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KadhiDismissedNot stated in judgment

AA v AM (Divorce Cause E049 of 2022) [2022] KEKC 150 (KLR)

Kadhi's Court
31 August 2022
AAAbdulhalim H. Athman
2,529 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Kadhi's Court confirmed it can decide child custody and maintenance disputes for Muslim families, rejecting arguments that children's courts have exclusive power.

What this practically means

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Executive summary

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The respondent raised a preliminary objection dated June 3, 2022 contending that the Kadhi's Court lacks jurisdiction over children custody, maintenance, health care and education expenses; that the suit offends article 170(5) of the Constitution and section 73 of the Children's Act; and that such claims belong exclusively before the children's court. The petitioner filed no submissions but maintained the court had jurisdiction because the children are the result of an Islamic marriage. The court traced the historical existence of Kadhi's Courts on the Kenyan coast since before 1901 and their constitutional entrenchment, holding that custody and maintenance form part of 'personal status' under article 170(5), a conclusion supported by Muslim jurists, comparative legislation in the UAE, Malaysia, Egypt and Zanzibar, and the 1963 instruments which used the enumerated matters only as examples. The court held that the Children's Act did not oust Kadhi's Court jurisdiction, since it did not repeal the Kadhi's Court Act and did not make children's court jurisdiction exclusive, as confirmed by the Court of Appeal in TSJ v SHSR. It followed purposive High Court decisions, including Amin Mohamed Hassan and ZUDG v SJKUR, while noting the High Court is split on the issue. The court also rejected the argument, raised for the first time in submissions, that the petitioner had not submitted to the jurisdiction. The preliminary objection was dismissed with costs in the cause; the respondent's divorce, pronounced in court on June 2, 2022, was confirmed and may be registered.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Kadhi's Court lacks jurisdiction to hear and determine issues of children custody, maintenance, health care and education expenses
  2. 2.Whether the suit offends article 170(5) of the Constitution of Kenya, 2010
  3. 3.Whether the suit offends section 73 of the Children's Act, Cap 141 Laws of Kenya
  4. 4.Whether the claim for children custody and maintenance ought to be filed before the children's court

Key legal issues

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01

Whether the Kadhi's Court has jurisdiction over children custody and maintenance

Holding

The preliminary objection fails; the court has jurisdiction.

Reasoning

Under article 170(5) and section 5 of the Kadhi's Court Act, the court determines questions of Muslim law relating to personal status. Islamic law consensus treats custody and maintenance as part of personal status ('ad personam' rights). Comparative legislation (UAE, Malaysia, Egypt, Zanzibar) and the 1963 instruments confirm that the enumerated matters are illustrative, not exhaustive. High Court decisions favouring purposive interpretation were followed.

p. 3
02

Whether section 73 of the Children's Act confers exclusive jurisdiction on the children's court

Holding

No; the jurisdiction is not exclusive.

Reasoning

The Court of Appeal in TSJ v SHSR held there is no stipulation in section 73 that children's court jurisdiction is exclusive; other bodies, such as arbitration boards, may resolve custody and maintenance disputes where parties submit to them. The Children's Act also did not repeal the Kadhi's Court Act, using 'may' rather than 'shall'.

p. 4
03

Whether lack of submission to the jurisdiction was properly raised

Holding

It was not; it was raised only at submission stage.

Reasoning

The respondent did not deny submission in his reply to the petition and counterclaim, expressly acknowledging jurisdiction. Submission was not among the issues in the preliminary objection and cannot be introduced at submissions; parties are bound by pleadings.

p. 5

Legal principles established

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  • Personal status under article 170(5) includes issues of children custody and maintenance under Islamic law.
  • The Children's Act did not oust the jurisdiction of the Kadhi's Court over custody and maintenance matters.
  • New issues cannot be raised for the first time at the submission stage.

Court orders

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  1. 1.The preliminary objection dated June 3, 2022 is dismissed
  2. 2.Costs be in the cause
  3. 3.The respondent's divorce pronounced in court on June 2, 2022 was confirmed and may be registered

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AA
majority

Wrote the judgment

Jurisdiction invoked
Article 170(5) of the Constitution of Kenya, 2010 and section 5 of the Kadhi's Court Act, Cap 11

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The preliminary objection fails. It is hereby dismissed. Costs be in the cause.
p. 5Final orders
It is thus well established in islamic law, the applicable law in Kadhi’s Court in Kenya, that personal status includes disputes of custody and children maintenance.
p. 3Jurisdiction over custody and maintenance
Further the enactment of the Children’s Act did not oust the jurisdiction of the Kadhi’s Court and other competent bodies to resolve issue of custody and maintenance.
p. 4Effect of Children's Act on Kadhi's Court jurisdiction

Issues in the judgment

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minor

The judgment alternates between singular and plural voice for the bench in a single-Kadhi court.

minor

Citation of HCCA 120 of 20004 appears to contain a typographical error in the year.

minor

Text refers to 'the children's court act, Cap 141' while elsewhere it is called the Children's Act.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "AA v AM (Divorce Cause E049 of 2022) [2022] KEKC 150 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2022/150/eng@2022-08-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.