Anm v Mkm

4. The origin of the legal complexity in this matter predates the union of the Appellant and the Respondent. The record evinces that the Respondent was previously married to one IAS. That Islamic marriage was contracted on August 8, 2013. The union was reportedly marred by interference from extended family and severe medical issues suffered by the Respondent, necessitating abdominal surgery in Mombasa. By her own admission and the pleadings in Nairobi Kadhi's Court Misc. Case No. 5 of 2016, the Respondent physically separated from IS on December 13, 2015, and retreated to Nairobi. 5. Subsequently, the Respondent filed for divorce. The proceedings culminated on February 4, 2016, before Hon. R. A. Omar, Kadhi. Because IS failed to pursue court-mandated reconciliation efforts, the Kadhi granted the Respondent her freedom by way of Faskh (judicial dissolution). Crucially, the Kadhi explicitly ordered that the mandatory Iddah (waiting period) would lapse on February 28, 2016. 6. In flagrant disregard of the judicially decreed Iddah period, the Respondent engaged in marriage ceremonies with the Appellant herein. On 6 February 2016, the Appellant and Respondent conducted their first Nikah ceremony at the Jamia Mosque Family Resource Centre, Nairobi, witnessed by the Respondent's brothers. On 27 February 2016, a second Nikah ceremony was conducted in Diani, Mombasa, at the insistence of the Respondent's family. 7. Both of these ceremonies occurred before the February 28, 2016 expiration of the Respondent's Iddah. The Appellant avers that the Respondent fraudulently concealed her ongoing Iddah status from him, a material fact that forms the bedrock of his appeal. 8. At the time of these ceremonies, it was agreed that the Mahr would be Kshs. 160,000/=, designated to finance the Respondent's formal education in Early Childhood Development. To date, Kshs. 100,000/ = of this Mahr remains outstanding. 9. The marriage experienced extreme volatility almost immediately. Merely five months into the union, on July 4, 2016, the Appellant issued a written Talaq, directing the Respondent to observe a threemonth Eddat and vacate his premises, taking only what he had gifted her. Despite this initial fracture, the parties reconciled and continued to cohabit for several years. 10. During this extended cohabitation, the union was blessed with a child, born on December 16, 2020. The medical records from Gertrude's Children's Hospital and M.P. Shah Hospital indicate that the minor child suffers from respiratory challenges requiring specialized care, frequent nebulization, and a dust-free environment. 11. The parties also engaged in extensive joint economic enterprises. The Respondent's pleadings demonstrate her active role in marketing and administering several properties acquired during their cohabitation. These properties form part of the matrimonial dispute. 12. The relationship definitively collapsed in mid-2024. The Respondent alleges chronic cruelty, stating that the Appellant prioritized his first wife, subjected her to physical and psychological abuse, and ultimately locked her out of the family business. She claims that she suffered physical injuries, including a severe injury to her left arm and beatings following her mother's burial. 13. Conversely, the Appellant paints the Respondent as an insatiable, violent, and chronically abusive partner. He alleges that she routinely locked him out of the matrimonial home at [Particulars Withheld] Apartments in Westlands, hurled objects at him, and caused disruptive scenes at his workplace. 14. On June 2, 2024, the parties attended a mediation session. The Respondent refused to sign a predrafted agreement, prompting the Appellant to immediately issue a second Talaq. The conflict culminated in a violent physical altercation at the matrimonial home on September 14, 2024. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6464/eng@2026-05-14 2

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Appellant, accompanied by Sheikh Abdul Aziz Kasani, attempted to retrieve his personal belongings. According to the police reports, P3 forms, and medical records from Aga Khan University Hospital, the altercation involved the brandishing of a knife, the use of a chapati roller, torn clothing, and significant injuries resulting in the Appellant requiring arthroscopic rotator cuff repair surgery on his left shoulder. 15. Following the second Talaq, the Respondent filed a Petition and Application dated August 16, 2024, at the Nairobi Kadhi's Court (KCDC E227 of 2024). She sought the official dissolution of the marriage, a divorce certificate, payment of the outstanding Kshs 100,000/= Mahr, Eddat maintenance of Kshs 50,000/= per month, child maintenance of Kshs 92,500/= per month, an injunction against eviction, and the determination of shares in the aforementioned matrimonial properties. 16. The Appellant fiercely opposed the Petition. He filed an Amended Application dated September 24, 2024, and a Notice of Preliminary Objection dated January 13, 2025. He argued that the entire proceeding was a non-starter because the marriage was contracted during the Respondent's Iddah period, rendering it null and void ab initio for constituting polyandry/bigamy. Consequently, he argued that the Kadhi's Court lacked jurisdiction over the child custody and maintenance aspects, demanding these be severed and referred to the statutory Children's Court. 17. The trial Court delivered its Ruling, dismissing the Appellant's Preliminary Objection and Amended Application. The Kadhi found that the issuance of the two Talaqs by the Appellant constituted an irrefutable legal acknowledgment of a valid marriage. Furthermore, the Kadhi asserted the court's inherent jurisdiction to hear and determine the child custody and maintenance disputes as integral components of personal status under Islamic law, regardless of the Appellant's purported refusal to submit to that specific jurisdiction. 18. Aggrieved by these findings, the Appellant lodged the instant appeal on the following grounds: i. That the Honourable Kadhi erred in law and fact in failing to address himself on the salient features of a valid Islamic Marriage hence occasioning a miscarriage of justice; ii. That the Honourable Kadhi misapprehended the evidence on record thereby reaching an erroneous conclusion; iii. That the Honourable Kadhi erred in law and fact in finding that the there was a proper and valid marriage between the Appellant and the Respondent; iv. That the Honourable Kadhi erred in law in finding that the Kadhi’s Court has jurisdiction to hear and determine matters concerning child custody and maintenance; v. That the Honourable Kadhi erred in law and fact by disregarding the fact that the Appellant had exercised his constitutional right not to submit to the court on matters concerning child custody and/or maintenance; vi. That the Ruling was against the weight of the evidence adduced and the cited case laws. The Preliminary Objection 19. Before analysing the substantive grounds of appeal, this court must definitively dispose of the Preliminary Objection raised by the Respondent regarding the procedural competence of the appeal itself. 20. The Respondent vehemently submits that the appeal is fatally defective and legally incompetent. Her primary contention rests on a chronological impossibility: the Appellant's Memorandum of Appeal is https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6464/eng@2026-05-14 3

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dated April 4, 2025, and filed on April 10, 2025, yet it explicitly purports to challenge a Ruling that was not delivered by the Kadhi until May 21, 2025 (with other pleadings referencing March 13, 2025). The Respondent argues that an appellate document prepared and filed more than a month prior to the impugned decision cannot, as a matter of law, accurately contemplate or appeal against orders that did not yet exist. She asserts that the Appellant could not have been aggrieved by a non-existent ruling. 21. Furthermore, the Respondent asserts that the Appellant failed to seek or obtain the requisite leave of the court to amend the Memorandum of Appeal under Order 42, Rule 3 of the Civil Procedure Rules. She argues that the appeal is also spent because the High Court had already granted a stay of proceedings on June 11, 2025. 22. A Preliminary Objection, as classically defined by the Court of Appeal for Eastern Africa in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd (1969) EA 696, must raise a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point will dispose of the suit. 23. The Respondent’s objection correctly identifies severe drafting anomalies. The rules of procedure governing appeals, specifically Order 42 of the Civil Procedure Rules, require a Memorandum of Appeal to concisely set forth the grounds of objection to the decree or order appealed against. Filing an appeal before a Ruling is delivered technically offends the chronological logic of appellate jurisdiction, which is triggered by aggrievement following a judicial determination. The Court of Appeal in Muchanga Investments Limited v. Safaris Unlimited (Africa) Ltd & 2 Others, Civil Appeal No. 25 of 2002 eKLR, held that the employment of judicial process is regarded as an abuse when a party uses it in a manner wanting in bona fides, frivolous, vexatious, or oppressive. 24. However, the jurisprudential philosophy of our courts has significantly evolved following the promulgation of the Constitution of Kenya, 2010. Article 159(2)(d) strictly mandates that judicial authority shall be exercised without undue regard to procedural technicalities. The courts are commanded to facilitate the pursuit of substantive justice over the rigid enforcement of formalistic rules. In the recent case of Sichuan Huashi Enterprises Corp. Limited v. Michael Misiko Muhindi [2019] eKLR, the High Court clarified that substantive issues—even those as critical as the limitation of actions—should generally be determined as an issue at trial rather than through summary dismissal via a Preliminary Objection. 25. Furthermore, as established in Eastern Produce Kenya Ltd v. Rongai Workshop & Transporters Ltd & Another eKLR, courts exercise their discretion to prevent a party from being deprived of the right to access the court due to procedural delays or errors, recognizing that the fundamental obligation of a court of law is to do substantive justice. 26. The misdating of the Memorandum of Appeal, while representing gross professional negligence on the part of the Appellant's counsel is a curable defect. The record unequivocally demonstrates that a Ruling was delivered, that the Appellant was aggrieved by the substantive findings regarding jurisdiction and marriage validity, and that the parties have fully briefed and submitted on these substantive issues. Dismissing this appeal on a drafting technicality would leave the fundamental questions regarding the constitutional rights of the minor child, the jurisdiction of the Kadhi's Court, and the application of Islamic personal law entirely unresolved. This would be a profound abdication of judicial duty. 27. Therefore, invoking the overriding objective of the Civil Procedure Act and the constitutional edict of Article 159(2)(d), the Respondent's Preliminary Objection is hereby overruled. The Court shall proceed to determine the appeal on its substantive merits. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6464/eng@2026-05-14 4

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The Jurisdiction of the Kadhi's Court over Child Custody and Maintenance 28. The first substantive ground of appeal challenges the jurisdiction of the Kadhi's Court. The Appellant argues that the Kadhi erred in law by assuming jurisdiction over matters of child custody and maintenance. He contends that such matters are the exclusive preserve of the statutory Children's Court established under the Children Act. Furthermore, the Appellant relies on the strict wording of the Constitution, arguing that because he explicitly withheld his submission to the Kadhi's Court on the isolated issue of the child, the court was stripped of its authority to proceed. 29. The jurisdiction of the Kadhi's Courts is exhaustively delineated by the Constitution. As the Supreme Court articulated in Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others [2012] eKLR, a court’s jurisdiction flows from either the Constitution or legislation, and a court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. Similarly, the renowned holding of Nyarangi, JA in Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd KLR 1 emphasizes that jurisdiction is everything; without it, a court has no power to make one more step. 30. Article 170(5) of the Constitution states: 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. 31. This exact phrasing is reproduced in Section 5 of the Kadhi's Courts Act. The jurisdiction rests on three mandatory pillars: a. Subject Matter: The dispute must relate to personal status, marriage, divorce, or inheritance. b. Faith: All parties must profess the Muslim religion. c. Consent: All parties must submit to the jurisdiction of the court. 32. The Appellant's argument hinges on a restrictive, literalist reading of Article 170(5), noting that child custody and child maintenance are not expressly listed. This interpretation fails to appreciate the holistic nature of Islamic jurisprudence. 33. In classical Islamic law, matters of child custody (Hadanah) and child maintenance (Nafaqah) do not exist in a vacuum; they are fundamental, inextricable components of personal status (Al-Ahwal AlShakhsiyyah). The constitutional usage of the term "personal status" operates as an umbrella category that inherently captures the rights and obligations flowing from the family unit. 34. Recent and progressive jurisprudence has completely settled this debate, overturning older, restrictive interpretations. In FAA v ADA (Divorce Cause E051 of 2023) KEKC 9 (KLR), the Kadhi’s court comprehensively analysed this exact question. Relying on comparative Islamic legal frameworks (such as the UAE Federal Law No. 28 of 2005 and Malaysia's Islamic Law Act), the court held that there is absolute consensus among Muslim jurists that issues of child custody and maintenance form an integral part of personal status. 35. Furthermore, in FM v DT (Divorce Cause E004 of 2025) KEKC 21 (KLR), the Kadhi's Court decisively dismissed a preliminary objection identical to the one raised by the Appellant. The court ruled that custody and maintenance are ancillary matters inseparable from a divorce cause. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6464/eng@2026-05-14 5

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enactment of the Children Act (No. 29 of 2022) does not oust the constitutional jurisdiction of the Kadhi's Court to adjudicate these matters for Muslims. 36. Whereas the two decisions are from a subordinate court, I couldn’t agree more with the reasoning therein. To force Muslim litigants to bifurcate their family disputes—seeking divorce before a Kadhi while simultaneously prosecuting child maintenance in a Magistrate's Children's Court—would multiply costs, delay justice, and utterly defeat the constitutional objective of providing a unified, specialized forum for Islamic family law. The Kadhi's Court exercises concurrent jurisdiction with the Children's Court, guided by both Shari'ah principles and the statutory best interests of the child standard. 37. The Appellant's secondary argument is that he explicitly exercised his constitutional right not to submit to the Kadhi's Court regarding the child. This represents a profound misunderstanding of procedural law. 38. Submission to jurisdiction is not a divisible menu from which a litigant can selectively choose. As the Respondent correctly argued, the Appellant participated fully in the proceedings. He filed Replying Affidavits, a Supplementary Affidavit, an Amended Application, and a Preliminary Objection. Most importantly, he actively relied on his issuance of two Talaqs to assert his legal positions. 39. Once a party submits to the jurisdiction of the Kadhi's Court to adjudicate the primary dispute, that submission automatically and irrevocably encompasses all ancillary and incidental matters arising directly from that marriage. An appellant cannot engage in internal forum-shopping, accepting the Kadhi's authority to validate his Talaq while rejecting its authority to enforce the consequential maintenance obligations triggered by that very Talaq. 40. Consequently, I find that the trial court did not err in law. The Kadhi's Court possessed the absolute constitutional and statutory jurisdiction to hear and determine the issues of child custody and maintenance. Ground 1 of the appeal is dismissed. The Validity of the Marriage Contracted During Iddah 41. The most jurisprudentially complex issue in this appeal concerns the legal status of the Nikah contracted between the Appellant and the Respondent in February 2016. 42. The timeline is undisputed. The Respondent was judicially divorced from IS on February 4, 2016, with her Iddah period mandated to end on February 28, 2016. The Appellant and Respondent underwent marriage ceremonies on February 6 and February 27, 2016—squarely within the Iddah period. 43. The Appellant seeks to classify this union as absolutely void from its inception. He argues that the Respondent lacked the legal capacity to contract marriage, equating her actions to the felony of bigamy under section 171 of the Penal Code. Relying on the Court of Appeal decision in Kenya Airways Limited v. Satwant Singh Flora eKLR, the Appellant argues that no Court ought to enforce an illegal contract and that a contract tainted with illegality from inception yields no rights capable of protection. 44. The Appellant's reliance on common law principles of illegal contracts is fundamentally misplaced in a dispute governed by Islamic personal law pursuant to Article 24(4) of the Constitution. To resolve this, this Court must apply classical Islamic jurisprudence. 45. Iddah is a strict Quranic injunction. Surah Al-Baqarah (2:228) commands: “ Divorced women remain in waiting for three periods, and it is not lawful for them to conceal what Allah has created in their wombs if they believe in Allah and the Last Day". https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6464/eng@2026-05-14 6

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46. The primary objectives of Iddah are to ascertain the paternity of a child, provide an opportunity for reconciliation, and honour the sanctity of the marital bond. Under Islamic law, making an explicit proposal of marriage, let alone contracting a marriage, with a woman currently observing Iddah is strictly forbidden. 47. Islamic family law does not treat all defective marriages equally. It meticulously distinguishes between valid (Sahih), void (Batil), and irregular (Fasid) marriages. The Appellant's argument collapses due to his failure to comprehend the distinction between Batil and Fasid. 48. A voidable marriage (batil) is one that violates a permanent, absolute impediment. The defect relates to the fundamental pillars of the contract. Examples are marriages within prohibited degrees of blood (consanguinity), affinity or fosterage and marriages to polytheists. The legal consequence would be that such a marriage is void ab initio. It creates no legal rights and no entitlement to maintenance. Children are historically deemed illegitimate (walad-ul-zina). 49. On the other hand, an irregular marriage (fasid) is one that violates a temporary or relative impediment that can be removed or rectified. The defect relates to an external condition, not a fundamental pillar. Examples of these would be marriages conducted without the required number of witnesses, marriage to a fifth wife or marriage to a woman undergoing Iddah. Such a marriage has no legal consequences before consummation. However, after consummation, it creates binding legal obligations. 50. The distinction between Batil and Fasid is of paramount importance because of the legal consequences that flow upon the consummation of the union. While a Fasid marriage has no legal effect before consummation, once the parties cohabit and consummate the union, specific, enforceable legal rights and obligations crystallize. 51. According to established Islamic jurisprudence, upon the consummation of a Fasid marriage, the wife becomes absolutely entitled to her specified dower. Upon separation or divorce, the wife is legally obligated to observe a new Iddah period, triggering the husband's corresponding duty of Eddat maintenance. Most critically, the children conceived and born during the subsistence of a Fasid marriage are entirely legitimate. They establish strict paternal lineage (Nasab) to the father, triggering his absolute, inescapable duty of child maintenance (Nafaqah). 52. In the present case, it is undisputed that the Appellant and the Respondent cohabited for over eight years. They consummated the union, engaged in joint economic enterprises, and produced a child. Furthermore, the Appellant issued two Talaqs in 2016 and 2024. The very act of pronouncing a Talaq operates as an irrefutable legal acknowledgment by the Appellant that a marital bond existed. One cannot divorce a woman to whom one has no legal tie. 53. The Appellant’s attempt to brand the marriage as bigamous under the Penal Code to escape civil and financial liabilities is a gross misapplication of the law. Guided by Article 24(4) of the Constitution, the applicable law is Islamic personal law. Under that law, the union is classified as a Fasid marriage which, through extensive consummation and cohabitation, activated the Appellant's inescapable financial obligations regarding dower, Eddat maintenance, and child maintenance. The Kadhi did not err in recognizing the legal effects of this union. The Constitutional Rights of the Minor Child 54. The true motivation behind the Appellant’s strenuous attempt to declare the marriage Batil was an attempt to legally sever his ties to the minor child. Under strict, classical interpretations of Islamic law, a child born of a Batil marriage or illicit intercourse has no legal lineage to the biological father and cannot claim maintenance or inheritance from him. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6464/eng@2026-05-14 7

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55. However, even if this Court had erred and concluded that the marriage was Batil, the Appellant's attempt to escape parental responsibility would still fail spectacularly when subjected to the supreme test of the Constitution. 56. The promulgation of the Constitution in 2010 fundamentally transformed the landscape of family law and children's rights. Article 53 elevated the rights of the child to a paramount constitutional imperative. 57. Article 53(1)(e) guarantees every child the right to parental care and protection, explicitly stating that this includes the equal responsibility of the mother and father to provide for the child, whether they are married to each other or not. Furthermore, Article 53(2) dictates that a child's best interests are of paramount importance in every matter concerning the child. 58. For decades, a severe tension existed in Kenya between strict Islamic personal law—which traditionally denied maintenance and inheritance rights to children born out of wedlock—and the egalitarian protections of the Constitution. Traditionalists argued that Article 24(4) of the Constitution, which qualifies the right to equality to allow the application of Muslim law in personal status matters, protected these exclusionary practices. This conflict has now been definitively resolved. 59. In a monumental, paradigm-shifting judgment delivered in 2025, the Supreme Court in Fatuma Athman Abud Faraj v. Ruth Faith Mwawasi & 2 Others (Petition No. E035 of 2023) KESC 48 (KLR) decisively tackled the intersection of Islamic personal law, children born out of wedlock, and constitutional rights. The Supreme Court was asked to determine whether children born to a Muslim father out of wedlock could be excluded from inheriting from his estate, a practice historically sanctioned by Islamic law. Both the High Court and the Court of Appeal had previously ruled that Islamic law lawfully excluded such children. 60. The Supreme Court overturned these lower court decisions, issuing a profound ruling that forever alters family law in Kenya. The apex Court held that while Article 24(4) permits the application of personal and religious laws, those laws cannot be utilized to justify discrimination against children based on their birth status. The Court affirmed that constitutional provisions, particularly the right to equality (Article 27) and the best interests of the child (Article 53), override religious laws where fundamental human rights are threatened. The Supreme Court eloquently held: “ Denying children born out of wedlock the same benefits as those born within marriage, based on the alleged 'sins' of their parents, is unreasonable and unjustifiable". 61. Applying this binding, apex precedent to the present appeal renders the Appellant's arguments entirely obsolete. Whether the marriage between the Appellant and the Respondent was Sahih (valid), Fasid (irregular), or Batil (void), the Appellant’s biological paternity of the minor child is an undisputed fact. Consequently, the Appellant bears an absolute, inescapable, and equal constitutional responsibility to maintain, care for, and protect the minor child. He cannot use the irregular timing of a Nikah ceremony to evade the supreme law of the land. 62. Accordingly, I make the following final orders: i. The Respondent’s Preliminary Objection regarding the procedural competence of the appeal is overruled. ii. This appeal is found to be entirely devoid of merit and is hereby dismissed in its entirety. iii. The costs of this appeal shall be borne by the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6464/eng@2026-05-14 8

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iv. Leave to appeal is granted. DATED AND DELIVERED AT NAIROBI THIS 14 DAY OF MAY 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: Court Assistant: Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6464/eng@2026-05-14 9

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