ZAG v VOM (Divorce Cause E087 of 2022) [2023] KEKC 20 (KLR)

Both parties agreed the marriage had irretrievably broken down and both prayed for dissolution; the respondent pronounced the divorce in court on 8th May 2023. The court annulled the marriage as a first, revocable divorce effective from that date and ordered a divorce certificate to issue.

Dowry is a fundamental right of the wife not extinguished unless forfeited voluntarily. The petitioner admitted KES 150,000 was paid to her parents. The marriage certificate was inadmissible for want of signature, seal and stamp, so her claim lacked credible evidence.

The general rule is that edda maintenance is not given where dissolution is granted on the wife's own prayer, to prevent misuse and double benefit and reduce divorce. The marriage broke down due to discord from both parties, and the respondent had paid accommodation and sustenance beyond the three-month period.

Mata' is a gift to console a divorced wife. Jurists differ on whether it applies only to consummated marriages, but Ibn Jarir Al Tabary treated it as obligatory on Muslim husbands. Considering the eight-year marriage and mutual discord, the court awarded KES 50,000.

The jurisdiction objection was raised only in final submissions though absent from pleadings and pre-trial conference; issues flow from pleadings. On the merits, a purposive reading of Article 170(5) and Court of Appeal authority confirm the Kadhi's Court may determine custody and maintenance incidental to divorce since the Children's Act does not make the children's court's jurisdiction exclusive.

The mother enjoys priority unless proven unqualified, consistent with best interests of the child under the Constitution, the Children's Act, the CRC and Islamic law. Nothing was produced to prove the petitioner unfit; both parents share equal legal custody, with access not to affect schooling and madrasa tuition.

Under Islamic law the father bears full financial responsibility for children irrespective of the mother's means, quantified on the twin factors of the children's needs and the father's ability. The parental responsibility agreement was not made by a competent court and though persuasive was not binding. The respondent was a person of stable financial ability.

The Kadhi's Court has jurisdiction over matrimonial property where both parties are Muslims. However, the dispute over the 'Amiraza' company involved company law, the relationship between two companies and valuation questions beyond the court's competence, so no declaration was made.