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KadhiPartially AllowedNot stated in judgment

AS v NB (Divorce Cause E468 of 2024) [2025] KEKC 1 (KLR)

Kadhis' Court
13 January 2025
1,108 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Mombasa Kadhis' Court ruled children must stay in their Nairobi school mid-year, putting their education above a parent's wish to relocate them.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Chief Kadhi at Mombasa on a Notice of motion dated 24th December 2024 filed in a cause between a still-married couple who wed under Islamic Law in 2012 and have two boys aged 6 and 7. The applicant, who left the matrimonial home in Westlands, Nairobi and returned to her parents in Bamburi, Mombasa with the children, sought leave to transfer the minors from their Nairobi school to Mombasa, temporary actual custody, and orders compelling the respondent to facilitate the transfer and provide for the children. The respondent opposed, asserting he had allowed only a visit to her parents, that the children were being barred from attending school without a court order, and that a mid-year transfer would disrupt their education and burden him financially. The court held that the best interests of the children take precedence, anchored in Article 53 of the Constitution, the Children's Act Cap 141, the UN Convention on the Rights of the Child, and the Islamic Charter on Family, and that the right to education is fundamental. Finding the children out of school while their second term had begun, and that a mid-year transfer would be unreasonable and financially burdensome, the court declined the transfer and custody prayers. It held it could not compel the applicant to live in the matrimonial home but allowed her to arrange accommodation in Nairobi with the respondent's cooperation, and ordered the applicant to return and/or release the children to live in Nairobi within 72 hours. The prayers relating to the children's education failed.

Questions the Court framed

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

  1. 1.Whether pending hearing and determination of the cause the minors should be transferred from their school in Nairobi to a school in Mombasa
  2. 2.Whether the applicant should be granted temporary actual custody of the two minors
  3. 3.Whether the respondent should be ordered to facilitate the transfer and provide for the minors' education, shelter, food, clothing and medication

Key legal issues

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01

Best interests of the child as the primary consideration

Holding

The best interests of the children, not of the parents, take precedence in all actions concerning children

Reasoning

The court anchored this on Article 3(1) of the UN Convention on the Rights of the Child, Article 53 of the Constitution, section 4 of the Children's Act Cap 141, and Article 120 of the Islamic Charter on Family, all of which provide that the best interests of the child shall be a primary consideration. The children's continued education was central to this assessment.

p. 2
02

Right to education of the minors pending the marital dispute

Holding

The children should remain in their school in Nairobi; mid-year transfer would harm their education

Reasoning

The schools had re-opened and the children, who follow an IGCSE curriculum with the academic year ending in August, were out of school in Mombasa with the applicant. Transferring them mid-year with only days before reopening was unreasonable logistically and would burden the respondent financially. No issue of the children's safety was raised at the hearing.

p. 3
03

Whether the applicant can be compelled to return to the matrimonial home

Holding

The court cannot compel the applicant to live at the matrimonial home; she may live there if she feels safe or obtain accommodation in Nairobi in consultation with the respondent

Reasoning

Given the unresolved marital dispute between the still-married parties, the court declined to order the applicant back to the matrimonial home. Instead, she was given the option of living at the matrimonial home if she felt safe, or arranging an apartment in Nairobi with the respondent's cooperation, so the children could resume schooling.

p. 3

Legal principles established

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  • In all matters involving children, the best interests of the child take precedence over the interests of the parents
  • The right to education is a fundamental and constitutional right of children; any act that denies or negatively affects it is harmful and unconstitutional

Court orders

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  1. 1.The applicant is ordered to return and/or release the children to live in Nairobi to continue with their education within 72 hours from delivery of the ruling
  2. 2.The applicant may live at the matrimonial home if she feels safe, or otherwise obtain an apartment in Nairobi, in consultation with the respondent who has no objection to providing accommodation for her and the children, pending hearing and determination of the cause
  3. 3.The main prayers of the application relating to the children's education fail

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Children's Act, Cap 141 and Article 53 of the Constitution of Kenya (2010); Islamic Charter on Family

Relief refused

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Transfer of the minors from their school in Nairobi to a school in Mombasa

Moving the children mid-school-year would affect their education and impose financial burden; the logistics of a transfer within a short time were unreasonable

p. 2

Prayer for temporary actual custody of the two minors

The main prayers relating to the children's education failed; the court could not compel the applicant to live at the matrimonial home but ordered return of the children to Nairobi

p. 3

Costs

No costs order made in the judgment

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.

In all matters involving issues of children, the best interests of the children not of the parents take precedence.
p. 2best interests of the child
The right to education is a fundamental and constitutional right to children that forms a strong foundation for their future.
p. 2children's right to education
the applicant is hereby ordered to return and / or release the children to live in Nairobi to continue with their education in any case but within (72) hours from delivery of this ruling.
p. 3final orders
The main prayers of the application relating to the children’s education fails. Orders accordingly.
p. 3disposition

Issues in the judgment

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minor

The judgment refers to the respondent in the masculine pronoun where the applicant was meant, and the disposition is styled a ruling on a Notice of motion though labelled judgment

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, "AS v NB (Divorce Cause E468 of 2024) [2025] KEKC 1 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2025/1/eng@2025-01-13

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