SS & another v HSG (Matrimonial Cause E007 of 2020) [2021] KEKC 19 (KLR)
The bottom line
#A Kenyan Kadhis' Court confirmed that a father must keep supporting his children—even adult unmarried daughters—and pay his long-term wife a conciliatory gift after divorce.
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 first applicant and the children are entitled to custody of and residence in the matrimonial home
- 2.Whether the respondent is obliged to provide maintenance for the children, including adult unmarried daughters
- 3.Whether the divorced first applicant is entitled to edda maintenance and mata' (conciliatory gift)
Key legal issues
#Father's maintenance obligation to children, including adult unmarried daughters
The respondent has a legal responsibility to protect and provide for his children, including the adult daughters who are neither married nor employed
Section 2 of the Children's Act defines a child as under 18, but section 28 allows extension of parental responsibility beyond 18 in special circumstances. Islamic law extends daughters' right to parental responsibility until marriage. Classical juristic authorities (Al Zuhaily; Ibn Abidin) establish consensus that fathers are compelled to provide for children based on need and ability, with the court balancing the two factors under Q.65.35 read with Q.2.233.
Forcing the family out of the matrimonial home
The respondent acted wrongly in evicting his wife and children and leaving them destitute; this does not extinguish his obligations
It was undisputed that the respondent divorced the first applicant on November 28, 2020 and forced her out of the matrimonial home. The applicants had not agreed to leave and had difficulty obtaining accommodation, food and education. The court held his conduct irresponsible, inhumane and illegal and held that his financial situation does not excuse him from discharging his responsibility as a father.
Entitlement of the divorced wife to mata'
The first applicant is entitled to a conciliatory gift of at least 15% of the value of the Tulu Roba property
After a marriage of 27 years, the divorced wife under Q.2.241 is entitled to edda maintenance and mata'. The court quantified the mata' at a minimum of 15% of the value of the respondent's only investment, the Tulu Roba property, payable when the respondent receives his final dues from his employer, taking account of his retirement and pending dues.
Legal principles established
#- Islamic law rests responsibility for children's maintenance fully on the father, based on the children's needs and the father's financial ability, and courts may compel fathers to provide for children till they become independent
- Section 28 of the Children's Act permits extension of parental responsibility beyond the age of 18 where special circumstances exist
- A divorced wife after a long marriage is entitled to edda maintenance and mata' (conciliatory gift)
Court orders
#- 1.Respondent to provide accommodation and sustenance of Kes 10,000.00 per month for the three children living with the first applicant
- 2.Respondent to provide for the children's education
- 3.First applicant entitled to conciliatory gift (mata') of at least 15% of the value of the Tulu Roba property, payable upon receipt of the respondent's final dues from his employer
- 4.Marriage confirmed annulled, first revocable divorce (within 90 days) with effect from November 28, 2020; divorce certificate to issue
- 5.Matter marked resolved and settled with finality
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Jurisdiction of the Kadhis' Court over parties professing the Muslim faith in questions of marriage, divorce and maintenance under Islamic law; Children's Act No. 8 of 2001 applied
Relief refused
#Injunction restraining the respondent from evicting the applicants from the matrimonial home
The applicants abandoned this prayer in their submissions, apprehensive of mistreatment, and instead sought support for accommodation, sustenance and education
Custody of the children with the first applicant (as framed in the motion)
The court settled the issues through maintenance and divorce orders rather than granting custody as prayed; the children were to remain with their mother by the maintenance arrangement
Costs
No costs order made in the judgment
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 respondent is ordered to provide for his three children who are living with their mother, the first applicant as follows: i. Accommodation and sustenance Kes 10,000.00 per month
The first applicant is entitled to conciliatory gift mata’ at least 15% the value of the Tulu Roba property.
The Parties marriage is confirmed annulled, first revocable divorce [within 90 days] with efiect from November 28, 2020. Divorce certificate to issue.
The ruling settles all the issues in the petition with finality. The matter is marked resolved and settled.
Issues in the judgment
#Judgment inconsistently states the length of the marriage, referring to both 27 and [27] years, while also recording the marriage was contracted in 1993 (which would be about 27 years to 2020)
The judgment does not state the case number or the names of the parties, referring only to 'applicants' and 'respondent' and to a 'petition' with a 'defense'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SS & another v HSG (Matrimonial Cause E007 of 2020) [2021] KEKC 19 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2021/19/eng@2021-01-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.