RNM alias M v MSR (Divorce Cause KCDC/E008 of 2024) [2025] KEKC 3 (KLR)
The bottom line
#Kenya's Kadhi's Court confirmed it can decide custody and maintenance in divorce cases, granting a mother physical custody while protecting the father's access.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Kadhi's Court has jurisdiction over matters touching on children of the marriage
- 2.Whether the marriage should be dissolved
- 3.Who should have custody of the minor child of the marriage
- 4.What maintenance the respondent should provide for the minor
- 5.What access arrangements should apply between the respondent and the minor
Key legal issues
#Jurisdiction of the Kadhi's Court over children matters
The Kadhi's Court, a constitutional establishment, has jurisdiction to determine matters relating to children connected to disputes properly before it; jurisdiction over children matters is not exclusive to the Children's Court
The Court acknowledged conflicting High Court decisions. Relying on the Court of Appeal in TSJ v SHSR holding there is no stipulation that the Children's Court's jurisdiction is exclusive, and on N v N under the repealed Guardianship of Infants Act, the Court reasoned that if non-statutory bodies can entertain custody matters, the constitutionally established Kadhi's Court must a fortiori have jurisdiction. It held itself bound by the Court of Appeal position.
Custody of the minor
Joint legal custody to both parents; actual/physical custody to the petitioner, subject to the minor's rights being protected, consistent with the authority from the Prophet (P.B.U.H.) that a divorced mother has more right to the child as long as she does not remarry
The parties implicitly agreed actual custody should remain with the petitioner, but the Court insisted on being satisfied that the minor's rights are protected. It applied the best-interest principle as understood in Islamic Law and the hadith in Sunan Abi Daawuud 2276, and stressed the child's right under Article 53(1)(e) of the Constitution to parental care from both mother and father.
Access by the respondent to the minor
The respondent was granted unrestricted access; the petitioner's conduct in barring communication violated the child's right and the father's right
The petitioner did not dispute that she had blocked the respondent's calls, citing indecent language toward her. The Court held that parental disputes do not justify violating the child's rights, citing Article 53(1)(e) of the Constitution, Article 9(3) of the Convention on the Rights of the Child, and the Supreme Court's observations in MAK v RMAA on the benefits of both parents being involved in a child's life.
Maintenance of the minor
The respondent, as father, bears the primary duty of maintenance and was ordered to pay not less than USD 300 monthly, plus medical and educational expenses
The Court relied on Qur'aan 2:233 placing the duty of provision on fathers and the hadith of Hindu bint Utbah (Musnadu ddaarimy 2281) directing fair provision. Given that contributions during the marriage ranged between USD 250 and 500, the Court fixed a floor of USD 300, applying the Qur'aanic principle in 65:7 that a man of means spends according to his means.
Legal principles established
#- Jurisdiction is foundational; a court without jurisdiction must down tools
- The Kadhi's Court has jurisdiction over children's matters incidental to disputes within its jurisdiction; jurisdiction over children matters is not exclusive to the Children's Court
- The best interest of the child is the governing consideration in custody regardless of the status of the parent
- Inter-parental disputes do not extinguish a parent's rights and duties toward a child; barring a parent from access violates the rights of both the parent and the child
Court orders
#- 1.The petitioner be and is hereby divorced from the respondent
- 2.The petitioner and respondent be and are hereby granted joint legal custody of the minor
- 3.The petitioner be and is hereby granted actual/physical custody of the minor
- 4.The respondent be and is hereby granted unrestricted access to the minor
- 5.The respondent to provide a monthly US dollar not less than 300 towards maintenance of the minor
- 6.The respondent to cater for minor's medical expenses when needed
- 7.The respondent to cater for educational needs of the minor
- 8.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 170(5) of the Constitution (jurisdiction of Kadhi's Court); the Court considered and affirmed its jurisdiction over children matters connected to marriage disputes, relying on the Court of Appeal in TSJ v SHSR
Relief refused
#Respondent's request that if the petitioner travels out of Kenya for more than thirty days, custody of the minor should pass to him
The petitioner stated she will not be leaving the country; the Court held the parties may discuss holiday visits or apply to Court once the child is in school
Respondent's preliminary objection on res judicata based on Nakuru Kadhi Divorce No. E007 of 2023
The Court noted the earlier cause was withdrawn before judgment, that the Court did not pronounce itself in that matter and it is not active; the objection was never upheld
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Jurisdiction is everything. Without it, a court has no power to make one more step.
From the above, this Court is bound by the position taken by the Court of Appeal that children’s matters are not exclusive to the Children’s Court.
The conduct of a parent toward another is not important and does not extinguish parental rights to a child unless proven that the parent does not act in the best interest of a child.
a. That the petitioner be and is hereby divorced from the respondent.
d. That the respondent be and is hereby granted unrestricted access to the minor.
e. That the respondent to provide a monthly US dollar not less than 300 towards maintenance of the minor.
h. That no order as to costs.
Issues in the judgment
#The judgment states inconsistent dates of marriage: the petition grounds reference a marriage 'solemnized on 27th August 2018' while the background records it was celebrated 'on 27th August 2021 vide Certificate of Marriage, Entry No.XX/XXX/NAIVASHA'
The judgment uses a redacted/placeholder certificate reference ('Entry No.XX/XXX/NAIVASHA, Serial No.00XXXX'), suggesting an unredacted or imperfect record
The respondent's preliminary objection on res judicata was pleaded but the judgment does not record an express ruling on it; the Court instead recorded that the earlier cause was withdrawn and inactive
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "RNM alias M v MSR (Divorce Cause KCDC/E008 of 2024) [2025] KEKC 3 (KLR)", Case Analysis (2025). Divorce Cause No. E007 of 2024 (Nakuru Kadhi's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2025/3/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.