Article 170(5) of the Constitution of Kenya, 2010 - Kadhi's Courts jurisdiction over questions of Muslim law relating to personal status, marriage, divorce or inheritance

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, "AMH v SGF (Divorce Cause E046 of 2023) [2023] KEKC 16 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2023/16/eng@2023-08-17

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