SSG v SGR (Divorce Cause E028 of 2021) [2021] KEKC 6 (KLR)
The bottom line
#Kenya's Kadhi's Court confirmed an Isiolo divorce and ordered the father to pay maintenance, edda, and a KES 100,000 conciliatory gift.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Confirmation of the divorce
- 2.Edda Maintenance
- 3.Children custody, access and maintenance
- 4.Mata' conciliatory gift
Key legal issues
#Status of the marriage and validity of the divorce
The marriage was confirmed as dissolved by first minor irrevocable divorce with effect from 13th June 2021, corresponding with 2nd Dhul Qa'da 1442 A.H., and a divorce certificate was ordered to issue.
The respondent had counterclaimed for annulment but confirmed at trial that he divorced the petitioner on 13th June 2021, when she was nine months pregnant. She delivered on 28th July 2021. Given the admission of divorce, the court confirmed the divorce rather than annulling the marriage.
Entitlement to and quantum of edda maintenance
The petitioner, who delivered 45 days after the divorce, was awarded edda maintenance of KES 13,500.00 for the 45-day period at KES 300.00 per day.
Relying on Q.2.241, Q.2.234 and Q.65.4, the court held a divorced wife is entitled to maintenance during edda, being about three lunar months, or until delivery for a pregnant wife. Since the petitioner delivered 45 days after divorce, edda ran for that period only, and the court fixed a daily rate of KES 300.00.
Entitlement to mata' conciliatory gift and its quantum
The petitioner was awarded KES 100,000.00 as mata' conciliatory gift.
The court surveyed scholarly opinion including Al Qurtuby, Sheikh Muhammad Ali Al Sayyis, Imam Ibn Jarir Al Tabary and Sheikh Ibn Uthaimin, concluding mata' is obligatory on divorcing husbands even where the marriage was not consummated. Applying the Bench Book guideline that the gift be commensurate with the husband's financial ability and the ten-year duration of the marriage, KES 100,000.00 was awarded.
Jurisdiction of the Kadhi's Court over children custody and maintenance
The Kadhi's Court has jurisdiction to determine disputes of children custody and maintenance between parties professing the Muslim faith, such issues being incidental to marriage and divorce.
The court held jurisdiction is conferred by the constitution and statutes, not parties. A purposive reading of Article 170(5) of the Constitution and Section 5 of the Kadhis Court Act, together with the fact that the Kadhi's Court Act is not listed among the repealed Acts in the Children's Act, and following Ali-Aroni J in ZUDG v SJKUR, confirmed the jurisdiction.
Custody of and access to the children
Actual custody was granted to the petitioner, joint legal custody to both parties, and the respondent was granted access on weekends and holidays, including sleep-overs at his residence not to interfere with the children's Madrasa program.
Relying on Mehrunisa v. Pravez and Islamic law, the mother has priority for custody of children of tender age absent special circumstances. On access, the court held the right of access is fundamental to the children and in their best interest, and no danger to the children in sleeping over at the father's residence was demonstrated.
Quantum of children maintenance
The respondent was ordered to pay KES 45,000.00 per month for the children's accommodation, sustenance and school and Madrasa transport, and to separately cater for school fees, medication and clothing.
Balancing the children's critical needs against the respondent's financial ability under Q.65.7 and Q.2.233, and noting his net monthly income of at least KES 200,000.00 from salary and undisclosed rental income, the court awarded KES 45,000.00 monthly, while his primary responsibility remains to his parents, children and spouse.
Legal principles established
#- Jurisdiction is conferred by the constitution and statutes and not by agreement of parties; the Kadhi's Court has jurisdiction over children custody and maintenance disputes between persons professing the Muslim faith where incidental to marriage and divorce.
- Unless special or peculiar circumstances exist, custody of minor children is awarded to the mother, a principle recognised both at common law and under Islamic law.
- A divorced wife is entitled to edda maintenance during the waiting period, which for a pregnant woman runs until delivery, under Q.2.241, Q.2.234 and Q.65.4.
- A divorced wife married under Islamic law is entitled to a mata' conciliatory gift, the value of which should be commensurate with the husband's financial ability and duration of the marriage.
- Under Islamic law the responsibility of children's maintenance rests fully on their fathers, the quantum depending on the children's needs and the father's financial ability.
Court orders
#- 1.Parties' marriage confirmed annulled by first minor irrevocable divorce with effect from 13th June 2021 corresponding with 2nd Dhul Qa'da 1442 A.H.; divorce certificate to issue
- 2.Prayer for division of matrimonial property noted as abandoned
- 3.Respondent to pay KES 13,500.00 as edda maintenance
- 4.Petitioner awarded KES 100,000.00 as mata' conciliatory gift
- 5.Actual custody of the minors granted to the petitioner; respondent to have access on weekends and holidays; parties to share joint legal custody; children may sleep over at father's house provided it does not interfere with their Madrasa program
- 6.Respondent to pay KES 45,000.00 per month as children maintenance covering accommodation, sustenance and school and Madrasa transport
- 7.Respondent to continue catering separately for the children's school fees, medication and clothing
- 8.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
- Article 170(5) of the Constitution of Kenya and Section 5 of the Kadhis Court Act, Cap 11
Relief refused
#Division of matrimonial property
The petitioner abandoned this prayer at pre-trial
Annulment of the marriage by the respondent by way of counterclaim
The respondent himself confirmed he had divorced the petitioner, and the marriage was instead confirmed as dissolved by first minor irrevocable divorce
Petitioner's reduced claim of KES 50,000.00 per month as children maintenance
The court fixed maintenance at KES 45,000.00 per month based on the respondent's means and the children's needs
Costs
Each party to 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.
Parties marriage is confirmed annulled first minor irrevocable divorce with effect from 13th June, 2021 corresponding with 2nd Dhul Qa'da 1442 A.H. Divorce certificate to issue.
The respondent to pay KES 13,500.00 as edda maintenance.
The petitioner is awarded 100,000.00 as mata' conciliatory gift.
Actual custody of the minor is granted to the petitioner, the respondent to get access of the children on weekends and holidays. Parties share joint legal custody of the minor.
The respondent to pay KES 45,000.00 per month as children maintenance to cater for accommodation, sustenance and school and Madrasa transport.
Each party to bear its own costs.
Jurisdiction is only conferred by the constitution and statutes and not by parties.
The general principle of law is that custody of such children shall be awarded the mother unless special or peculiar circumstances exist to disqualify her from being awarded custody.
Issues in the judgment
#The issues for determination are numbered '6.' twice in the judgment, duplicating the paragraph numbering.
The judgment inconsistently describes the marriage as both confirmed annulled and confirmed dissolved by divorce, using the word 'annulled' for the divorce outcome despite finding a divorce was effected.
The judgment cites 'Article 159 (2) of the Constitution of Kenya (2020)' although the Constitution of Kenya was promulgated in 2010.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SSG v SGR (Divorce Cause E028 of 2021) [2021] KEKC 6 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2021/6/eng@2021-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.