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KadhiDismissedDivorce Cause No. 106 of 2018

SAK v DA [2018] KEKC 7 (KLR)

Kadhis Court of Kenya at Nairobi
3 September 2018
AHA.I. Hussein
994 words in judgment
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The bottom line

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Kenya's Kadhis Court in Nairobi ruled it can hear a divorce case anywhere in Kenya, even if the marriage happened elsewhere.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection in a divorce cause before the Kadhis Court at Nairobi. The applicant (husband/respondent) objected that the court lacked territorial jurisdiction because the marriage was solemnized in Eldoret and both parties were resident there, and sought transfer of the suit to the Eldoret Kadhis Court. The respondent (wife/petitioner) opposed, stating she and her witnesses now reside in Nairobi and that she fears for her life if she returns to Eldoret, urging that the Nairobi court was properly seized for the interest of justice. The Kadhi examined Article 170(4) of the Constitution, Section 4(2) of the Kadhis Courts Act and Section 15 of the Civil Procedure Act. He found the statutory provisions seemingly in conflict with the Constitution, but held that the jurisdiction of Kadhis Courts is conferred directly by the Constitution; the Kadhis Courts Act merely confirms it, and the Civil Procedure Act does not confer jurisdiction on Kadhis Courts at all. Relying on Mohamed Sitaban v George Mwangi Karoki, where Ringera J stated that Section 15 of the Civil Procedure Act applies only to courts lower than the Resident Magistrates' Court, and noting that the pecuniary jurisdiction of Kadhis Courts exceeds that of Resident Magistrates' Courts, the court held that Article 170(4), by constitutional supremacy, confers jurisdiction within Kenya. The preliminary objection was dismissed with costs to abide the outcome of the main suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Kadhis Court at Nairobi has territorial jurisdiction over a divorce suit where the marriage was solemnized in Eldoret and the parties resided in Eldoret
  2. 2.If not, whether the suit should be transferred to the Eldoret Kadhis Court

Key legal issues

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Territorial jurisdiction of the Kadhis Court at Nairobi over a marriage solemnized and resident in Eldoret

Holding

The preliminary objection fails; the Kadhis Court's jurisdiction under Article 170(4) extends within Kenya and is not limited by the territorial scheme in the Kadhis Courts Act or Section 15 of the Civil Procedure Act

Reasoning

The court set out Article 170(4) of the Constitution, Section 4(2) of the Kadhis Courts Act and Section 15 of the Civil Procedure Act. It noted the provisions appear to conflict, but since the jurisdiction of Kadhis Courts is constitutional in origin, constitutional supremacy means Article 170(4) prevails. Relying on Mohamed Sitaban v George Mwangi Karoki, it held Section 15 of the Civil Procedure Act applies only to courts below the Resident Magistrates' Court and does not confer or limit Kadhis Courts' jurisdiction.

p. 2

Legal principles established

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  • Article 170(4) of the Constitution confers jurisdiction on Kadhis Courts within Kenya, and by constitutional supremacy that provision prevails over conflicting provisions of the Kadhis Courts Act and the Civil Procedure Act
  • Section 15 of the Civil Procedure Act does not confer jurisdiction on Kadhis Courts and applies only to courts lower than the Resident Magistrates' Court

Court orders

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  1. 1.The preliminary objection raised by counsel for the applicant is dismissed
  2. 2.Costs to abide the outcome of the main suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AH
majority

Wrote the judgment

Jurisdiction invoked
Article 170(4) of the Constitution; Kadhis Courts Act; Civil Procedure Act s.15

Relief refused

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Applicant's prayer for transfer of the suit to the Eldoret Kadhis Court

The court found it has jurisdiction within Kenya under Article 170(4) of the Constitution notwithstanding Section 4(2) of the Kadhis Courts Act and Section 15 of the Civil Procedure Act

p. 2

Costs

Costs will abide the outcome of the main suit

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the provision of Section 15 notwithstanding the supremacy of Article 170(4) and the redundancy of Section 4(3) of the Kadhis Courts Act, the said provision does not limit the jurisdiction of Kadhis Courts within its locality and as such this court has jurisdiction within Kenya.
p. 2Territorial jurisdiction of Kadhis Courts under Article 170(4)
In conclusion I find that the preliminary objection raised by Counsel for the applicant be and is hereby dismissed. The costs will abide the outcome of the main suit.
p. 2Final orders - dismissal of preliminary objection and costs

Issues in the judgment

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minor

The judgment refers to 'the redundancy of Section 4(3) of the Kadhis Courts Act' while quoting Section 4(2) and (3)-(4); the provision relied on in the holding is inconsistently identified

minor

The analysis paragraph contains an internally contradictory statement about the reach of Article 170(4)

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, "SAK v DA [2018] KEKC 7 (KLR)", Case Analysis (2018). Divorce Cause No. 106 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2018/7/eng@2018-09-03

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