FAO v MB (Divorce Cause E006 of 2021) [2021] KEKC 16 (KLR)
The bottom line
#An Isiolo Kadhi's Court dissolved an abusive marriage, gave the mother custody, ordered monthly child support, and split the couple's property equally.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether or not the plaintiff is entitled to divorce
- 2.Jurisdiction of the Court on Children custody
- 3.Children custody and maintenance
- 4.Division of matrimonial property
Key legal issues
#Whether the plaintiff was entitled to divorce
Divorce granted; the marriage had irretrievably broken down due to the defendant's mistreatment, insults, threats and three years of separation
The plaintiff gave uncontroverted evidence of threats with a gun, assault and psychological abuse, corroborated by witnesses who saw marks of violence at the home and produced a written apology by the defendant at an elders' meeting. The couple had lived apart for three years. Islamic law objectives of marriage (love, affection and mercy under Q.30.21) could not be realised, and divorce is a right of each spouse where the relationship is harmful.
Jurisdiction of the Kadhi's Court over child custody and maintenance
The court has jurisdiction, custody and maintenance being incidental to marriage and divorce
Article 170(5) of the Constitution and Section 5 of the Kadhis Court Act confer jurisdiction over matters governed by Islamic law. Child custody and maintenance are incidental to divorce. The court aligned itself with Ali-Aroni J in ZUDG v SJKUR that the Children's Act did not oust Kadhi's jurisdiction, provided the best interests of the child principle is applied.
Custody, legal custody and maintenance of the two children
Actual custody to the mother, joint legal custody to both, maintenance of Kes 8,000 monthly plus education from the father
Both children are of tender age and under both the Children's Act and Islamic law the mother has priority for custody absent special circumstances, based on the Prophet's ruling and Article 106(1) of the Islamic Charter on Family. Islamic law rests maintenance on the father according to children's needs and his financial ability; as a prison warden he is directed to pay Kes 8,000 monthly and provide education.
Division of matrimonial property
The two Maisha Bora plots and the shop held jointly owned and divided equally
The Matrimonial Property Act, 2013, Section 3, permits Muslims to be governed by Islamic law in matrimonial property matters, and the Kadhi's Court has jurisdiction where both parties are Muslims. Islamic law recognizes direct and non-monetary contribution. The plaintiff demonstrated joint purchase of the two plots; in the absence of evidence over the shop's contribution, it too was held jointly owned.
Legal principles established
#- A plaintiff's unchallenged evidence in an ex parte hearing, once proved on a balance of probability, is credible and acceptable
- Kadhi's Courts have jurisdiction over children matters incidental to marriage and divorce, applying the best interests principle under the Children's Act
- Custody of children of tender age is awarded to the mother unless special or peculiar circumstances disqualify her
- Islamic law recognizes both direct and non-monetary contribution of spouses in division of matrimonial property acquired during marriage
Court orders
#- 1.The parties' marriage is dissolved with effect from March 25, 2021, corresponding with 10th Sha'ban 1442 AH, and a Divorce Certificate to issue
- 2.Actual custody of the two children of tender age granted to the plaintiff, the defendant to have reasonable access
- 3.The parties have joint legal custody of the children
- 4.The defendant directed to pay Kes 8,000.00 per month towards children's maintenance and also provide for the children's education
- 5.The matrimonial property at Maisha Bora (two plots) and the shop be divided equally between the parties
- 6.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
#Division of the shop based on demonstrated contribution
There was no evidence adduced over contribution of the shop, but due to lack of evidence to the contrary it was held jointly owned and divided equally
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.
Accordingly, the matrimonial property at Maisha bora and the shop be divided equally between the parties herein. Each party to pay its own costs. Orders accordingly.
The parties' marriage be and is hereby dissolved with effect from March 25, 2021, corresponding with 10th Sha'ban 1442 AH Divorce Certificate to issue.
The actual custody of the children is vested and granted to his mother, the plaintiff herein. The defendant to get reasonable access. The parties have joint legal custody of the children.
The defendant is a prison warden. He is hereby directed to pay Kes 8,000.00 per month and also provide for the children's education.
Although Islamic law eschews divorce, it is nevertheless legal and necessary where the objectives of marriage cannot be realized, the spouses cannot undertake their martial responsibilities or the relationship is harmful and offends fundamental rights of spouses. The recourse to divorce, although primarily vested in the husband, is a right to each of the spouses.
Issues in the judgment
#The judgment's numbering skips paragraph 17, jumping from 16 to 18
Case number and suit title are not stated anywhere in the judgment as provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "FAO v MB (Divorce Cause E006 of 2021) [2021] KEKC 16 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2021/16/eng@2021-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.