FAA v IAM (Matrimonial Case E005 of 2021) [2021] KEKC 15 (KLR)
The bottom line
#An Isiolo Kadhi's Court confirmed it can decide child custody and maintenance cases, giving custody to the mother and ordering the father to pay maintenance.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Jurisdiction of the Court on Children custody
- 2.Whether or not the petitioner is fit to have children custody and maintenance
Key legal issues
#Whether the Kadhi's Court has jurisdiction over child custody and maintenance disputes
Yes - custody and maintenance issues incidental to marriage and divorce fall within the Kadhi's Court's jurisdiction under Article 170(5) of the Constitution and Section 5 of the Kadhis Court Act, and the Children's Act did not oust that jurisdiction.
Article 170(5) and Section 5 of the Kadhis Court Act donate jurisdiction to the Kadhi's court. Custody and maintenance are incidental to marriage and divorce, which squarely fall within the court's remit. The High Court had made contrasting decisions on whether the Children's Court's establishment ousted this jurisdiction, but the court aligned itself with Ali-Aroni J's decision in ZUDG v SJKUR, holding that Kadhis, like gazetted magistrates, may hear children's matters connected to causes before them, applying the Children's Act's best interests principle.
Whether the petitioner is a fit parent to have custody of the children
Yes - despite past tramadol addiction, medical evidence confirmed she is currently free of drug abuse and of normal behaviour and stable mind, so she is fit to take actual care and custody of the children.
PW1 testified the petitioner never used drugs and was a good, non-violent mother. A medical report by Dr. Mohamud Guyo dated March 8, 2021 found no traces of drugs on physical examination and blood tests. Although the petitioner admitted past tramadol use for ulcer pain relief, the court found she likely became addicted during treatment and that evidence and medical tests confirmed she was now drug-free and mentally stable. The elders' contrary decision had not interrogated her fitness or the children's best interests.
The applicable principles for custody of children of tender age
Both general Kenyan law and Islamic law give mothers priority for custody of children of tender age unless special or peculiar circumstances disqualify them; the paramount consideration is the best interests of the children under Section 76(3) of the Children's Act.
Section 76(3) of the Children's Act directs courts to consider children's physical, emotional and educational needs and avoid disruption to their wellbeing. Mehrunisa v Pravez states the general principle that custody of young children goes to the mother absent special circumstances. Islamic law follows the same principle, based on the ruling of the Prophet Muhammad on a divorced wife's custody complaint and Article 106(1) of the Islamic Charter on Family. Given the children's tender ages and the petitioner's fitness, actual custody vested in her.
The quantum of children's maintenance payable by the father
Maintenance is the father's responsibility under Islamic law, measured against the children's needs and his financial ability; the businessman respondent was directed to pay at least Kes 15,000.00 per month and provide for the children's education.
There is no standard quantum; the court balances the children's needs and the father's financial ability under Qur'an 65:7 read with Q.2.233, which provide that one with abundance spends of it and no soul bears more than it can. The respondent is a businessman. The court fixed a minimum of Kes 15,000.00 monthly and additionally required provision for education.
Legal principles established
#- The Children's Act did not oust the jurisdiction of the Kadhi or other subordinate courts in dealing with issues of children, especially where connected and incidental to the cause before the Kadhi, so long as the court applies the best interests of the child principle.
- Unless there exist peculiar and special circumstances, custody of minor children of tender age is awarded to the mother.
- Under Islamic law, the responsibility of children's maintenance rests fully on their fathers, based on the children's needs and the father's financial ability; there is no standard quantum, it being discretionary.
Court orders
#- 1.Actual custody of all three children vested and granted to the mother, the petitioner
- 2.The respondent (defendant) to get unlimited access to the children
- 3.The parties have joint legal custody of the children
- 4.The children officer – Isiolo to make regular periodic supervisory visits on the children's wellbeing, progress and development
- 5.The respondent to hand over the two minor children to the petitioner within six (6) weeks of delivery of judgment
- 6.The respondent to pay at least Kes 15,000.00 per month in child maintenance and also provide for the children's education
- 7.Each party to pay 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 (2010) and Section 5 of the Kadhis Court Act, Cap 11
Relief refused
#Sole legal custody of all the children
The court granted the parties joint legal custody while vesting actual custody in the petitioner
Costs
Each party to pay 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.
In the circumstances, totality of evidence and considering the children are of tender age, the actual custody of the children is vested and granted to his mother, the petitioner herein. The defendant to get unlimited access. The parties have joint legal custody of the children.
The respondent is directed to hand over the two minor children to the petitioner within six [6] weeks of delivery of judgment.
The defendant is a businessman. He is hereby directed to pay at least Kes 15,000.00 per month and also provide for the children's education.
Child custody and maintenance issues being incidental to the issue of marriage and divorce falls within the jurisdiction of the court.
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
Each party to pay its own costs.
Issues in the judgment
#The judgment refers to the respondent as both 'respondent' and 'defendant' in its orders, e.g. 'The defendant to get unlimited access' and 'The respondent is directed to hand over the two minor children'
Paragraph 3 states the respondent opposed custody 'because the respondent is a drug addict and violent', which on its face attributes the addiction and violence to the respondent while the surrounding context shows these were allegations against the petitioner
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "FAA v IAM (Matrimonial Case E005 of 2021) [2021] KEKC 15 (KLR)", Case Analysis (2021). Not stated in the judgment (custody and maintenance suit, Isiolo Kadhi's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2021/15/eng@2021-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.