RNM alias M v MSR (Divorce Cause KCDC/E008 of 2024) [2025] KEKC 3 (KLR)
The bottom line
#Kenya's Kadhi's Court confirmed it can decide custody and maintenance in divorce cases, granting a mother physical custody while protecting the father's access.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Kadhi's Court over children matters
The Kadhi's Court, a constitutional establishment, has jurisdiction to determine matters relating to children connected to disputes properly before it; jurisdiction over children matters is not exclusive to the Children's Court
The Court acknowledged conflicting High Court decisions. Relying on the Court of Appeal in TSJ v SHSR holding there is no stipulation that the Children's Court's jurisdiction is exclusive, and on N v N under the repealed Guardianship of Infants Act, the Court reasoned that if non-statutory bodies can entertain custody matters, the constitutionally established Kadhi's Court must a fortiori have jurisdiction. It held itself bound by the Court of Appeal position.
Custody of the minor
Joint legal custody to both parents; actual/physical custody to the petitioner, subject to the minor's rights being protected, consistent with the authority from the Prophet (P.B.U.H.) that a divorced mother has more right to the child as long as she does not remarry
The parties implicitly agreed actual custody should remain with the petitioner, but the Court insisted on being satisfied that the minor's rights are protected. It applied the best-interest principle as understood in Islamic Law and the hadith in Sunan Abi Daawuud 2276, and stressed the child's right under Article 53(1)(e) of the Constitution to parental care from both mother and father.
Access by the respondent to the minor
The respondent was granted unrestricted access; the petitioner's conduct in barring communication violated the child's right and the father's right
The petitioner did not dispute that she had blocked the respondent's calls, citing indecent language toward her. The Court held that parental disputes do not justify violating the child's rights, citing Article 53(1)(e) of the Constitution, Article 9(3) of the Convention on the Rights of the Child, and the Supreme Court's observations in MAK v RMAA on the benefits of both parents being involved in a child's life.
Maintenance of the minor
The respondent, as father, bears the primary duty of maintenance and was ordered to pay not less than USD 300 monthly, plus medical and educational expenses
The Court relied on Qur'aan 2:233 placing the duty of provision on fathers and the hadith of Hindu bint Utbah (Musnadu ddaarimy 2281) directing fair provision. Given that contributions during the marriage ranged between USD 250 and 500, the Court fixed a floor of USD 300, applying the Qur'aanic principle in 65:7 that a man of means spends according to his means.
Legal principles established
#- Jurisdiction is foundational; a court without jurisdiction must down tools
- The Kadhi's Court has jurisdiction over children's matters incidental to disputes within its jurisdiction; jurisdiction over children matters is not exclusive to the Children's Court
- The best interest of the child is the governing consideration in custody regardless of the status of the parent
- Inter-parental disputes do not extinguish a parent's rights and duties toward a child; barring a parent from access violates the rights of both the parent and the child
Court orders
#- 1.The petitioner be and is hereby divorced from the respondent
- 2.The petitioner and respondent be and are hereby granted joint legal custody of the minor
- 3.The petitioner be and is hereby granted actual/physical custody of the minor
- 4.The respondent be and is hereby granted unrestricted access to the minor
- 5.The respondent to provide a monthly US dollar not less than 300 towards maintenance of the minor
- 6.The respondent to cater for minor's medical expenses when needed
- 7.The respondent to cater for educational needs of the minor
- 8.No order as to costs
- Jurisdiction invoked
- Article 170(5) of the Constitution (jurisdiction of Kadhi's Court); the Court considered and affirmed its jurisdiction over children matters connected to marriage disputes, relying on the Court of Appeal in TSJ v SHSR
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "RNM alias M v MSR (Divorce Cause KCDC/E008 of 2024) [2025] KEKC 3 (KLR)", Case Analysis (2025). Divorce Cause No. E007 of 2024 (Nakuru Kadhi's Court). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2025/3/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.