Asy v Zzi

4. The suit proceeded to full hearing and on 15th December 2023, the Honourable trial Kadhi delivered judgment in the suit where the marriage was annulled. Further, the Appellant was ordered to pay Kshs. 300,000/= as Matta ‘a to the Respondent, to also settle all the then outstanding child maintenance arrears and to pay a monthly child maintenance of Kshs. 25,000/=. Whereas the actual custody of the minor was granted to the Respondent, the legal custody was shared between the parents. 5. It was the above decision that aggrieved the Appellant and who subsequently filed the instant appeal. The Appeal: 6. Through a Memorandum of Appeal dated 27th November 2024, the Appellant advanced the following grounds of appeal: i. The learned Senior Resident Kadhi, erred and misdirected himself in law and in fact by excessively quoting the payment of Matta ‘a at Kshs. 300,000/= ii. The learned Senior Resident Kadhi erred and misdirected himself in law and in fact by excessively capping the monthly support of one minor at Kshs. 25,000/= per month without taking into account the net monthly income from salary of the Appellant and without proper reasons thereof iii. The learned Senior Resident Kadhi erred and misdirected himself in law and in fact by failing to consider that parental duties and responsibilities should be shared by both parties iv. The learned Senior Resident Kadhi erred and misdirected himself in fact by failing to consider the net salary by the Appellant which is Kshs. 61,000/= before proceeding to pronounce Judgement of payment of Kshs. 25,000/= per month as child support and further, failing to consider and/or putting into consideration the evidence and the documents relied upon by the Appellant. v. The learned Senior Resident Kadhi erred in law and in fact by acting beyond his powers in determining matters of children without having jurisdiction going against the provision of Article 170(5) of the Constitution of Kenya, 2010. The Submissions: 7. In his written submissions dated 12th March 2025, the Appellant grouped the arguments into three main themes namely: the quantum of Matta ‘a, the quantum of maintenance/shared responsibility, and the jurisdiction of the Kadhi’s Court. On the issue of Matta ‘a, the Appellant argues that the award of Kshs. 300,000/= is excessive and failed to consider his financial ability. He submitted that he earns a net salary of Kshs. 61,000/= and has other responsibilities, including another family and elderly parents. He relied on the case of ZAG -vs- VOM (Divorce Cause E087 of 2022) and SMAK -vs- RAK (Divorce Cause 44 of 2018) to define Matta ‘a as a gift based on financial ability and argued that it is generally not entitled to a wife who elects to be divorced or requests Khul’. He contended that since the Respondent filed the Petition, she elected to be divorced and is thus not entitled to such a high award. 8. On quantum of maintenance and shared responsibility, the Appellant submitted that the order of Kshs. 25,000/= per month was punitive and impracticable against his net salary of Kshs. 61,000/=. He argued that the trial court failed to consider that parental responsibility is shared under Article 53(1)(e) of the Constitution and Section 32 of the Children’s Act, 2022. The Appellant cited the case of AWM vs- JWW [2022] eKLR and Re AHM & AWM (Minors) [2023] KEHC 19732, to front the argument https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2986/eng@2026-03-09 2

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that maintenance orders must respect the financial status of the parent and that the Respondent should also contribute to the child’s upkeep. He proposes a reduced maintenance of Kshs. 5,000/= per month. 9. On jurisdiction, the Appellant challenged the authority of the Kadhi’s Court to determine matters of children. It was his case that Article 170(5) of the Constitution as read with Section 5 of the Kadhi’s Courts Act limit jurisdiction to personal status, marriage, divorce, and inheritance, and do not explicitly include children’s custody and maintenance. To that end, he drew support from the case of Republic -vs- Kadhi’s Court Nairobi & 2 Others Ex-Parte T L [2018] eKLR to submit that children’s matters should be determined by the Children’s Court. The Respondent’s case: 10. The Respondent opposed the appeal via written submissions dated 22nd April 2025. On the issue of Matta ‘a, The Respondent supported the trial court’s award, arguing that Matta ‘a is a consolatory gift to lessen the harm of divorce. She relied on the authority in ZUDG -vs- SJKUR [2020] eKLR and Rule 159 of the Kadhi’s Court Rules to support the entitlement. It was her position that the Appellant is a man of means working as a Senior Supervisor at NHIF (now SHIF) and running side businesses, and that his allegation of supporting siblings is untrue as they are employed. 11. The Respondent submitted that the divorce was at the Appellant’s instigation (via Talaq) and due to his cruelty, which justified the compensation. As pertains maintenance, The Respondent contended that the Appellant has the financial capacity to pay the awarded Kshs. 25,000/= and that he failed to file a proper Affidavit of Means beyond a payslip to prove his inability. She maintained that the award is reasonable for the minor’s sustenance. 12. Finally, on the issue of jurisdiction, the Respondent submitted that the Kadhi’s Court has jurisdiction to hear children’s matters. She argued that a purposive interpretation of Article 170(5), as held in ZUDG -vs- SJKUR [2020] eKLR, confers jurisdiction on the Kadhi’s Court to determine custody and maintenance as they are incidental to divorce proceedings. She further cited the case in TS -vs- SHSR (2019) eKLR to argue that the jurisdiction of the Children’s Court is not exclusive. 13. In the end, the Respondent prayed for the dismissal of the appeal with costs. Issues for Determination: 14. The appeal was heard by way of written submissions and thereafter both Counsel were granted the liberty to highlight on the submissions. The hearing was before Hon. Justice A. C. Mrima who sat alongside Hon. Mukhtar Billow Salat [Senior Principal Kadhi] and Hon. Hassan Omar Daffa [Principal Kadhi] as assessors in line with Section 65 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya. 15. Based on the grounds of appeal, the rival submissions and the decisions referred to thereto, the following issues emerge for determination: i. Whether the Kadhi’s Court had jurisdiction to hear and determine matters relating to the custody and maintenance of children. ii. Whether the learned Senior Resident Kadhi erred in law and fact in awarding Matta ‘a of Kshs. 300,000/= iii. Whether the award of Kshs. 25,000/= per month as child maintenance was excessive and whether the trial court failed to appreciate the principle of shared parental responsibility. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2986/eng@2026-03-09 3

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Analysis: 16. The jurisdiction of the High Court as an appellate Court from the decisions of the Kadhi’s Court is donated by Section 65 of the Civil Procedure Act and is on both facts and law. Therefore, as the first appellate Court, this Court is under a duty to re-evaluate the evidence tendered before the trial Court and reach its own independent findings, while keeping in mind that it did not have the advantage of seeing the witnesses testify. The foregoing was the postulation in Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the Court stated thus: …. This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority vs Kustron (Kenya) Limited 2000 2EA 212. 17. This Court will now deal with the above issues in seriatim. (a) Whether the Kadhi’s Court has jurisdiction to determine matters of child custody and maintenance: 18. The Appellant challenged the jurisdiction of the Kadhi’s Court, arguing that Article 170(5) of the Constitution restricts the Court’s mandate to personal status, marriage, divorce or inheritance. He relied heavily on the decision in Republic -vs- Kadhi’s Court Nairobi & 2 Others Ex-Parte T L [2018] eKLR, where it was held that matters of children are the exclusive province of the Children’s Court. Conversely, the Respondent argued for a purposive interpretation, suggesting that custody and maintenance are inextricable components of divorce and personal status under Islamic Law. 19. Article 169(1)(b) of the Constitution established the Kadhis’ Court as one of the subordinate Court’s in Kenya. Article 170(1) of the Constitution sets out the structure and composition of Kadhi’s Court as follows; 170. Kadhis’ Courts. (1) 20. There shall be a Chief Kadhi and such number, being not fewer than three, of other Kadhis as may be prescribed under an Act of Parliament. The jurisdictional bounds of Kadhis’ Court are further prescribed by Article 170(5) of the Constitution as follows: The jurisdiction of a Kadhis’ 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 courts. 21. The Kadhis’ Courts Act, Cap. 11 of the Laws of Kenya also sets out the jurisdiction of the Kadhis’ Courts in Section 5 as follows: 5. Jurisdiction of Kadhis’ Courts 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2986/eng@2026-03-09 4

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shall limit the jurisdiction of the High Court or of any subordinate court in any proceeding which comes before it. 22. Whereas it is notable that the Constitution and Section 5 of the Kadhis’ Courts Act do not explicitly use the word children, this Court is of the very considered position that issues of custody and maintenance of children are inextricably incidental to the dissolution of any marriage let alone a Muslim marriage. More significantly, Article 53(1)(e) of the Constitution provides for every child’s right to parental care and protection, which includes equal responsibility of the mother and the father to provide for the child, whether they are married to each other or not. A further constitutional command is in Article 53[2] to the effect that a child’s best interests are of paramount importance in every matter concerning the child. This calling is also replicated in Section 8 of the Children Act, Cap. 141 of the Laws of Kenya. 23. Having said so, and without looking any further for tools of constitutional interpretation, it is textually apparent that the Constitution does not draw a distinction along religious lines when it comes to entitlement due to a child. It simply protects ‘every’ child. Both the Constitution and the Children Act provide a comprehensive framework for the protection of all children regardless of religion. In any case, Article 53 of the Constitution is the primary lens through which all children’s matters must be viewed. 24. At this point in time, it is important look at both the constitutional and legislative intention as far as the phrase 'personal status' is concerned and as dealt with by various Courts. In Amin Mohammed Hassan v Zahra Mohammed Abdulkadir (2009) eKLR, the Court captured the meaning the phrase ‘personal status’ as defined in the Black’s Law Dictionary as follows: A person’s legal condition whether personal or proprietary; The sum total of a person’s legal rights, duties, liabilities and other legal relations or any particular group of them separately considered. 25. Building on the foregoing, the Court held that the issue of the custody and maintenance of children was properly before the Kadhis Court since matters relating to maintenance and custody of children fall into the category of ‘personal status.’ The Court went further to state as follows: …… Section 185 of the Children Act gave discretion to Courts other than the Children court to refer matters touching on children to the Children Court. The Act uses the word ‘may’ instead of ‘shall’ alluding that the Kadhi’s court or any other courts had jurisdiction to entertain children matters as long as the best interest of the child is taken in to account as per the provisions of Children Act. 26. In another decision, the Court in ZUDG vs SJKUR (2020) eKLR had the following to say: …. there are varied opinions of Courts of concurrent jurisdiction on this matter and it is probably time that Court of appeal adjudicates on the same and settles the issue. This Court for now aligns itself, so did the Kadhis who sat in this matter with the thought that Children’s Act did not oust the jurisdiction of the Kadhi or other subordinate Court 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 apply the principles laid down by children’s Act and in particular applies the best interest of the Child’s principle as enunciated by the said Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2986/eng@2026-03-09 5

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27. In Eggers v Eggers, 82 S.D 675 (S.D 1967) the Court held that: …. It is well settled that a divorce Court has continuing jurisdiction over its decrees for alimony, separate maintenance, and custody and support of children. 28. In Abdirahman Mohamed and another v Adan Yussuf (2013) eKLR it was held that; …paternity and custody of the child in this case are incidental to the issues of marriage and divorce between the Appellants and thus it falls under the jurisdiction of the Kadhi’s court. 29. The above jurisprudential position corroborates the legal concept of personal status under Islamic legal system as illuminated by distinguished Islamic Scholars in Islamic Jurisprudence and Evidence; Zakiyudhini’s ‘Al-Ahkam Ash-Shar’iyyah Lil A hwaal Ash-Shakhsiyah (1993). -(Sharia Rules on Personal Status, Doi in ‘Shariah: The Islamic Law’ (1984); and Zuhayli’s‘Fiqh Al-Islam WaAdillatuhu’(20 07), where it was stated thus: …. personal status is conceptualized in a broader category of jurisprudential questions pertaining to status of the person in relation to rights, duties and liabilities he or she owes to family rights from the founding of a family to distribution of estate upon death. 30. It is of essence to note that the Children Act neither expressly ousted the jurisdiction of Kadhis Court nor did it repeal any provision that give power to other Courts. It can, therefore, be safely summed up that questions of custody, care and control of children upon grant of a divorce by a Kadhis Court can still and properly be dealt with by the Kadhis Court as the Court has constitutionally anchored continuing and residual jurisdiction to resolve all issues incidental to divorce, such as alimony, guardianship, custody and maintenance of children. 31. While still on this jurisdictional issue, this Court’s attention is drawn to Article 48 of the Constitution which provides for the right to all persons to access justice. If it were that parties are to deal with the issue of divorce before the Kadhis’ Court and then proceed to file separate proceedings for maintenance and custody before the Children’s Court, then no doubt the right under Article 48 will be impeded. It will not only be expensive in terms of costs, but also time consuming thereby resulting to derogation of Article 159[2][b] of the Constitution which calls for expediency in dispute resolution. 32. Having so said, this Court finds and hold that the trial Court did not err in assuming jurisdiction over the custody and maintenance of the minor. (b) Whether the Learned Senior Resident Kadhi erred in law and fact in awarding Matta ‘a of Kshs. 300,000/=: 33. Rule 159 of The Kadhis’ Courts (Procedure and Practice) Rules provides as follows: 159. Gift to divorced wife (Matta’a): 1. A woman who has been divorced by her husband may apply to the Court for a consolatory gift (Matta ‘a). 2. The Court may, after hearing the parties, order payment of such sum or property as may be just and in accordance with Muslim law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2986/eng@2026-03-09 6

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34. The Quran in (2:241) directs that divorced women be given something (Matta’a) on a reasonable scale. Further Chapter 33 verse 28 of the Quran states as follows: O Prophet (Mohamed) say to your wives: if you desire the life of this world, and its glitter, then come I will make a provision for you and set you free in a handsome manner (Divorce)” Imama Altabari stated that the verse implied an order to prophet Muhammad (Peace be Upon Him ) to provide a gift to his wives in the case of separation through divorce. 35. The Quran (2.236) gives direction on the sum of Matta’a payable. It states that There is no blame if you divorce women before the marriage is consummated or dowry is settled. But give them a “suitable” compensation, the rich according to his means and the poor according to his. A reasonable compensation is an obligation on the good-doers. 36. In ZAG -vs- VOM (Divorce Cause E087 of 2022) a decision referred to by the Appellant, Matta ‘a is an obligatory consolatory gift under Islamic Law, payable by a husband to a wife upon divorce to mitigate the hardship of the separation. It is not fixed by statute but is determined by two factors: the husband’s financial ability and the circumstances of the divorce. In the present case, the trial Court awarded Kshs. 300,000/=. The Appellant’s undisputed net salary is Kshs. 61,000/=. An award of Kshs. 300,000/= represents nearly five times the Appellant’s entire monthly net income. With utmost respect, the trial Court failed to demonstrate a clear nexus between the Appellant’s documented income and the lumpsum award. Having carefully reviewed the record, there is evidence that the Appellant supports both the minor at hand and other of his children. There are various receipts evidencing monies sent to the Respondent and fee payment to [Particulars Withheld] Academy and to [Particulars Withheld] Boys High School. 37. While the Respondent alleged the Appellant has side businesses, no evidence was led to prove the income from the ventures. A Court cannot base a financial award on mere suspicion of wealth. Given the Appellant’s net pay and his other responsibilities, including the maintenance of the minor and his siblings, this Court finds that the award of Kshs. 300,000/= was indeed excessive and did not reflect the means of the Appellant as required by law. A reviewed sum of Kshs. 100,000/=, as proposed by the Learned Kadhis, and which this Court so agrees with, will suffice as adequate compensation. (c) Whether the maintenance award of Kshs. 25,000/= per month and the failure to apply shared parental responsibility was an error: 38. The Appellant contended that the monthly maintenance of Kshs. 25,000/= is punitive given his net salary of Kshs. 61,000/=. He further argued that the trial Court ignored the principle of shared responsibility under Article 53(1)(e) of the Constitution. The said provision states as follows; 53. (1) Every child has the right (e) 39. to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not; The law on child maintenance is governed by the best interests of the child principle. However, maintenance derives from the parents’ ability to pay. Section 95(1)(2)(f) of the Children Act lays down the general principles with regard to proceedings in Children’s Court. It requires the Court to consider the financial ability of each parent. It provides as follows; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2986/eng@2026-03-09 7

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(1) Subject to subsection (4), where the Court is considering whether or not to make an order under this Act with respect to a child, the Court shall not make any order unless it considers that doing so is in the best interest of the child. (2) Where the Court is considering whether or not to make an order under subsection (1), it shall have particular regard to(f) 40. the ability of the parent, or any other person in relation to whom the Court considers the question to be relevant, to provide for and care for the child; Section 110 of the Children Act further provides thus; 110. Joint maintenance of children Unless the Court otherwise directs, and subject to any financial contribution ordered by the Court to be made by any other person, the following presumptions shall apply with regard to the maintenance of a child— (a) 41. it shall be the joint duty and responsibility of both parents to maintain the child whether or not the parents are married to each other; However, the Quran places the responsibility of child maintenance solely on the father and in accordance to the father’s means as follows: And he, to whom the child was born, shall provide their provision and clothing equitably. No self is assigned except what is within its capacity. 2:233 (also 65:6-7) 42. On the foregoing background that the Islamic Law bestows financial responsibility solely upon the father of the child, this Court’s attention is drawn to Article 24(4) of the Constitution which allows limited derogation of the right to equality. It provides as follows; 24. Limitation of rights and fundamental freedoms. (4) The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance. 43. While this Court is cognizant of the above provision, it must be pointed out that such responsibility, in all its manifestations, ought to yield an outcome that is in tandem with non-discrimination under Article 27 of the Constitution and satisfies the edict of equal parental responsibility under Article 53. It must result in a rational explication of the Constitution. 44. The Supreme Court in Petition No. E035 of 2023, Fatuma Athman Abud Faraj -vs- Ruth Faith Mwawasi & 2 Others interpretated Article 24(4) as follows: (44) Of significance to this appeal is the interpretation of the phrase “qualified to the extent strictly necessary” as specifically spelt out in Article 24(4) of the Constitution. This phrase signals that any derogation from the general right to equality under the Bill of Rights is narrowly tailored and circumscribed. In interpreting the meaning and legal effect of Article 24(4) of the Constitution, Prof. Christina Murray offers an important analytical lens in her 2013 journal https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2986/eng@2026-03-09 8

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article ‘Kenya’s 2010 Constitution’ published in Neue Folge Band Jahrbuch des öffentlichen Rechts at pp. 761–762. In that article, she suggests that: [Article 24(4)] insistence that qualifications be ‘strictly necessary’ might be read to permit no greater invasion of the right to equality than is in any event permitted by [article 24 (1)] which allows reasonable limitations that are proportionate to their goals. 45. Guided by the foregoing, the Learned Judges of the Apex Court observed thus; … In other words, Article 24(4) is not a carte blanche for overriding the right to equality and freedom from discrimination; rather, it remains subject to the same proportionality test embodied in Article 24(1). The effect therefore is to anchor any permissible departure within a framework of reasonableness, justification, necessity, and proportionality, thus ensuring that the principle of equality remains the default constitutional position even when Islamic legal norms are accommodated. 46. Therefore, maintenance of a child under Islamic Law ought to be given a narrow and checked interpretation that should conform and are within permissible range of the core values of the Constitution. In the premise, a purposive interpretation of Articles 24(4), 27 and 53(1)(e) of the Constitution as appreciated alongside section 95(1)(2)(f) and 110 of the Children Act, call upon a Court to strike a balance and make maintenance provision that takes into account the totality of the circumstances of the parents of a minor so as not to discriminate against one parent. 47. It is worth highlighting that the Supreme Court in the case of Fatuma Athman Abud Faraj -vs- Ruth Faith Mwawasi & 2 Others (supra)), spoke to the above position the following manner; …returning to Article 24(4) of the Constitution, we can only come to the inevitable conclusion that the term “extent strictly necessary” introduces the principle of proportionality as the threshold for assessing whether any derogation is necessary or justified. In essence, any departure from the right to equality must be narrowly tailored and justified by compelling circumstances. Derogations under Article 24(4) must also be confined within the bounds of absolute necessity and within the confines of the parties who profess the Muslim religion. Put differently, Article 24(4) must be read as allowing only narrowly tailored and strictly necessary departures from the equality and freedom from discrimination provisions of the Bill of Rights. It does not authorize broad indiscriminate or automatic exclusions of Muslims from constitutional equality protections, but rather permits limited exceptions and under stringent conditions in any event. 49. For purposes of this case, therefore, an award of Kshs. 25,000/= constitutes approximately 41% of the Appellant’s net monthly income. While the needs of the minor, TAS, are paramount, a maintenance order must not be so high as to leave the paying parent in a state of destitution, especially where that parent has other legal obligations. In the premise, the trial Court, respectfully so, erred by failing to conduct a balanced assessment of the household needs versus the actual disposable income of the Appellant. A maintenance order must be realistic and sustainable to ensure the child receives the intended support. The order will, hence, be reviewed to Kshs. 15,000/= monthly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2986/eng@2026-03-09 9

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Disposition: 50. As I come to the end of this judgment, I wish to sincerely apologize for its late delivery for the reason that I have been heftily engaged before the Judicial Service Commission in conducting interviews since December 2025 to date. 51. I also wish to sincerely thank Hon. Mukhtar Billow Salat [Senior Principal Kadhi] and Hon. Hassan Omar Daffa [Principal Kadhi] for their invaluable opinions in this matter which have gone a long way to lighten the burden of this Court in this rendition. 52. Having said so and going by the above discussions and findings, this Court finds that the appeal has merit to the extent of interfering with assessment of both the Matta ‘a and the monthly maintenance. 53. Consequently, the following final Orders hereby issue: (a) The Appeal is hereby partially allowed. (b) The order for Matta ‘a of Kshs. 300,000/= is set aside and substituted with the sum of Kshs. 100,000/=. (c) The order for child maintenance of Kshs. 25,000/- is hereby varied such that the Appellant shall pay Kshs. 15,000/= per month towards the maintenance of the minor. (d) Given the nature of the matter, each party shall bear their own costs of the appeal. (e) The Hon. Deputy Registrar shall transmit copies of this judgment to the Hon. Kadhis who were part of this bench. Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF MARCH, 2026. A. C. MRIMA JUDGE Judgment virtually delivered in the presence of: Mr. Hassan, Learned Counsel for the Appellant. Miss Akinyi, Learned Counsel for the Respondent. Michael/Amina – Court Assistants. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2986/eng@2026-03-09 10

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