FHA v IIA

6. Article 170(5) of the Constitution and section 5 of the Kadhis' Courts Act limit the jurisdiction of this Court to questions of Muslim law relating to personal status, marriage, divorce or inheritance where all the parties profess Islam and submit to the jurisdiction of the Court. In Genevieve Bertrand v Mohamed Athman Maawiya & another [2014] KECA 687 (KLR), the Court of Appeal identied the three jurisdictional requirements as the subject matter of the dispute, the Muslim faith of the parties and their submission to the jurisdiction of the Kadhi's Court. 7. Those requirements are satised in the present matter. The dispute arises from an Islamic marriage and concerns divorce and consequential questions of personal status. Both parties profess Islam. As to submission, the Respondent had actual notice of the proceedings, communicated concerning the dispute, made payments pursuant to the interim maintenance directions and did not at any stage repudiate or object to the jurisdiction of this Court. His conduct, considered as a whole, demonstrates submission to the proceedings. 8. On the children-related questions, I am alive to the divergent High Court jurisprudence. In SO v MS (Civil Appeal E133 of 2023) [2024] KEHC 15195 (KLR), the High Court expressly held on appeal from an Isiolo Kadhi's Court that the Kadhi's Court had jurisdiction to determine custody and maintenance. A similar position was taken in the ruling in MAA v SIE (Civil Appeal E009 of 2024) [2024] KEHC 4894 (KLR) and in ZUDG v SJKUR [2020] eKLR. 9. I am equally mindful of the contrary conclusions reached in AMW v HAW (Civil Appeal E002 of 2023) [2025] KEHC 9006 (KLR) and OFB v KHM (Civil Appeal E016 of 2024) [2025] KEHC 16670 (KLR). 10. In the absence of a denitive Court of Appeal determination resolving those divergent High Court positions, I adopt the former line of authority. In my considered view, where custody and maintenance arise directly and incidentally from a Muslim matrimonial cause, they fall within the concept of personal status under Article 170(5), subject always to the Constitution and the Children Act. 11. Section 91(2) of the Children Act, 2022 does not independently enlarge the jurisdiction of this Court. It nevertheless expressly provides that where, under another written law, a matter involving a child is properly before another Court, that Court is deemed, for that matter, to be a Children's Court and is bound by the provisions of the Act. 12. The Kadhis' Courts (Procedure and Practice) Rules similarly recognise child-related relief within proceedings before this Court: Rule 113 concerns interim custody, Rule 114 interim maintenance, Rule 161 maintenance of minor children and Rule 162 review or variation of orders concerning the status or nancial provision of children. Those procedural provisions do not themselves create substantive jurisdiction, but they provide the procedural framework where such jurisdiction otherwise exists. 13. In determining the children-related issues, this Court is therefore bound by Article 53(2) of the Constitution and section 8 of the Children Act. The best interests of the children are the rst and paramount consideration. Sections 103 and 110 of the Act further require consideration of the children's welfare and recognise the joint responsibility of both parents for their maintenance. 14. Section 71 of the Marriage Act, 2014 provides that dissolution of a marriage celebrated under Islamic law is governed by Islamic law. 15. The Petitioner testied that the parties initially lived together as husband and wife, but their matrimonial relationship substantially deteriorated in 2025. The Respondent ceased ordinary https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/28/eng@2026-09-11 2

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matrimonial cohabitation, became inconsistent in discharging his family obligations and returned to the family only briey in January and July 2025. 16. She further testied that normal matrimonial life was never restored. Family members and elders attempted reconciliation, but those eorts were unsuccessful. 17. PW2, AHA, testied that he personally witnessed the marriage. He conrmed that the parties initially lived well but that their relationship subsequently deteriorated. He also corroborated the agreed mahr of KSh 100,000 and the outstanding balance of KSh 50,000. 18. PW3, SAA, a neighbour who had known the Petitioner for approximately ten years, conrmed that the parties substantially lived separately from 2025. She personally observed only brief returns by the Respondent during that year and conrmed that ordinary matrimonial cohabitation was not restored. 19. PW3 claried that she was not present during the nikah and did not personally participate in the reconciliation discussions. She further corrected the reference to "Miraj" in her written statement and conrmed that the correct name of the child is M(3). 20. In accordance with section 6 of the Kadhis' Courts Act, I have assessed the credibility and probative value of all the evidence and distinguished matters within the witnesses' direct knowledge from matters reported to them. 21. The minor dierences in the evidence concerning the precise duration of the Respondent's brief visits do not aect the central and consistent evidence that substantive matrimonial cohabitation ceased and was not restored. 22. Under Islamic law, prolonged separation, failure to discharge material marital obligations, absence of normal marital companionship and unsuccessful reconciliation may constitute sucient grounds for judicial dissolution. In HID v SAM (Civil Appeal E003 of 2025) [2026] KEHC 1942 (KLR), the High Court upheld dissolution where prolonged separation, lack of maintenance and deprivation of marital companionship had been established and reconciliation had failed. 23. On the totality of the evidence, I nd on a balance of probabilities that meaningful matrimonial cohabitation ceased, the Respondent's performance of his marital obligations became materially inconsistent and reconciliation failed. The Petitioner has therefore established sucient grounds under Islamic law for judicial dissolution by faskh/tafriq. 24. On mahr, the Petitioner consistently testied that KSh 100,000 was agreed, KSh 50,000 was paid and KSh 50,000 remains outstanding. PW2 corroborated that evidence. There is no evidence of subsequent payment or waiver. The outstanding KSh 50,000 is therefore proved. 25. The parties have three children. Their certicates of birth establish their ocial particulars as follows: M(1), born on 12th September 2019; M(2), born on 17th June 2021; and M(3), born on 19th July 2025. 26. Those ocial particulars prevail over inconsistent ages or dates appearing elsewhere in the witness material. 27. The children have been living with the Petitioner. There is no evidence that she is unt to continue their day-to-day care. Their ages, existing living arrangements, continuity of care and need for stability favour actual custody, care and control remaining with her. https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/28/eng@2026-09-11 3

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28. The Respondent remains their father and retains parental responsibility. Dissolution of the marriage does not extinguish his obligations towards the children or their right, subject to their welfare and best interests, to maintain an appropriate relationship with him. 29. The Petition sought KSh 42,000 per month in maintenance. During her oral evidence, the Petitioner ultimately sought approximately KSh 30,000 monthly, with school fees separately payable. The Respondent's precise net income was not proved by documentary evidence. 30. The evidence nevertheless establishes that the Respondent is employed in Public Health and has made maintenance payments of varying amounts. The M-Pesa evidence further demonstrates his capacity to make substantial payments, including payments made following the interim maintenance order. 31. The Court had previously ordered KSh 20,000 per month. Having considered the demonstrated needs of the children, the Respondent's employment and payment history, the Petitioner's daily and nonmonetary contribution to their care, the absence of reliable evidence of the Respondent's precise net income and the need to avoid duplication of school expenses, I nd KSh 20,000 per month, exclusive of school fees and medical cover, fair and presently sustainable. 32. Although Rule 161(3) provides that an application for maintenance of a minor child shall be by Notice of Motion, maintenance was expressly pleaded in the Petition, served upon the Respondent, formed the subject of an interim order and was fully canvassed in sworn evidence. Rule 6 provides that noncompliance with the Rules does not render proceedings void unless the Court so orders. No prejudice has been occasioned to the Respondent, who had notice of the maintenance claim throughout these proceedings. 33. Sections 110, 111 and 112 of the Children Act recognise the joint duty of parents to maintain their children, empower the Court to make maintenance orders and expressly contemplate maintenance during matrimonial proceedings. Section 118 further permits directions concerning education, medical care, housing and clothing. 34. The school-fee evidence did not establish with sucient precision one xed gure applicable to all three children. It is therefore more accurate and enforceable to require payment according to the ocial fee structures and invoices issued by their respective educational institutions. 35. The evidence further establishes that the children presently benet from medical insurance available through the Respondent's employment. Continuation of that cover is in their best interests. 36. The Petition also pleaded that substantial family rent arrears accumulated after the Respondent ceased meeting the housing obligation. The Petitioner testied that relatives had to assist her to settle that liability, and PW2 materially corroborated the existence of the rent default and the intervention by relatives. 37. I accept, on a balance of probabilities, the central factual evidence that the Respondent failed for a material period to meet the family's rent obligation and that the Petitioner consequently depended upon relatives to preserve accommodation for herself and the children. That evidence materially supports the nding that the Respondent failed to discharge important marital and family obligations. 38. The Petition did not, however, contain a distinct substantive prayer seeking an executable monetary decree for reimbursement of the historical rent payments. I therefore make no separate monetary award in respect of those historical payments. 39. The Petitioner further conrmed that the household items referred to in the Petition are presently in her possession. No further order is required concerning those items. https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/28/eng@2026-09-11 4

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40. I accordingly nd that the Petitioner has established entitlement to dissolution, the outstanding mahr and appropriate custody, maintenance, educational and medical provision for the children. Final Orders 1. The Islamic marriage between FHA and IIA, solemnised at Isiolo on 15th December 2018, is hereby dissolved by judicial decree (faskh/tafriq) with eect from 11th September 2026. 2. The Petitioner shall observe the prescribed 'iddah in accordance with Islamic law. 3. The Respondent shall pay the Petitioner KSh 50,000, being the outstanding balance of her mahr, within sixty (60) days from the date of this Judgment. 4. Actual custody, care and control of M(1), M(2) and M(3) shall remain with the Petitioner. 5. Both parents shall continue to exercise their respective parental responsibilities towards the children in accordance with law. 6. The Respondent shall have reasonable access to the children upon reasonable prior notice and at mutually convenient times, including reasonable telephone or video communication, subject at all times to their schooling, age, health, welfare and best interests. In default of agreement, either party may apply to the Court for appropriate directions. 7. The Respondent shall pay KSh 20,000 per month towards the children's food, accommodation, clothing and ordinary upkeep. 8. The nal maintenance order shall take eect from 11th September 2026. Any payment already made for September 2026 under the interim maintenance order shall be credited against the September obligation. Any balance shall be paid within seven (7) days from the date of this Judgment. Thereafter, the monthly maintenance shall be paid on or before the 5th day of every succeeding month. 9. Any maintenance or school-fee obligation lawfully accrued under the interim orders before 11th September 2026 and remaining unpaid shall remain due and recoverable. 10. The Respondent shall pay the children's school fees and compulsory educational charges directly to their respective schools or educational institutions as and when they fall due, in accordance with the ocial fee structures or invoices, and shall retain proof of payment. 11. The Respondent shall maintain the children on his existing medical insurance cover for so long as such cover remains available through his employment. 12. Necessary medical expenses not covered by the medical insurance shall be shared equally by the parents, upon production of the relevant invoice or receipt. 13. The Court records its nding that the Respondent failed for a material period to meet the family's historical rent obligation, necessitating nancial assistance from the Petitioner's relatives. No separate monetary decree for reimbursement of historical rent is entered in this cause for the reasons stated above. 14. No further order is made concerning the household items. 15. The interim maintenance and school-fee orders are hereby superseded prospectively by these nal orders, without extinguishing any obligation already accrued under them. https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/28/eng@2026-09-11 5

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16. Either party shall have liberty to apply for review or variation of the children-related orders upon a material change of circumstances, in accordance with the applicable law and Rule 162 of the Kadhis' Courts (Procedure and Practice) Rules, 2020. 17. Each party shall bear his or her own costs. 18. A Divorce Order shall issue and shall serve as the Divorce Certicate. It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO THIS 11TH DAY OF SEPTEMBER 2026. HON. A. I. DADACHA PRINCIPAL KADHI https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/28/eng@2026-09-11 6

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