Tsj v Shsr
The bottom line
#Kenya's Court of Appeal confirmed that religious arbitration boards can decide divorce, custody and maintenance disputes if both parties agreed to submit to them.
What this practically means
#Executive summary
#Key legal issues
#Scope of the Arbitration Act – arbitrability of personal law disputes
Nothing in the Arbitration Act limits arbitration to commercial disputes; personal law disputes, including matrimonial matters, are arbitrable under the Act.
The Act's origins lie in the UNCITRAL Model Law on International Commercial Arbitration, and parliamentary speeches confirmed a commercial orientation. However, the Act itself contains no limitation of arbitrable disputes to commercial matters. The Constitution of 2010, particularly Article 159(2)(c), promotes alternative dispute resolution, and Article 189 recognises arbitration in intergovernmental disputes. Section 72 of the Marriage Act also recognises dissolution of Islamic marriages outside the courts. Personal law arbitration is therefore neither unlawful nor against public policy.
Whether Nurani vs. Nurani remains good law and bound the High Court
Nurani vs. Nurani, upholding jurisdiction of the Ismailia Council over personal law disputes of consenting members, remains the state of the law and should have been followed by the High Court.
The facts of Nurani strikingly resemble the present case. This Court there held the Council had jurisdiction because Ismailis submit to it in respect of their personal law, and rejected exclusive High Court jurisdiction over children's matters. The Judge gave the precedent a wide berth despite counsel citing it. Although decided before the 2010 Constitution, that Constitution gives arbitration an even stronger place, so Nurani represents the current state of the law and binds the court below.
Whether the Arbitration Board exceeded its jurisdiction
The Board acted within its mandate under Article 13 of the Ismaili constitution; the husband who initiated proceedings before it could not later claim want of jurisdiction, and the Board did not exceed its jurisdiction.
The Arbitration Board is established under the Shia Imami Ismaili constitution which members are ordained to obey, and its constitutive instrument empowers it to hear and adjudicate domestic and family matters including matrimony, children, matrimonial property and succession. The parties submitted to its authority through their religious edict, and it was the husband himself who commenced the divorce proceedings before the Board. Arbitration rests on party autonomy; the Judge erred in finding the Board exceeded its mandate.
Exclusivity of Children's Court jurisdiction over custody and maintenance
Section 73 of the Children Act does not make the Children's Court jurisdiction exclusive; custody and maintenance may be arbitrated where parties agree to submit to such a body.
Section 73 establishes Children's Courts but contains no stipulation of exclusivity, and Part VII of the Act allows “a court” to make custody, care and maintenance orders without an exclusivity clause. The Judge himself correctly acknowledged that nothing precludes a body such as the Board from arbitrating custody and maintenance disputes where both parties submit to its authority by agreement – which is precisely what occurred here.
Legal principles established
#- The Arbitration Act does not limit arbitrable disputes to commercial matters; personal law disputes may be resolved by arbitration under the Act where parties submit to it.
- The Children's Court jurisdiction over custody and maintenance is not exclusive; bodies such as an Arbitration Board may arbitrate such disputes where parties submit to its authority by agreement.
- A religious or community tribunal set up by consent to administer personal law is entitled to recognition, subject to the supervisory jurisdiction of the High Court.
- A party who voluntarily submits to arbitration cannot later challenge the tribunal's jurisdiction after an unfavourable award.
Court orders
#- 1.Appeal allowed
- 2.Ruling of the High Court given on 5th June 2014 set aside
- 3.Substituted order allowing the appellant's application dated 18th February 2013 in terms of prayer 2, that the arbitral award dated 15th September 2012 be forthwith recognized and enforced as an arbitral award
- 4.Appellant to have costs of the appeal and of the proceedings before the High Court
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Appl. No. 8 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate framework (not expressly stated in the judgment); appeal from High Court ruling under Section 36 of the Arbitration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tsj v Shsr", Case Analysis (2019). Civil Appeal No. 119 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/170/eng@2019-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.