HAH v HAJ (Divorce Cause Case16 of 2020) [2021] KEKC 9 (KLR)
The bottom line
#A Kenyan Kadhi's Court ruled that parents seeking to change custody or maintenance orders must prove a real change affecting the child, not just complain about the original decision.
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 applicant is entitled to review of the maintenance order
- 2.Whether the applicant is entitled to review of the period of access to the child
Key legal issues
#Whether review of custody and maintenance orders is available notwithstanding functus officio
The Kadhi's Court (Practice and Procedure) Rules, 2020 envisage unlimited review of children custody and maintenance matters in the best interests of children; such review is an exception to functus officio, but the applicant must prove material change of circumstances
Rules 79(1) and 162 of the Kadhi's Court (Practice and Procedure) Rules 2020 allow the court at any time, for sufficient reasons and upon proof of change of material circumstances, to revoke, review, suspend or vary orders on the status of children or financial provisions. The rules removed procedural technicalities in realisation of children's rights, making review an exception to functus officio.
Whether the applicant demonstrated material change of circumstances or sufficient grounds for review
The applicant failed: his remarriage does not directly affect the child; the payslip was evidence within his ability to produce at trial; the neglect claim lacked credible evidence
The only change of circumstance was the applicant's remarriage, which does not directly affect the child. The payslip confirming income of Kes 45,596 gross was new but clearly within his knowledge and ability to produce at trial, and confirms the maintenance order is within his means. The medical report showed a preventable, treatable condition and the child had regained weight, so no medical neglect was established.
Legal principles established
#- Review in issues of custody and divorce is allowed as an exception to the general rule of the doctrine of functus officio, but the onus is on the applicant to provide proof to meet the required threshold
- A wrong application of law or wrong finding does not qualify as a ground for review, only as a ground for appeal
- The change of circumstances contemplated for review of custody and maintenance must be those that directly affect the child
Court orders
#- 1.The application be and is hereby dismissed
- 2.Each party to meet its own costs, this being a family matter
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Kadhi's Court jurisdiction under the Kadhi's Court (Practice and Procedure) Rules, 2020, including rules 79(1) and 162(1) and 162(2); Order 45 Civil Procedure Rules, Cap 21
Relief refused
#Stay of execution of the judgment delivered on October 12, 2020
The application failed to meet the required threshold for review and was dismissed in its entirety
Review and variation of the judgment of October 12, 2020 (custody, access and maintenance)
No material change of circumstances directly affecting the child was proved; the payslip was new evidence but was within the applicant's knowledge and ability to produce at trial; the claim of child neglect lacked credible evidence
Costs
This being a family matter, each party to meet 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.
It is my considered view based on the reading of the rules, that review in issues of custody and divorce is allowed as an exception to the general rule of the doctrine of functus officio. However, the onus is on the applicant to provide proof to meet the required threshold.
the appellant's right to seek review, though unfettered, could not be successfully maintained on the basis that the decision of the court was wrong either on account of wrong application of the law or due to failure to apply the law at all....'an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal.'
Even under the new Kadhi’s Court (procedure & practice) rules (2020), the application failed to meet the required legal threshold for review. The application fails. It be and is hereby dismissed. This being a family matter, each party to meet its own costs.
Issues in the judgment
#The roles of 'applicant' and 'respondent' are used inconsistently; paragraph 1 refers to the applicant as 'the respondent’s children case' when describing the applicant's own suit in the Chief Magistrate's Court
Typos throughout the judgment, e.g. 'functus oficio' for 'functus officio' and 'suficient' for 'sufficient'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "HAH v HAJ (Divorce Cause Case16 of 2020) [2021] KEKC 9 (KLR)", Case Analysis (2021). Kadhi's Court at Isiolo, Notice of Motion dated July 5, 2021 (arising from judgment of October 12, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2021/9/eng@2021-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.