BA v II [2019] KEKC 9 (KLR)
The bottom line
#A Kenyan Kadhi's Court dissolved a broken marriage, gave the mother custody, and ordered the father to pay child maintenance regardless of excuses.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the marriage had irretrievably broken down and should be dissolved
- 2.Who should have custody of the children of the marriage
- 3.Whether the Respondent should maintain the children and on what terms
- 4.Whether the Petitioner is entitled to eddat maintenance
Key legal issues
#Dissolution of the marriage
The marriage was dissolved on the ground of irretrievable breakdown as evidenced by three years' separation and lack of desire to reconcile.
The court assessed the breakdown objectively, noting the parties had not lived together for three years, showed no interest in reconciliation, and their body language at trial showed they no longer wished to continue the relationship. It held that keeping parties tied in a sham marriage is conducive to immorality and more prejudicial to public interest than dissolution, and that divorce is allowed in Islamic law as a remedy in incompatible unions.
Custody of the children
Petitioner awarded custody, care and control, with the Respondent granted visitation, guided by the best interest of the child under Article 53(2) of the Constitution and Sharia principles.
The court applied Article 53(2) of the Constitution and corroborating Sharia authority (Ibn Qudama, Al Mughni) that custody principles serve the welfare of children. It held both parents' roles are complementary, that the child should interact with both parents rather than staying almost exclusively with the mother, and that the Petitioner was not shown to be an unsuitable parent.
Maintenance of the children
Respondent ordered to pay Kshs. 6,000/- monthly maintenance; the father's obligation is absolute.
Relying on Section 24 of the Children Act, the Constitution (Articles 19(2), 21(3) and 53) and Al Hidaya as well as Chapter 2 Verse 233 of the Holy Qur'an, the court held the children's right to maintenance is absolute and a measure of social justice aimed at preventing vagrancy and destitution. The Respondent, being a person of means running an electronic shop and rental houses, was ordered to maintain the children unconditionally.
Legal principles established
#- Custody is determined by the best interest of the child, which is of paramount importance, and the welfare of the minor is better served where both parents are involved in upbringing.
- A father's duty to maintain his children is unconditional and absolute and cannot be excused by pleading financial constraints if he is capable of earning.
- Where a marriage is wrecked beyond hope of salvage, public policy in upholding marriage loses force and divorce is an appropriate remedy under Islamic law.
Court orders
#- 1.The marriage solemnized in 2009 between the petitioner and the respondent is dissolved
- 2.Certificate of divorce to be issued forthwith
- 3.Petitioner granted custody, care and control of the children of the marriage
- 4.Respondent at liberty to visit the minors at a reasonable and/or agreed time of the day
- 5.Respondent to provide Kshs. 6,000/- monthly towards maintenance of the children
- 6.Respondent to provide eddat maintenance for three (3) months on a reasonable scale to the Petitioner
- 7.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Jurisdiction of the Kadhi's Court over marriage solemnized under Islamic law (Islamic sharia); Constitution Article 53 applied to the children
Relief refused
#Order that the petitioner resume her matrimonial home (sought by Respondent)
Marriage found to have irretrievably broken down and dissolved
Costs
Each party shall bear its own costs.
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.
That the said marriage that was solemnized in respect of the petitioner and the respondent in the year 2009 be hereby dissolved.
That the Respondent shall provide Kshs. 6,000/- monthly towards the maintenance of the children.
That the Petitioner is granted the custody, care and control of the children of the marriage.
''Divorce has been allowed in Islamic Law as a remedy in incompatible union''
Thus the responsibility of the father for the maintenance of his child is unconditional and absolute
Issues in the judgment
#Inconsistency in custody description: earlier the judgment refers to plural children, later refers to 'the child' in singular when assessing custody.
Contradiction in the custody holding: the court states it has not been shown that granting custody to the Petitioner 'will not be' in the child's best interest, where 'will' appears intended.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BA v II [2019] KEKC 9 (KLR)", Case Analysis (2019). Divorce No. 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2019/9/eng@2019-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.