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KadhiPartially AllowedNot stated in the judgment

WMW(F) v IAA [2021] KEKC 5 (KLR)

Kadhis' Court
23 June 2021
644 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Busia Kadhi's Court dissolved an Islamic marriage and settled custody by consent, showing Kenyan courts actively push family disputes toward out-of-court settlement.

What this practically means

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Executive summary

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The Petitioner and the Respondent, both police officers, married under Islamic customs on 6th December 2008 in Webuye and were blessed with three children, one of whom (JW) is deceased. By a petition filed on 5th February 2021, the Petitioner sought dissolution of the marriage and custody of the issues of the marriage, contending that the Respondent had abandoned and abused her for two and a half years such that the marriage had irretrievably broken down. The Respondent was duly served. At the hearing on 3rd June 2021 the Respondent arrived shortly after the Petitioner concluded her testimony, and the court granted both parties a fresh hearing date. At the resumed hearing on 7th June 2021, invoking Article 159(2)(c) of the Constitution on alternative dispute resolution, the court advised the parties to settle out of court. They returned the same afternoon with agreed terms: dissolution of the marriage; physical custody of the two children to the Petitioner; joint legal custody to both parties; reasonable access to the Respondent including school holidays; monthly maintenance of Kshs. 10,000 by the Respondent; each party meeting 50% of the children's education costs; and the Respondent to release the Petitioner's belongings from the Webuye matrimonial home. The Kadhi adopted the agreed terms as orders of the court, dissolved the marriage, and made no order as to costs. Judgment delivered at Busia on 23rd June 2021 by Senior Resident Kadhi Idris N. Nyaboga.

Questions the Court framed

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

  1. 1.Whether the marriage between the Petitioner and the Respondent should be dissolved
  2. 2.Whether custody of the issues of the marriage should be granted to the Petitioner

Key legal issues

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01

Dissolution of an Islamic marriage on the ground of irretrievable breakdown

Holding

The marriage was dissolved, the parties having agreed on dissolution at the out-of-court settlement

Reasoning

The Petitioner petitioned for dissolution on the ground that the Respondent had abandoned and abused her for two and a half years, leaving the marriage irretrievably broken down. The Respondent was served and the parties, after the court advised them to explore settlement, agreed that the marriage be dissolved. The Kadhi adopted the agreed terms and ordered the marriage dissolved.

p. 2
02

Custody and maintenance of the issues of the marriage

Holding

By consent, physical custody to the Petitioner, joint legal custody to both parties, access to the Respondent, monthly maintenance of Kshs. 10,000 by the Respondent, and shared education costs

Reasoning

The parties returned from the settlement discussions and reported that they had agreed on custody, access, maintenance and education costs. The court, promoting amicable settlement under Article 159(2)(c), adopted the agreed terms as orders of the court, granting physical custody to the Petitioner, joint legal custody to both, access to the Respondent, and directing the Respondent to pay monthly maintenance of Kshs. 10,000 towards the two children.

p. 2

Legal principles established

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  • Courts should encourage settlement of disputes through alternative forms of dispute resolution, including where parties are advised to settle out of court

Court orders

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  1. 1.The marriage between the Petitioner and the Respondent is hereby dissolved
  2. 2.Actual/physical custody of the two issues of the marriage granted to the Petitioner
  3. 3.Joint legal custody of the two issues of the marriage granted to both the Petitioner and the Respondent
  4. 4.The Respondent granted liberty of access to the two children at reasonable times and they spend their school holidays with him
  5. 5.The Respondent to provide Kshs. 10,000 monthly towards maintenance of the two issues of the marriage
  6. 6.Both parties to each provide 50% towards the education of the two issues of the marriage
  7. 7.The Respondent to release all the belongings of the Petitioner in his possession
  8. 8.No order as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Not expressly stated in the judgment; divorce and custody of issues of an Islamic marriage, with reference to Article 159(2)(c) of the Constitution on alternative dispute resolution

Relief refused

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Sole custody of the issues of marriage as prayed by the Petitioner

Custody was settled by consent: physical custody to the Petitioner but joint legal custody to both parties with access to the Respondent

p. 1

Costs

No order 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.

That, the marriage between the Petitioner and the Respondent is hereby dissolved.
p. 2Dissolution of marriage
That, actual/physical custody of the two issues of the marriage between the Petitioner and the Respondent is hereby granted to the Petitioner.
p. 2Physical custody
That, the Respondent to provide a monthly Kenyan shilling, 10,000 towards the maintenance of the two issues of marriage.
p. 2Child maintenance
That, no order as to costs.
p. 2Costs
Article 159 (2) (c) provides for alternative forms of dispute resolution and thus, the court advised the parties to first try to settle their case out of court.
p. 1Alternative dispute resolution

Issues in the judgment

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minor

The petition sought sole custody of the issues of marriage, but the final orders concern only 'the two issues' (one child, JW, is recorded as deceased); no express finding on this appears in the judgment

minor

Case number is not stated anywhere in the judgment

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, "WMW(F) v IAA [2021] KEKC 5 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2021/5/eng@2021-06-23

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