Ayh v Zam

3. It was alleged that at the time of divorce, the appellant provided a bed and a mattress which had since grown old. She further averred that the appellant ceased providing for the minor thus abandoning his parental obligations. 4. The appellant filed a statement of defence dated 03.05.2023 denying the averments by the respondent and further urging that being the biological father of the minor, he had been denied access to the minor. He went further to state that he was financially constrained as he had a huge pending bill in the university where he is pursuing further studies; he has since remarried and blessed with three children and that he is the one taking care of his elderly parents. 5. He further averred that the minor’s mother, the respondent herein was not able to take care of the minor for the reason that she is ever travelling thus not giving due attention to the minor in question. It was his allegation that the said minor had become malnourished and sickly due to the reason that he lacked proper attention from his mother. In the same breadth, he pointed out an occasion when the minor was sick and the father and relatives of the respondent declined to allow him access to his son thus prompting him to report the matter via OB No. 16/03/02/2023 at Mandera Police station. 6. He urged the trial court that it lacked the requisite jurisdiction to deal with the matter herein as the same ought to have been handle by a court with competent jurisdiction in this case the Children’s Court. He also prayed that he be granted custody of the minor. 7. The trial court directed the parties to file their respective affidavit of means. 8. The appellant thus filed an affidavit of means sworn on 07.09.2023 and further annexed his pay slip for the month of August, 2023. It was deposed that he is an employee of Mandera County holding the position of Nutrition Officer since 06.04.2017. That his salary was his only source of income and further, he had three more children from his current marriage. He averred that on a monthly basis, he incurs an amount of Kes. 35,000/- as utility bills and further, a sum of Kes. 61,000/- per semester as university tuition. In the same breadth, he was obligated to pay Kes. 6,000/- towards maintenance of the minor herein. That after meeting all these expenses, he remains with a negative figure as he lives beyond his means. 9. The respondent equally filed a pleading which she referred to as an affidavit thus reiterating the fact that the parties herein are parents to the minor in question. It was deposed that she is currently pursuing a degree at the [Particulars Withheld] University and therefore, is unemployed. She urged the court that given the prevailing conditions, the court ought to enhance the monthly maintenance as remitted by the appellant from Kes. 6,000/- to 10,000/-. 10. Similarly, she averred that the appellant had defaulted in remitting the said monthly maintenance for a period of 8 months and therefore, the court should compel him to support the minor. She urged the court to grant her prayers. 11. PW1, ZA testified that she got married to the appellant while in form three and from the said union they were blessed with the minor in question. She stated that the marriage did not work as expected and therefore, the parties divorced prompting her to go back to school. That she completed her secondary school and thereafter got admitted at [Particulars Withheld] University. She averred that the appellant abdicated his responsibilities towards the minor and it took the elders’ intervention when the appellant was directed to pay Kes. 6,000/- as maintenance for his child. She averred that the child lacked medical care and other basic needs. That upon the appellant learning that she had gone to Nairobi to pursue further education, the appellant started harassing her while demanding actual custody of the minor to him noting that she was absent during the school going sessions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19611/eng@2025-04-08 2

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12. On the other hand, DW1, the appellant herein testified that in as much as he married the respondent, at that time, the respondent was aged 18 years hence not a child. That their marriage lasted two years after which he divorced the respondent due to her infidelity. He stated that after the elders determined that he pays Kes. 6,000/- as maintenance of the minor, he has been fully complying with the same. 13. He alleged that the minor herein does not live with the respondent and therefore, the Children’s Officer advised him not to remit the monthly maintenance. It was his evidence that he has since remarried and blessed with three children. He urged the trial court to grant him custody of the minor in question. 14. Upon conclusion of the case, the learned Kadhi rendered his decision on 13.02.2024 thus holding that: 15. 16. i. Custody of the minor be granted to NNA; the plaintiff’s mother and the defendant allowed visitation. ii. The plaintiff to assume custody of the minor after completion of her studies and submit to the court within two weeks’ tentative date of completion of her studies. iii. The defendant to pay maintenance arrears of seventy – eight thousand shillings within 60 days. iv. The defendant to pay monthly maintenance of Kes. 10,000/- with effect from 01.03.2024. v. The defendant to include the minor in his medical cover and submit confirmation of inclusion of the said minor in the Mandera County Government medical scheme and NHIF. vi. The defendant to take care of education expenses of the minor. Aggrieved by the said judgment, the appellant preferred the instant appeal against the judgment by filing a memorandum of appeal dated 26.02.2024 citing grounds that: i. The learned Kadhi erred in law and in fact by wrongly finding and declaring the custody of the minor be granted to Nuria Nurow Abdullahi without any legal justification. ii. The learned Kadhi erred in law by failing to consider the detailed evidence tendered by the appellant. iii. The learned Kadhi erred in law when he reached a finding not supported by the facts and the law when he ordered that the appellant remit to the respondent a monthly maintenance of Kes. 10,000/-. The appellant sought for orders that: i. The appeal be allowed. ii. The judgment by the Hon. Kadhi delivered on 13.02.2024 be set aside in its entirety. iii. The Honourable Court grants the appellant the custody of the minor herein. iv. Costs of the appeal. v. Any other relief that this Honourable Court may deem fit to issue. 17. The appeal was canvassed by way of written submissions. 18. The appellant via written submissions dated 13.08.2024 submitted in regards to the following issues: i. Whether the Kadhi’s Court had the jurisdiction to hear and determine the custody and maintenance case filed by the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19611/eng@2025-04-08 3

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ii. Whether the Kadhi’s Court was erroneous in granting custody of the minor to the grandmother. iii. Whether the present appeal is merited. iv. The costs of the appeal. 19. On the first issue, the appellant submitted that article 70 of the constitution provides for the jurisdiction of the Kadhi’s court as limited to the determination of questions of Muslims law relating to personal status, marriage, divorce or inheritance in proceedings in which all parties are Muslims. 20. In faulting the trial Kadhi for having entertained a matter which it had no jurisdiction, reliance was placed on the case of Republic vs Karisa Chengo, Jafferson Kalama Kerigha & Kitsao Charo Ngati [2017] eKLR where the court emphasized that jurisdiction is everything without which a court of law acts in vain. 21. It was urged that what was pending determination before the court was purely custody and the maintenance of the minor and nothing to do with personal status as the parties had previously divorced. The appellant faulted the court for failing to address the issue of jurisdiction even after raising it up in his pleadings. That to that end, the appellant did not submit himself to the jurisdiction of the court and as such, the Kadhi’s court had no jurisdiction to proceed and hear the matter that was before it. 22. The rest of the issues were merged and argued together that the Children’s Act prioritizes a parent as the best person to be granted custody unless for good reason. That the trial court did not give any reason as to why the appellant could not be granted custody of the minor. It was urged that in matters of custody of a child of tender age, the mother is considered the proper person to be granted custody except where there are exceptional circumstances. That the Court was presented with evidence that the respondent was not in a position to take care of the minor and without any reason, proceeded to grant custody to the grandmother of the minor thus skipping the second opportunity, the appellant herein. 23. That the appellant, also a parent to the minor has means to take care of the minor and it was not demonstrated why he could not be granted custody. In the same breadth, it was argued that no Children’s Officers report was filed to give the trial Kadhi a glimpse of the status, living conditions of the minor at his grandparent’s home or to ascertain the relationship between the minor and the appellant. In the end, this court was urged to allow the appeal and grant custody of the minor to the appellant. 24. On the other hand, the respondent filed written submissions dated 23.07.2024 wherein she urged this court to uphold the determination by the trial Kadhi. That it was not doubted that the parties are the parents of the minor in question and therefore, both parties are obliged to provide for the minor. It was urged that noting that the minor is approaching school going age, it was imperative that the appellant be compelled to provide maintenance in recognition of the provisions of article 53 of the constitution. That a court should not make an order in vain and therefore, the appellant should be found under duty to provide the Kes. 10,000/-. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19611/eng@2025-04-08 4

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Kadhi’s opinion 25. The Court heard the appeal with the aid of two assessors pursuant to section 65 (1) (c) of the Civil Procedure Act, which provides for appeals to the High Court from original decree of a Kadhi’s Court as follows: “ c) from a decree or part of a decree of a Kadhi’s Court, and on such an appeal the Chief Kadhi or two other Kadhis shall sit as assessor or assessors.” 26. For the hearing of this appeal, the court sat with Kadhis A. J. Ishaq Hussein and Muriithi N. Muruiki who submitted an opinion dated 10.02.2025 to wit that the averment by the appellant that the trial Kadhi had no jurisdiction to try the matter, there are two schools of thought. That there is a school of thought that states that indeed the Kadhi’s court is possessed of the requisite jurisdiction to try matters related to children. To that end, a myriad of authorities was listed. A case in point is ZUDG vs SJKUR [2020] eKLR where Aroni J. (as she was) stated that lately, all magistrates have been gazetted to handle children matters and it’s this court’s considered view, by implication Kadhis too being in the category of magistrates should and ought to hear such matters and more so where the same are connected and incidental to the cause before the Kadhi, so long as the court applies the principles laid down by the Children’s Act and in particular applies the best interest of the child’s principle as enunciated by the said Act. 27. To that end, the learned Kadhis urged that the foregoing determination cements the fact that indeed the Kadhi’s court is endowed with the requisite jurisdiction to determine issues of custody and maintenance of children. 28. That in determining whether the Kadhi erred in granting custody to a non – party and whether there was sufficient evidence to justify denying the appellant custody, it was opined that it was procedurally improper for the Kadhi to grant the minor to the respondent’s mother noting that she was not a party to the proceedings herein. That the principle of Al Mukhdah lahu demands that for a person to benefit from a judgment he/she must have been a party to the cause and whose testimony was admissible in court. 29. That even for a moment, were the grandmother to the minor a party in the cause before the Kadhi, then the court ought to prioritize the principle of best interest of the minor over the jurists’ opinions. That the grant of the minor to his grandmother was done without demonstration that indeed, the appellant herein was unfit to have custody of the minor in question. 30. On maintenance, the learned Kadhis opined that the finding by the Kadhi lacked proper evidential foundation. That while the respondent in her pleadings demanded Kes. 18,000 as arrears for three months, the court inexplicably ordered Kes. 78,000/- without any justification. In the same breadth, they opined that the court’s order of increasing monthly maintenance to 10,000 /- was made without interrogating the child’s needs or the appellant’s ability to shoulder the same. 31. Finally, that the learned Kadhi wholly adopted scholars’ opinion thus disregarding the evidence hence reaching an unsupported determination was an error. 32. In as much as this court is not bound by Kadhis A. J. Ishaq Hussein and Muriithi N. Muruiki’s findings, it is important to note that the court has considered their guidance to guide it reach a logical conclusion of this matter. 33. This being the first appellate court, it is thus bound to reconsider, re- evaluate and re-assess the evidence tendered before the trial court together with the assessors’ opinions and arrive at an independent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19611/eng@2025-04-08 5

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determination without losing sight of the fact that the trial court had the advantage of seeing and listening to the witnesses to be able to assess their general demeanour. [See Selle and another vs Associated Motor Boat Co. Ltd and others (1968) E.A 123 and Peters vs Sunday post limited (1958) E.A 424]. 34. I have considered the record of appeal, grounds of appeal, submissions by the parties and the assessors’ opinions. Issues that germinate for determination are; i. Whether the trial Kadhi was possessed with the requisite jurisdiction to determine the matter herein? ii. What is the best interest of the minor herein? 35. Article 170 (5) of the constitution provides for the jurisdiction of the court in the following terms:-“The Jurisdiction of a Kadhi’s Court shall be limited to the determination of question 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 courts” 36. In the same breadth, the jurisdiction of the Kadhi’s Court is provided under section 5 of the Kadhis’ Court Act as follows: “ 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 comes before it.” 37. This court is alive to the fact that custody and maintenance of children may fall within the jurisdiction of the Kadhi’s Court when the proceedings before the Kadhi are connected and incidental to the cause before it. 38. In finding that the Kadhi’s Court had jurisdiction to issue the orders of maintenance and custody, this court is counseled by ZUDG vs SJKUR (supra) eKLR, where the court (Ali-Aroni J as she then was) stated: “ This court for now, aligns itself, so did the Kadhis who sat in this matter with the thought that the Children’s Act did not oust the jurisdiction of the Kadhi or other subordinate courts in dealing with issues of children. Indeed, lately all magistrates are gazetted to handle children matters and in this court’s considered view, by implication Kadhis too being in the category of magistrates should and ought to hear such matters and more so where the same are connected and incidental to the cause before the kadhi, so long as the said court applies the principles laid down by The Children’s Act and in particular applies the best interest of the child’s principle as enunciated by the said Act.” 39. In the instant case, a line has been drawn in that, the appellant has questioned the jurisdiction of the Kadhi’s court to deal with maintenance and custody of children as stand-alone issues. The same is not controverted as the pleadings by the respondent specifically sought for orders related to maintenance and health of the minor. Of importance to note is the fact that parties herein had previously divorced and therefore, the issues for determination before the trial Kadhi were those of maintenance and health care for the minor as already mentioned. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19611/eng@2025-04-08 6

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40. The foregoing being the position, the competency and propriety of the suit before the Kadhi’s court would be dependent on whether the Kadhi’s court is possessed of jurisdiction to deal with matters relating to the wellbeing of the children filed as stand-alone issues. 41. It is notable that in both the aforementioned constitutional and provisions of the law, a Kadhi’s court is not conferred with jurisdiction to deal with children matters similar to those that fell due for determination before the trial Kadhi. Such matters fall within the domain of the Children Act of 2022 which at the introductory part provides as follows :“ An Act of Parliament to give effect to Article 53 of the Constitution; to make provision for children rights, parental responsibility, alternative care of children including guardianship, foster care placement and adoption; to make provision for care and protection of children and children in conflict with the law; to make provision for, and regulate the administration of children services; to establish the National Council for Children’s Services and for connected purposes” 42. Section 91 of the children Act does specify the jurisdiction of children’s courts in both civil and criminal matters. There is no mention of a kadhis courts. Kadhis courts cannot assume jurisdiction they do have constitutionally or statutorily. Even magistrates unless gazette, they cannot touch those case. Gazettement is a pre-requisite for any judicial officer to entertain a children matter as a court of first instance. Kadhis are not gazetted for that purpose hence encumbered or incapacitated by law. 43. 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 appellant’s argument that the trial Kadhi was bereft of the requisite jurisdiction to determine what was pending determination before the court was right. I say so for the reason that the parties herein had since divorced and were living their separate lives. Additionally, it is trite that a litigant is bound by his/her own pleadings. [ See the decision of the Supreme Court of Kenya in Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR]. 44. It is apparent that the impugned suit ought to have been presented and/or filed before a Children’s Court as opposed to the Kadhi’s Court. Thus, the suit was incompetent and improper before the Kadhi’s court for want of jurisdiction thereby rendering the proceedings null and void together with the decrees accruing from the impugned judgment. The moment the issue of lack of jurisdiction came up, the Hon.Kadhi should have downed his tools in obedience to the holding in Motor Vessel “LilianS” versus Caltex Oil(Kenya) Ltd (1989) KLR1. 45. Having held that a kadhi’s court has no jurisdiction to handle children matters save where children rights are intertwined with other issues falling under Section 5 of the Kadhis’s Act or Article 170 of the constitution, it would be prejudicial to determine the rest of the issues as it will jeopardise the possible outcome when the matter is eventually filed before the right court. In that regard, I am inclined to uphold the appeal in its entirety. Consequently, the judgment of the trial court and its consequential orders is hereby set aside. Parties shall be at liberty to approach the right court with jurisdiction for the necessary redress. As to costs, this a family related issue. I will order that each party bears own costs. DATED, SIGNED AND DELIVERED THIS 8TH DAY OF APRIL 2025. J. N. ONYIEGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19611/eng@2025-04-08 7

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