WMW(F) v IAA [2021] KEKC 5 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the marriage between the Petitioner and the Respondent should be dissolved
- 2.Whether custody of the issues of the marriage should be granted to the Petitioner
Key legal issues
#Dissolution of an Islamic marriage on the ground of irretrievable breakdown
The marriage was dissolved, the parties having agreed on dissolution at the out-of-court settlement
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.
Custody and maintenance of the issues of the marriage
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
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.
Legal principles established
#- Courts should encourage settlement of disputes through alternative forms of dispute resolution, including where parties are advised to settle out of court
Court orders
#- 1.The marriage between the Petitioner and the Respondent is hereby dissolved
- 2.Actual/physical custody of the two issues of the marriage granted to the Petitioner
- 3.Joint legal custody of the two issues of the marriage granted to both the Petitioner and the Respondent
- 4.The Respondent granted liberty of access to the two children at reasonable times and they spend their school holidays with him
- 5.The Respondent to provide Kshs. 10,000 monthly towards maintenance of the two issues of the marriage
- 6.Both parties to each provide 50% towards the education of the two issues of the marriage
- 7.The Respondent to release all the belongings of the Petitioner in his possession
- 8.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
No order as to 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 marriage between the Petitioner and the Respondent is hereby dissolved.
That, actual/physical custody of the two issues of the marriage between the Petitioner and the Respondent is hereby granted to the Petitioner.
That, the Respondent to provide a monthly Kenyan shilling, 10,000 towards the maintenance of the two issues of marriage.
That, no order as to costs.
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.
Issues in the judgment
#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
Case number is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.