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KadhiDismissedDivorce Cause (not stated in judgment)

FM v DT (Divorce Cause E004 of 2025) [2025] KEKC 21 (KLR)

Kadhi's Court
8 May 2025
Mohammed Khadhar IbrahimDADACHA A. IBRAHIM
1,234 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Garbatulla Kadhi's Court, delivered by Senior Resident Kadhi Dadacha A. Ibrahim on 8 May 2025, determines a preliminary objection by the Respondent (DT) challenging the Court's jurisdiction to determine custody (ḥaḍānah) and maintenance (nafāqah) of the parties' minor children arising in divorce proceedings between him and the Petitioner (FM), both Muslims married under Islamic law. The Respondent contended that jurisdiction over custody and maintenance lies exclusively with the Children's Court under the Children Act, rendering the Kadhi's Court incompetent. The court framed a single issue: whether, under Article 170(5) of the Constitution and section 5 of the Kadhis' Courts Act, custody and maintenance constitute questions of Muslim law relating to personal status, marriage or divorce. Answering affirmatively, the court held that custody and maintenance arise directly from the marital bond and are integral components of personal status in Islamic law, citing its own earlier decision in HSA v AAL (Isiolo, 2020) and High Court authorities including Amin Mohamed Hassan v Zahra Mohamed Abdulkadir, Najma Ali Ahmed v Swaleh Rubea, Abdirahman Mohamed Abdi & Another v Adan Yusuf, ZUDG v SJKUR and Fazleabbas Mohammed Chandoo v A.I. Hussein. The court reasoned that the Children Act (No. 29 of 2022) nowhere expressly repeals or restricts the Kadhi's competence on ancillary matters, and that forum-splitting would defeat the constitutional objective of a unified forum and offend Article 159(2)(b). A Kadhi exercising such jurisdiction remains bound by the best-interests standard in section 4(2) of the Children Act. The preliminary objection was dismissed with no order as to costs, and the cause was directed to proceed to full hearing on 5 June 2025, with the Respondent to file his defence and affidavits by 2 June 2025.

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 has jurisdiction—under Article 170(5) of the Constitution and section 5 of the Kadhis' Courts Act (Cap 11)—to hear and determine the custody and maintenance questions incidental to these divorce proceedings

Key legal issues

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01

Whether custody (ḥaḍānah) and maintenance (nafāqah) fall within the Kadhi's Court's jurisdiction under Article 170(5) and section 5 of the Kadhis' Courts Act

Holding

Yes - they are integral components of personal status in Islamic law, incidental to marriage and divorce, and cannot be severed from the marriage dispute.

Reasoning

The court held that custody and maintenance arise directly from the marital bond and its dissolution, making them integral to personal status in Islamic law. Classical fiqh from all four Sunni schools treats them as parts of family law. The Children Act creates Children's Courts but nowhere expressly repeals or restricts the Kadhi's competence on ancillary matters. Forum-splitting would defeat the constitutional objective of a unified forum and conflict with Article 159(2)(b). The Kadhi must nonetheless apply the Children Act's best-interests standard.

p. 2
02

Whether the Children Act (No. 29 of 2022) ousts the Kadhi's jurisdiction over children matters

Holding

No - the Act establishes Children's Courts but does not expressly repeal or restrict the Kadhi's competence on ancillary matters arising in a Muslim divorce.

Reasoning

The court reasoned that the Children Act was never intended to override Article 170(5) or the Kadhis' Courts Act. Magistrates, who are coordinate with Kadhis, regularly determine children matters, so denying Kadhis that jurisdiction would be an unjustifiable anomaly. A Kadhi exercising custody or maintenance jurisdiction remains bound to apply the best-interests standard and other safeguards in the Children Act, ensuring full protection of minors.

p. 3

Legal principles established

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  • Child custody and maintenance arising from a Muslim divorce constitute questions of Muslim law relating to personal status, marriage and divorce within the Kadhi's Court's jurisdiction under Article 170(5), where all parties are Muslim and submit to that jurisdiction
  • The Children Act (No. 29 of 2022) did not oust the Kadhi's jurisdiction over ancillary custody and maintenance matters in a Muslim divorce; a Kadhi exercising such jurisdiction remains bound by the best-interests standard

Court orders

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  1. 1.The Preliminary Objection dated 5 March 2025 is dismissed
  2. 2.The Kadhi's Court at Garbatulla affirms its jurisdiction to determine the parties' prayers on custody and maintenance of the minor children alongside the divorce cause
  3. 3.In exercising that jurisdiction the Court shall invoke the relevant provisions of Islamic jurisprudence to ensure outcomes consonant with Sharia and apply the guiding principles of the Children Act (No. 29 of 2022), especially the best interests of the child
  4. 4.The cause shall proceed to full hearing on 5th June 2025 with respect to divorce, custody, and maintenance
  5. 5.The Respondent shall file and serve his defence and any affidavits on or before 2nd June 2025
  6. 6.Each party shall bear its own costs

The bench

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

Mohammed Khadhar Ibrahim
majority

Wrote the judgment

Jurisdiction invoked
Article 170(5) of the Constitution and section 5 of the Kadhis' Courts 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 dated 5 March 2025 lacks merit and is hereby dismissed.
p. 3disposition - dismissal of preliminary objection on jurisdiction
The cause shall proceed to full hearing on 5th June 2025 with respect to divorce, custody, and maintenance.
p. 3final orders - directions for full hearing
Each party shall bear its own cost.
p. 3final orders - costs
issues touching on maintenance and custody fall into the category of personal status under Muslim law
p. 2quotation from Amin Mohamed Hassan v Zahra Mohamed Abdulkadir on personal status

Issues in the judgment

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minor

Directions in the disposition appear in scrambled order and are grammatically garbled in the judgment text

minor

Costs order printed with singular grammatical error

minor

Judgment references 'a few earlier High Court decisions' that expressed a contrary view on jurisdiction without identifying them

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, "FM v DT (Divorce Cause E004 of 2025) [2025] KEKC 21 (KLR)", Case Analysis (2025). Divorce Cause (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2025/21/eng@2025-05-08

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