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KadhiPartially AllowedNot stated on the face of the judgment· [2019] KEKC 23 (KLR)

Ffg v Dmm [2019] KEKC 23 (KLR)

Kadhis' Court
9 April 2018
1,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan Kadhi's Court dissolved a broken Islamic marriage, granted the mother custody, and ordered the father to pay child maintenance, dowry balance, send-off fee and Eddat support.

What this practically means

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Executive summary

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The Petitioner married the Respondent on 17 March 2015 under Islamic law at the Kadhis' Court at Busia, and the union was blessed with one child aged three years. By a petition filed on 22 March 2018, the Petitioner sought dissolution of the marriage, a divorce certificate, maintenance and medical expenses for the minor, payment of unpaid dowry/Mahr of Kshs. 49,000, and a send-off fee of Kshs. 10,000. The petition was defended and proceeded as a defended cause on 6 April 2018. The Petitioner testified to cruelty, verbal abuse and negligence by the Respondent, causing mental and psychological torture. Both parties were in agreement that the marriage had broken down, and the Respondent had issued a written termination of the marriage dated 17 March 2018 with the consent of both parties; neither party was interested in reconciliation. The court, drawing on the Holy Quran 2:231 and Islamic law authority, held the marriage was a shell serving no useful purpose and granted the dissolution. On custody, the court applied Article 53(2) of the Constitution, holding the child's best interests paramount, and granted the Petitioner custody, care and control with unrestricted access to the Respondent. Applying Section 24 of the Children's Act and Islamic authority on parental duty, the court ordered the Respondent to contribute Kshs. 10,000 monthly towards the child's maintenance, to clear the dowry balance of Kshs. 49,000 by 31 December 2018, to pay a send-off fee of Kshs. 10,000, and to provide Eddat maintenance to the Petitioner for three months. No matrimonial property order was made as there was no dispute. Each party was ordered to bear its own costs.

Key legal issues

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01

Dissolution of marriage under Islamic law

Holding

The marriage was dissolved where both parties agreed it had broken down and the Respondent had issued a written termination with the consent of both parties

Reasoning

The court found it common cause that the marriage had broken down and the Respondent had issued a written termination of the marriage with the consent of both parties. Drawing on the Holy Quran 2:231 and scholarly authority on Islamic law, the Kadhi held that a marriage that cannot be made to work should be dissolved rather than prolonged. The court found cruelty, verbal abuse and negligence by the Respondent that caused mental and psychological torture, and that neither party sought reconciliation.

p. 2
02

Custody of the minor

Holding

Custody, care and control of the minor was granted to the Petitioner, guided by the best interests of the child, with unrestricted access to the Respondent

Reasoning

The Petitioner gave evidence that she was the most suitable parent to have custody, having more time for the child than the Respondent. The court applied Article 53(2) of the Constitution, holding that a child's best interests are of paramount importance in every matter concerning the child, and granted custody to the Petitioner while giving the Respondent unrestricted access.

p. 2
03

Maintenance of the minor and ancillary payments

Holding

The Respondent to contribute Kshs. 10,000 monthly for the child's maintenance, pay dowry balance of Kshs. 49,000 by 31 December 2018, send-off fee of Kshs. 10,000, and Eddat maintenance for 3 months

Reasoning

The Respondent offered Kshs. 10,000 monthly towards maintenance. The court relied on Section 24 of the Children's Act, the Constitution and Al Hidaya to impose the parental duty of maintenance covering education, clothing, shelter and medical care. The Respondent conceded the dowry balance of Kshs. 49,000 and the send-off fee of Kshs. 10,000, and Eddat maintenance for three months was ordered on a reasonable scale.

p. 3
04

Matrimonial property

Holding

No order made on matrimonial property as there was no dispute

Reasoning

The Petitioner submitted she had contributed to the acquisition of matrimonial properties, but the court noted there was no dispute on the same and made no distribution order.

p. 2

Legal principles established

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  • In matters concerning a child, the child's best interests are of paramount importance
  • Parents have a duty to maintain their child, which includes a right to education and guidance, clothing, shelter and medical care
  • Divorce is a necessary social evil where a marriage has broken down irretrievably

Court orders

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  1. 1.A decree is granted for the dissolution of marriage between the Petitioner and the Respondent
  2. 2.Divorce certificate be issued
  3. 3.The custody care and control of the minor of the marriage named herein before be granted to the petitioner
  4. 4.The Respondent shall have unrestricted access of the child and the modality of such access be agreed upon
  5. 5.The Respondent shall contribute Kshs. 10,000/= every month towards maintenance of the child effective from this month (April 2018)
  6. 6.The Respondent shall also clear the dowry balance of Kshs. 49,000/= before 31st December, 2018
  7. 7.The Respondent shall pay the send-off fee of Kshs. 10,000/-
  8. 8.The Respondent shall provide EDDAT maintenance to the petitioner for a period of 3 months on a reasonable scale
  9. 9.Each party shall bear his/her own costs
Jurisdiction invoked
Jurisdiction as Kadhi over marriage conducted in accordance with Islamic law at the Kadhis' Court at Busia; Article 53(2) of the Constitution and the Children's Act applied on the minor's welfare

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, "Ffg v Dmm [2019] KEKC 23 (KLR)", Case Analysis (2018). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2019/23/eng@2019-04-09

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