SK v SM (Miscellaneous Cause 329 of 2022) [2023] KEKC 9 (KLR)
The bottom line
#Kenya's Kadhi's Court confirmed it can decide child custody disputes between Muslims, then granted the father monthly access and restricted the child's international travel.
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 this court has jurisdiction to handle disputes relating to children
- 2.Whether or not the court is functus officio
- 3.What orders can the court grant or make in the circumstances of this case
Key legal issues
#Whether the Kadhi's Court has jurisdiction over children custody and maintenance disputes
Yes - custody and maintenance are matters of personal status within Article 170(5), and the Children's Act did not oust that jurisdiction
The court traced the historical existence of Kadhi's Courts predating the modern Kenyan judiciary and held that Muslim jurists concur custody and maintenance form part of personal status ('ad personam' rights). Comparative statutes (UAE, Malaysia, Egypt, Zanzibar) confirm this. The Children's Act did not list the Kadhi's Court Act among repealed statutes and used 'may' rather than 'shall', envisaging other competent forums. The court adopted the purposive interpretation in Amin Mohamed Hassan and preferred it over the narrower textualist line of authority.
Whether the court was functus officio after the orders of August 24, 2022
No - the orders of August 24, 2022 were an irregular ex-parte judgment obtained through non-disclosure of material facts and non-service, and could be revisited under sections 79(1) and 171 of the Kadhi's Rules
Applying the functus officio doctrine as expounded in Raila Odinga and Jersey Evening Post, the court distinguished a regular judgment from an irregular ex-parte judgment. The petitioner had deposed that she did not know the applicant's whereabouts, which the evidence (WhatsApp communications, known Kampala residence) disproved. The right to be heard is a fundamental constitutional right; sections 79(1) and 171 of the Kadhi's Rules permit reconsideration and retain inherent powers to prevent injustice.
What substantive orders should issue on custody and access
Rather than strike out or order retrial, the court reviewed the August 24, 2022 orders: equal legal custody, actual custody to the mother with reasonable access to the father, and restrictions on international travel
Paternity, the child's minority and actual custody were not disputed; only access was contested. Given the court's found jurisdiction and the child's best interests, it was efficacious to issue necessary orders directly. Both parents share equal legal custody; the petitioner holds actual care and control with the respondent granted access of at least one week monthly and one three-week holiday annually; international travel (save to Uganda) requires the respondent's consent or a court order.
Legal principles established
#- The Kadhi's Court has jurisdiction to hear and determine disputes of children custody and maintenance between parties who profess the Muslim faith and submit to its jurisdiction, as such matters fall within 'personal status' under Article 170(5)
- An Act of Parliament should not be interpreted to oust the provisions of the Constitution
- An irregular ex-parte judgment obtained through non-disclosure and non-service ought to be set aside as of right, not as a matter of discretion
Court orders
#- 1.The ruling and orders of August 24, 2022 are reviewed
- 2.Both parents share equal legal custody of the minor
- 3.The petitioner is granted actual care, control and custody of the minor; the respondent to get reasonable access of at least one week every month and one holiday (3 weeks) a year
- 4.The petitioner may only travel with the child out of the country, except to Uganda, with the express consent of the respondent or an order of the court
- 5.Each party to bear 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 Kadhi's Court Act (Cap 11)
Relief refused
#Striking out of the originating summons dated July 28, 2022 for want of jurisdiction
The court found it has jurisdiction over children custody and maintenance disputes between parties professing the Muslim faith, and it was prudent to issue substantive orders rather than strike out the proceedings
Costs
Each party to bear 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.
I find that the Kadhi's Court has requisite jurisdiction to hear and determine disputes of children custody and maintenance between parties who profess the Muslim faith and submit to its jurisdiction.
I find that the ruling and consequent orders of this court made on August 24, 2022 is an irregular ex-parte judgment obtained through lack of full disclosure of material facts and non-service of the applicant herein
Both parents share equal legal custody of the minor.
The petitioner is granted actual care, control and custody of the minor, respondent to get reasonable access; at least one week every month and one holiday (3 weeks) a year.
The petitioner may only travel with the child out of the country, except to Uganda, with the express consent of the respondent or an order of the court.
Each party to bear its own costs.
Issues in the judgment
#The judgment refers to 'Children's Court Act, cap 141 Laws of Kenya' enacted March 1, 2002, while elsewhere citing 'the Children's Act No 8 of 2001' - two different statutes/numbers for the children legislation
Case citation for Amin Mohamed Hassan appears inconsistently as 'HCCA 120 of 20004'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SK v SM (Miscellaneous Cause 329 of 2022) [2023] KEKC 9 (KLR)", Case Analysis (2023). Children's Case originating summons dated July 28, 2022 (respondent's application dated January 10, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2023/9/eng@2023-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.