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KadhiPartially AllowedCivil Case No 57 of 2017· [2017] KEKC 10 (KLR)

ZDB v IT & another [2017] KEKC 10 (KLR)

Kadhis' Court at Kisumu
8 March 2017
707 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisumu Kadhis' Court dissolved a marriage by faskh after a husband abandoned his family and stopped providing maintenance for over a year and a half.

What this practically means

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Executive summary

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This was an ex parte civil cause before the Kadhis' Court at Kisumu in which the applicant ZDB sought two prayers: that the court compel her husband to change and return to the family, and that her father-in-law stay aside and stop disputing her marriage. The first respondent (the husband) failed to appear; the second respondent (the father-in-law) declined to comment on the marriage but agreed to pay the applicant Kshs 3,000, paying Kshs 1,000 with a balance of Kshs 2,000. The applicant testified that the marriage was cruel, abusive and violent, that her sick first child died without support from the husband's family, and that she had left the matrimonial home one year and seven months earlier with no reconciliation attempt. Two witnesses, Dokota and Boru, corroborated her claims. The court framed two issues: whether it could dissolve the marriage as prayed, and custody and maintenance of the child. Relying on Qur'an chapter 4 verse 129 against leaving a spouse hanging and the respondent's failure to maintain his family, the court dissolved the marriage by way of faskh. On custody, applying Qur'an chapter 2 verse 233, custody was left with the mother subject to maintenance. The court ordered an eddah period of three months, issuance of a divorce certificate, monthly maintenance of Kshs 3,000 from March 2017, and payment of the Kshs 2,000 balance by the second respondent within 30 days.

Key legal issues

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01

Whether the court could dissolve the marriage as per the petitioner's prayers

Holding

The marriage was dissolved by way of faskh because the applicant had been without communication with her husband and he had failed to provide maintenance for over one year and seven months

Reasoning

The court found the applicant had no communication with her husband and did not know whether she was still his wife, which is contrary to Qur'an chapter 4 verse 129 prohibiting leaving a spouse hanging. The respondent also failed to provide maintenance for over one year and seven months. In cross-examination the applicant confirmed she wanted the marriage broken rather than remain in her situation.

p. 1
02

Custody and maintenance of the child

Holding

Custody rests with the mother subject to the husband paying maintenance; the first respondent was ordered to pay Kshs 3,000/= monthly maintenance

Reasoning

Relying on Qur'an chapter 2 verse 233, the court held that custody of children is the mother's responsibility where the husband pays maintenance. The court noted the applicant was living with her child in bad condition without help from the husband's family, and ordered compulsory monthly maintenance of Kshs 3,000/= from March 2017.

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Legal principles established

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  • A spouse may not leave the other hanging, neither divorced nor married, contrary to Islamic Sharia
  • A husband who fails to maintain his family may have the marriage dissolved by faskh at the applicant's instance
  • Custody of children is the responsibility of the mother if the husband pays maintenance for the children

Court orders

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  1. 1.The marriage is dissolved as requested by the applicant in the way of Faskh
  2. 2.The applicant to observe the eddah period of three months from 8th March 2017
  3. 3.Divorce certificate to be issued on 8th March 2017
  4. 4.The first respondent to pay Kshs 3,000/= monthly as maintenance for his children effective from March 2017
  5. 5.The 2nd respondent to pay Kshs 2,000/= as balance of the 3,000/= he agreed to give the applicant within 30 days
Jurisdiction invoked
Islamic Sharia law as applied by the Kadhis' Court (Qur'an ch. 4 v. 129 and ch. 2 v. 233)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "ZDB v IT & another [2017] KEKC 10 (KLR)", Case Analysis (2017). Civil Case No 57 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2017/10/eng@2017-03-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.