HGG v GGG (Divorce Cause 46 of 2018) [2018] KEKC 38 (KLR)
The bottom line
#Kenya's Kadhi's Court confirmed a divorced mother keeps interim custody of her children and cannot be evicted from the matrimonial home while the case is pending.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Custody of the three minor children of the marriage
- 2.Maintenance of the minor children
- 3.Whether the respondent should be restrained from evicting the applicant from the matrimonial home
Key legal issues
#Who should have interim custody of the three minor children?
Interim custody granted to the mother; no extenuating circumstances were proved to displace maternal priority
The children had lived with their mother all their life and the father had unilaterally removed them to Nairobi, disrupting their stability. Under Article 53(2) of the Constitution and sections 76 and 83 of the Children's Act, the best interests of the child are paramount. Both general law (Mehrunisa v Pravez; Githunguri v Githunguri) and Islamic law (traditions of the Prophet and the Islamic Charter on Family) give mothers priority for children of tender age absent special circumstances. None were proved; full trial remains open to both parties.
Whether the applicant could be evicted from the matrimonial home pending determination
She could not be evicted, since the respondent is obliged to continue providing the children's accommodation
The court linked the children's accommodation to the respondent's maintenance obligation. As the respondent shall continue providing for the children's accommodation, sustenance and education, and the children remain with the mother, evicting her would disrupt the children's wellbeing pending full determination.
Legal principles established
#- In considering issues relating to children, the best interests of the child are paramount
- Unless there exist peculiar and special circumstances, the mother has priority in custody of minor children
- Under Islamic law the same principle of maternal priority for children of tender age applies
Court orders
#- 1.Pending hearing and determination of the case, custody of the children is granted to the plaintiff/applicant
- 2.The defendant/respondent is granted unlimited access to the children
- 3.The respondent shall continue to provide for the children's accommodation, sustenance and education
- 4.The applicant cannot be evicted from the matrimonial home until the matter is determined
- 5.The children's officer to make investigation and file a comprehensive report to assist in determination of custody at full trial
- 6.Application granted as prayed
- 7.Costs be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Kadhi's Court jurisdiction over parties professing the Muslim faith in matters governed by Islamic law (application invokes the Children's Act and Article 53(2) of the Constitution); court expressly left challenges to its competence on matrimonial property for later determination
Relief refused
#Immediate division of matrimonial property
Such division can only be determined in the main suit upon hearing of viva voce evidence
Costs
Costs be in the cause.
Quotable passages
#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 pending hearing and determination of this case custody of the children is granted to the plaintifi / applicant, defendant / respondent to get unlimited access.
Application granted as prayed.
Costs be in the cause.
A child’s best interests are of paramount importance in every matter concerning the child
The mother has the greatest right to custody of the child according to Islamic Shariah.
The respondent shall continue to provide for the children's accommodation, sustenance and education.
Issues in the judgment
#Judgment inconsistently describes the defendant's employment, first stating he is a Police officer then that he is apparently not employed
Divorce date inconsistently stated as December 2017 in the replying affidavit and May 9, 2017 in submissions
Switches from first person singular to plural in the closing paragraphs, suggesting possible editing
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "HGG v GGG (Divorce Cause 46 of 2018) [2018] KEKC 38 (KLR)", Case Analysis (2018). Notice of Motion dated October 18, 2018 (Isiolo). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2018/38/eng@2018-11-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.