Ofb v Khm

(3) 3. 4. It is trite law that the Kadhi`s court has no jurisdiction to hear and determine issues touching on children`s welfare which includes their maintenance. The Honourable Kadhi dismissed the Preliminary Objection and held that he had the necessary jurisdiction to hear the matter. The appellant was aggrieved by the decision and lodged the instant appeal based on the grounds that: 1. That the learned Hon. Kadhi erred in failing to be guided by the provisions of Article 170 (5) of the Constitution in dismissing the Preliminary Objection raised by the Appellant on the issue of jurisdiction. . That the learned Hon. Kadhi misconstrued and misapplied the provisions of Article 162 (2) (b) and 170 (5) of the Constitution in dismissing the Appellant’s Preliminary Objection on jurisdiction. 3. That the learned Hon. Kadhi erred in law in failing to find that the Kadhi’s court does not have jurisdiction on matters involving children’s welfare. The appellant sought to have an order setting aside the Honorable Kadhi’s ruling dated 7th November, 2024 dismissing the Preliminary Objection raised by the Appellant on its jurisdiction and substitute the same with an order allowing the Preliminary Objection. Submissions 5. The appeal was disposed of by way of written submissions of the respective counsels appearing for the parties. The appellant filed submissions dated 25th March, 2025. Counsel for the appellant quoted the provisions of Article 170 (5) of the Constitution and submitted that the Kadhi’s court will only have jurisdiction to hear a matter before it if both parties submit to its jurisdiction. That in this case, the Respondent did not submit to the jurisdiction as indicated in the Response to Petition dated 9th August, 2024 and as such, the Kadhi’s court ought not to have proceeded to hear and determine the Petition. Counsel relied on the case of HCSC No. 301 of 2014 where Justice Muriithi had the following to say on the submission to Kadhi`s court: “ It is clear from the textual provision of Article 170(5) of the Constitution that the jurisdiction of the Kadhi’s Court is limited to questions relating to personal status, marriage, divorce or inheritance, in proceedings where all the parties profess Muslim religion and submits to the jurisdiction of the Court. It appears to me that the primary purpose of the article 170 is to preserve a forum for the resolution of disputes as to personal law matters of Muslims as existed before the Constitution of Kenya 2010 under section 69 of the former Constitution. The new Constitution, however, recognized and gave effect to the right of Muslims to choose to utilize the regular system of adjudication through the High Court. This right of choice is consistent with the constitutional value of “liberty of the person embodied in the principles of “human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized” under Article 10(2) (b) of the Constitution. To compel all Muslims to subject themselves to the jurisdiction of the Kadhi’s Court would be contrary to all notions of choice which is the basis of rights and freedoms in the Bill of Rights. Hence the provision for the Muslims to subject, rather than compulsion to subject themselves, to the jurisdiction of the Kadhi’s Court.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16670/eng@2025-10-30 2

page 2 of 6

6. On the issue touching on the maintenance and custody of children, the appellant submitted that the Kadhis Court did not have jurisdiction to hear such disputes based on the decision of HCFA No. 47 of 2017 where Justice A.O. Muchelule held as follows; “ Under Article 170 (5) of the Constitution, the Kadhi’s court’s jurisdiction is limited. It can only deal with questions of Muslim law relating to personal status, marriage, divorce or inheritance. It has no jurisdiction to hear and determine matters concerning children. in A.A.I vs H.A.D (2018) eKLR, a Kadhi’s court in Mombasa had dissolved the marriage between the parties and granted custody of the children to the respondent with reasonable access to the appellant. The High court determined that the Kadhi’s court’s assumption of jurisdiction over the issue o custody o the children was unlawful. The court had exceeded its jurisdiction. Under Section 73 of the Children Act, Children’s courts have been constituted under the Act to hear all matters concerning children, including custody and maintenance of children. such courts are, by a Gazette Notice, appointed by the Chief Justice. There was no evidence that the Kadhi’s court that heard and determined this dispute was a children’s court, properly so designated.” 7. On the dispute over the property, the appellant submitted that the Respondent pleaded that the suit property belonged to her parent and sought for eviction orders. It was his submission that this was a dispute of ownership over the house and Kadhi`s court has no jurisdiction to hear land ownership disputes as it is not one of the elements stated in Article 170 (5) of the Constitution which limits the said court’s jurisdiction to personal status, marriages, divorce and inheritance. Counsel submitted that the Court that has jurisdiction to determine land ownership disputes is the Environment and Land Court as provided by Article 162 (2) (b) of the Constitution. He urged the court to strike out the Petition with costs. 8. The Respondent on the other hand filed submissions dated 9th July, 2025. Counsel submitted that the Kadhi’s Court has jurisdiction to hear and determine divorce causes where all parties profess the Islami faith. That the Petition before the Kadhi is a divorce cause based on the prayers being sought. Analysis and determination 9. 10. I have considered the grounds of appeal, the grounds in opposition thereto and the submissions tendered by the respective advocates for the parties. The issues for determination relate to the jurisdiction of the Kadhi`s court on: (1) Whether the appellant submitted to the jurisdiction of the Kadhi`s court. (2) Whether the Kadhi`s court has jurisdiction to hear and determine issues touching on maintenance and welfare of children. (3) Whether the Kadhi`s court has jurisdiction in a dispute over matrimonial property. It is accepted that a court of law can only exercise power and jurisdiction which is given to it by the Constitution or by enabling statute. In Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 others (2012) eKLR the Court held as follows on the issue of jurisdiction of a court: “ A Courts jurisdiction finds from either the Constitution or legislation or both. Thus, a Court of Law can only exercise jurisdiction as conferred by the Constitution or other written Law. It cannot arrogate to itself jurisdiction exceeding that which is conferred unpaid by Law…… https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16670/eng@2025-10-30 3

page 3 of 6

jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matters, for without jurisdiction the Court cannot entertain any proceedings ……..” 11. The Kadhi’s Court is a creature of Article 170(5) of the Constitution which states that: “ The jurisdiction of a Kadhi’s Court shall be limited to the determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s Court.” 12. Section 5 of the Kadhi’s Court Act provides that: “ A Kadhi’s court shall have and exercise the following jurisdiction, namely, the determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion, but nothing in this section shall limit the jurisdiction of the high court or of any subordinate court in any proceeding which come before it”. 13. It is clear from both the constitution and legislation that the jurisdiction of the Kadhi`s Court is limited to determination of matters relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion. This means that that even where both parties are Muslims, the jurisdiction of the Kadhi`s court is curtailed by the choice of a party not to submit to the jurisdiction of the Kadhi`s court. In this case the appellant chose not to submit to the jurisdiction of the Kadhi`s court. He cannot be compelled to submit to the jurisdiction of the Kadhi`s court as this is a right protected by Article 175 of the constitution of Kenya, 2010. Consequently, the objection of the appellant is upheld on this ground. 14. On the question of jurisdiction involving children matters, I take guide in the provisions of the Children Act No.8 of 2001 which provides as follows: “ An Act of Parliament to make provision for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children: to make provisions for the administration of children’s institutions; to give effect to the principles of the convention on the Rights of the child and the African Charter on the Rights and Welfare of the child and for connected purposes” 15. It is clear from the above provision that the Children Act offers comprehensive legislation over children matters. This means that any matter to do with a child must be directed to the Children’s Court without any discrimination on the basis of race, gender and religion. It would follow therefore that the issues relating to the welfare of the children as sought in the Petition fall within the domain of the Children’s Court and not the Kadhi’s court. Nothing in the Kadhi`s Court Act states expressly that that court has jurisdiction on children matters. I am in agreement with the judgment of Muchelule (as he then was) as cited above that the Kadhi’s Court has no jurisdiction to adjudicate over children matters. The objection of the Kadhi`s court determining children matters is therefore upheld. 16. On the issue to do with the dispute over the ownership of a house between the two parties, the petitioner avers that the house belongs to both the appellant and the Respondent and would therefore https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16670/eng@2025-10-30 4

page 4 of 6

seem that the house in dispute is matrimonial property. Section 3 of the Matrimonial Property Act, 2013 (Act No. 49 of 2013) states as follows: “ A person who professes the Islamic faith may be governed by Islamic Law in all matters relating to matrimonial property.” 17. The court in AWA v HDD (2018) eKLR stated the following on the application of section 3 of the Matrimonial Property Act, 2013 (Act No. 49 of 2013): “ Although Article 170 (5) of the Constitution gives the Kadhi’s jurisdiction to determine only four issues namely personal status, marriage, divorce and inheritance, section 3 of the Matrimonial Property Act add another jurisdiction to the Kadhi’s court to deal with matters relating to the matrimonial property where a person profess the Islamic faith. It is true that section 3 of the Matrimonial Property Act does not limit the power to determine matters relating to matrimonial property of a Muslim to the Kadhi’s court only, it is clear to me that the best court that can determine issues involving the Islamic faith is the Kadhi’s court. As held in the case of MSR v NAB, a dispute involving Matrimonial Property of a Muslim can be heard by either the subordinate court including the Kadhi’s Court or the High Court provided that the Islamic law is used as the determinant factor. In this case both parties profess the Islamic faith. There is a dispute relating to one house. Whether the dispute is heard by this court or by the Kadhi’s court it does not matter. I do find that both courts have the jurisdictions to determine the dispute.… The Matrimonial Property Act does not define the Court where such disputes are to be heard. Section 17 of the Act provides that a person may apply to a Court for a declaration of rights to any contested property. To say that section 3 of the Act does not confer jurisdiction to the Kadhi’s Court is tantamount to clawing back the underlying principle of applying Islamic Law to matrimonial property to the Muslim faithful.” 18. The Kadhi’s court therefore has jurisdiction to determine issues on matrimonial property and although Section 3 of the Matrimonial Property Act allows the application of Islamic law on matrimonial property, the Act does not specify the court where such a dispute has to be heard. Consequently, disputes involving Matrimonial Property of a Muslim can, in my view, can be heard by either the Kadhi’s Court, the High Court or by the magistrate`s courts provided that Islamic law is used as the determinant factor. 19. However, since the jurisdiction of the Kadhi`s court is limited by the choice of a party to submit to the jurisdiction of the Kadhi`s court and the appellant herein did not submit to the authority of the Kadhi`s court, that robbed the Kadhi`s court of the jurisdiction to hear the dispute over the house in the present matter. As stated earlier, the appellant cannot be compelled to submit to the Kadhi`s court as this is a personal choice guaranteed by the constitution. The dispute over the house should therefore be heard at the magistrates`s court with the necessary pecuniary jurisdiction. 20. In view of the foregoing, the appeal herein is upheld. I accordingly make the following orders: (1) The divorce proceedings between the parties to proceed at the Kadhi`s Court at Lamu. (2) The dispute over maintenance and welfare of the couple`s children to be filed at the Children`s Court at Lamu. (3) The dispute touching on the house to be filed, at the magistrate`s court with the necessary pecuniary jurisdiction over matrimonial property. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16670/eng@2025-10-30 5

page 5 of 6

21. Since the appeal herein involves a husband and his wife, I order each party to bear its own costs to the appeal. DELIVERED, DATED AND SIGNED AT GARSEN THIS 30TH DAY OF OCTOBER, 2025. J. N. NJAGI JUDGE In the presence of: Respondent Counsel for Appellant absent Court Assistant - Rahma https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16670/eng@2025-10-30 6

page 6 of 6