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KadhiPartially AllowedChamber Summons dated 7th November, 2018 (Bungoma Kadhi's Court)

TAM v HMG [2018] KEKC 21 (KLR)

Kadhi's Court
22 November 2018
965 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma Kadhi's Court let a husband avoid salary attachment only if he pays his wife Kshs 15,000 monthly maintenance in full by Mpesa before the 5th of each month.

What this practically means

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Executive summary

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The applicant, the respondent's wife, sought by chamber summons dated 7th November 2018 the attachment of the respondent's salary at Ksh. 15,000/- monthly in execution of consent orders of 16th August 2018 under which the respondent had agreed to pay Ksh. 15,000/- monthly family maintenance by Mpesa. She complained that she received only trivial instalments (as low as Kshs 50/- and Kshs 500/-) despite the respondent earning a net of about Kshs 61,000/- monthly as a salaried employee of Jubilee Insurance Company of Kenya Ltd. She asked that the amount be deposited directly, along with rent and other bills, into her Gulf African Bank account. The respondent opposed, arguing he was compliant, that he serviced a family loan of Kshs 25,595/- monthly, paid rent and bills, and that the applicant was wasteful; he promised to pay the full amount monthly if given the chance. Applying Article 170(5) of the Constitution and sections 5 and 6 of the Kadhi's Court Act, the court found the instalment payments unacceptable and that the respondent's behaviour had provoked the application. To protect the parties' continuing marriage, it directed payment of the full Kshs 15,000/- by Mpesa before the 5th of each month, made the respondent responsible for rent, electricity, water, school and major medical expenses, directed a compliance review after three months, and ordered no costs. Immediate attachment was declined, but made the immediate consequence of default.

Questions the Court framed

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

  1. 1.Whether attachment of the respondent's salary was the best option in the circumstances
  2. 2.Whether the attachment of the respondent's salary is fair in the circumstances herein

Key legal issues

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01

Whether the respondent's salary should be attached for non-compliance with the consent maintenance order of 16th August 2018

Holding

Attachment was not ordered immediately; the respondent was directed to pay the full Kshs 15,000/- monthly at once by Mpesa, failing which salary attachment would follow

Reasoning

The respondent, though a salaried employee earning about Kshs 61,000/- net monthly, paid the ordered maintenance in trivial instalments (as low as Kshs 50/- and Kshs 500/-). His explanations that the applicant was wasteful and that he serviced a family loan and household bills did not convince the court, which found the applicant's request was caused by the respondent's behaviour. Balancing the family's well-being and the parties' continuing cohabitation, the court gave a final chance for direct payment with attachment as the immediate consequence of default.

p. 2
02

Jurisdiction of the Kadhi's court to determine the parties' matrimonial maintenance dispute

Holding

The court was properly seised under Article 170(5) of the Constitution and sections 5 and 6 of the Kadhi's Court Act, the parties being Muslims married under Islamic law

Reasoning

The parties' marriage was established under Islamic law and both professed the Muslim religion. The court therefore applied Muslim law to questions of maintenance arising from the marriage, guided by Article 170(5) as read with sections 5 and 6 of the Kadhi's Court Act, Cap 11.

p. 2

Legal principles established

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  • The jurisdiction of a Kadhi's court is limited to determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all parties profess the Muslim religion and submit to that jurisdiction
  • The law and rules of evidence applicable in a Kadhi's court are those applicable under Muslim law

Court orders

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  1. 1.Parties to stay together and observe peace as husband and wife
  2. 2.Respondent to submit Ksh 15,000/- monthly family maintenance to Applicant once by Mpesa before the 5th of each proceeding month
  3. 3.Rent, electricity and water expenses to be the responsibility of the respondent
  4. 4.School and major medical expenses to be the responsibility of the respondent
  5. 5.Parties to follow up for compliance of the orders after three months at the court's registry
  6. 6.No orders as to costs

The bench

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

DR
D.S. RatoriPrincipal Kadhi
majority

Wrote the judgment

Jurisdiction invoked
Article 170(5) of the Constitution of Kenya 2010 as read with sections 5 and 6 of the Kadhi's Court Act, Cap 11

Relief refused

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Immediate attachment of the respondent's salary of Ksh. 15,000/- monthly

The court instead ordered payment of the maintenance in full monthly, with attachment only as a fallback upon non-compliance, to preserve the marital relationship

p. 2

Costs

No orders as to costs.

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.

Though the respondent argued that the little instalments were made because the applicant was a wasteful person and had other bills to pay, the court was not convinced and the applicant request for salary attachment may have been caused by the respondent's behavior.
p. 2Non-compliance with maintenance order
The court in protecting and preserving the relationship of the parties who still stayed together as husband and wife, and upon considering orders of 16th August 2018, direct that the kshs 15,000/- monthly family maintenance be paid at once to benefit the family well.
p. 2Preservation of marriage and direction on payment
Failure to which salary attachment will be the immediate option.
p. 2Consequence of default
Respondent to submit Ksh 15,000/- monthly family maintenance to Applicant once by Mpesa before 5 th of each proceeding month.
p. 2Final orders
No orders as to costs.
p. 2Costs

Issues in the judgment

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minor

The quoted text of section 5 of the Kadhi's Court Act in the judgment appears to be a paraphrase describing jurisdiction rather than the statutory text, and omits the words 'of Muslim law'

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, "TAM v HMG [2018] KEKC 21 (KLR)", Case Analysis (2018). Chamber Summons dated 7th November, 2018 (Bungoma Kadhi's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2018/21/eng@2018-11-22

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