NHS v MAS (Divorce Cause E098 of 2025) [2026] KEKC 3 (KLR)

Petitioner’s Case 3. The Petitioner, PW1 Noorto, being duly sworn on the Holy Qur’an, testified that she is an adult female of sound mind and resident of [Particulars Withheld] camp within Dadaab sub county, Garissa county. She stated that she was lawfully married to the Respondent in June 2013 under Islamic law, with an agreed dowry of 500 USD, which she avers remains unpaid to date. 4. The Petitioner further testified that the said marriage was blessed with seven children, namely: 1. A 2. A 3. F 4. M 5. A 6. M 7. M 5. She averred that despite the existence of this marriage and the blessings of children, the Respondent has consistently failed to discharge his marital duties, neglected her maintenance, and abandoned the family responsibilities, which ultimately compelled her to seek the intervention of this Honorable Court for redress. 6. The Petitioner avers that the Respondent, her lawful husband, has completely failed in his fundamental duty of providing financial maintenance for the family. She states that the husband has neglected his obligations to supply basic needs such as food, clothing, educational support, and medical care for her and their children. The Petitioner contends that under Islamic law, the duty to maintain the family lies squarely upon the husband, and his persistent neglect amounts to a serious breach of marital responsibility. 7. The Petitioner further claims that the Respondent does not show her any respect or regard as his wife. She asserts that he consistently demeans and despises her, treating her as insignificant in his eyes. Despite being the mother of his children, the Respondent allegedly fails to recognize her dignity and contribution to the family. She states that she is entitled to love, respect, and companionship in the marital relationship, but has been subjected instead to disrespect, emotional neglect, and humiliation. 8. The Petitioner further claims that she and the Respondent have been living separately for approximately 11 months. She averred that during this entire period of separation, the Respondent has completely neglected his marital and parental duties. He has neither visited nor communicated with his children, and has failed to provide any form of financial maintenance or material support for their basic needs, including food, clothing, education, and medical care. The Petitioner contends that such prolonged neglect and abandonment constitute a grave breach of the Respondent’s responsibilities as a husband and father under both Islamic law and the law of Kenya. 9. The Petitioner alleges that the Respondent is heavily involved in drug abuse. She claims that he consumes a variety of harmful substances, including bhang, alcohol, and miraa (khat). As a result, he has squandered his time, financial resources, and energy on drug consumption. His addiction, she claims, has caused him to completely neglect his family, responsibilities, and duties as a husband and father. https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/3/eng@2026-06-02 2

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10. The petitioner states that her husband insulted her and her entire family. She avers that the respondent persistently used abusive and degrading language against her, thereby subjecting her to emotional distress and humiliation. She further states that such conduct undermined her dignity and damaged the relationship between the two families, rendering peaceful coexistence impossible. 11. The petitioner concluded by stating that their marriage lacks love, afiection, mutual understanding, and peace. She stated that the marriage has irretrievably broken down and cannot be salvaged. Petitioner’s Witnesses’ Testimonies 12. PW2, Hashim, being duly sworn on the Holy Qur’an, testified that he is the father of the Petitioner. He stated that ever since the Petitioner was married to the Respondent, she has consistently complained of neglect and mistreatment. PW2 averred that the Respondent is an irresponsible husband who has persistently failed to provide for his family's maintenance and basic necessities, including food, clothing, and medical care for both the Petitioner and their children. He emphasized that the Respondent’s conduct has caused immense hardship to the Petitioner, forcing her to rely on her parents for support and assistance. 13. PW2 further testified that, on one occasion, the Respondent proposed that the children be divided between himself and the Petitioner. He further stated that the Respondent promised to divorce the Petitioner but later changed his mind and refused to fulfill that promise. 14. PW2 additionally informed the Court that elders from both families had convened several meetings in an efiort to mediate and reconcile the parties. However, all amicable solutions and proposals advanced by the elders were rejected by the Respondent, who remained unwilling to change his behavior or assume responsibility for his family. PW2 concluded that, in his opinion, the Respondent’s conduct has rendered the marriage untenable. 15. PW3, being duly sworn on the Holy Qur’an, testified that she is the mother of the Petitioner. She stated that the Respondent is her nephew and that he is irresponsible and has completely failed to provide for his family's basic maintenance. PW3 testified that she has been solely supporting and maintaining the Respondent’s children since their birth up to the present time. She further stated that despite her efiorts and assistance, the Respondent has shown her no respect as his aunt and as the person providing for his children's maintenance. PW3 finally testified that the marriage between the parties has irretrievably broken down and cannot be salvaged; therefore, it ought to be dissolved. Respondent’s Case 16. RW1, M, the Respondent, being duly sworn on the Holy Qur’an, testified that all the allegations made by the Petitioner are false, malicious, and unfounded. He stated that the Petitioner left the matrimonial home with their children without his permission and returned to her parents’ home. He further testified that the Petitioner subsequently denied him access to, visitation of, and communication with his children. The Respondent also claimed that, on one occasion, he was assaulted by his brother-inlaw while attempting to visit his children. 17. The Respondent further testified that elders from both families had made several attempts to reconcile the parties and resolve their disputes amicably. However, according to him, all the proposed solutions were rejected by the Petitioner and her family. He therefore requested the Court to order the Petitioner to return to the matrimonial home. Respondent’s Witnesses’ Testimonies 18. RW2, Aden Sharifi, being duly sworn on the Holy Qur’an, testified that he is the brother of the Respondent. He stated that the Petitioner’s mother approached him and informed him that, being the https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/3/eng@2026-06-02 3

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eldest brother of the Respondent, he should direct the Respondent to divorce his wife since the couple was no longer living harmoniously. RW2 testified that he informed the Petitioner’s mother that the time for divorce had not yet arrived and that he would first speak with the Respondent to ascertain the circumstances surrounding the marital dispute. He further testified that, upon speaking with the Respondent, the latter informed him that he had been providing for his family but that his mother-inlaw was preventing him from accessing his wife. 19. RW2 further stated that when the Petitioner complained of lack of maintenance, the Respondent’s brother, who resides abroad, ofiered to provide the Petitioner with USD 200 per month for her maintenance. However, according to RW2, the Petitioner declined to accept the said amount. 20. RW3, Mursal Mohamed, being duly sworn on the Holy Qur’an, testified that he concurs with and afirms the testimony of RW2 as true and correct to the best of his knowledge and belief. RW3 further testified that elders from both families had intervened and attempted to mediate the dispute between the parties. However, all the amicable solutions proposed by the elders were rejected by the Petitioner and her family. Petitioner’s Final Submissions 21. In her final submissions, the Petitioner contended that the Respondent has consistently failed to provide for the basic needs and maintenance of their children. She further submitted that the Respondent subjected her to physical assault, treated her with disrespect, and engaged in the abuse of narcotic drugs, thereby making the continuation of the marriage intolerable and unsustainable. 22. Consequently, the Petitioner prayed for the following reliefs: A. An order for the dissolution of the marriage in accordance with Islamic law; B. An order directing the Respondent to pay the agreed dowry (mahr) in full; C. An order granting her legal custody of the minor children; and D. An order compelling the Respondent to provide adequate maintenance for the minor children. Court Analysis And Determination 23. The jurisdiction of the Kadhi’s Court is established under Article 170(5) of the Constitution of Kenya and the Kadhis’ Courts Act. This Court is specifically mandated to determine issues governed by Islamic law in matters concerning personal status, marriage, divorce, or inheritance, provided that all parties involved profess the Islamic faith and voluntarily submit to the jurisdiction of the Kadhi’s Court. 24. In the present case, both the petitioner and the respondent are practicing Muslims and have submitted themselves voluntarily to this Court's jurisdiction. As such, the Court is properly clothed with the legal authority and competence to hear and determine this matter in accordance with Islamic principles and Kenyan law. 25. Having carefully considered the pleadings, oral testimonies, and all evidence adduced by both parties and their witnesses, the Court identifies the following key issues for determinations: A. Whether the Petitioner is entitled to the dissolution of the marriage. B. Whether the Petitioner is entitled to the agreed dowry of 500 USD. C. Whether the Petitioner is entitled to the custody of the minor children. https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/3/eng@2026-06-02 4

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D. Whether the Petitioner is entitled to the maintenance of the child. A. On the Issue of Dissolution of the Marriage 26. The objectives of marriage in Islam are grounded in achieving love (mawadda), mercy (rahma), peace (sakinah), and mutual understanding between spouses. The family, being the nucleus of society, is expected to function on the foundation of mutual respect, compassion, and responsibility. The husband, as the head of the household, has the duty to provide leadership and ensure that these objectives are realized. However, Islam permits divorce (talaq) when the foundational goals of marriage are not met, or where harm, injustice, or emotional or physical sufiering is infiicted upon either spouse. 27. Islamic law prohibits denial of conjugal rights. If such denial persists for four consecutive months, a wife has the right to petition for dissolution of the marriage. Similarly, failure by a husband to provide for his wife’s basic maintenance—including food, shelter, and clothing—is inconsistent with retaining her in kindness. The Qur’an instructs: "And do not take them back to hurt them. And whoever does that has wronged himself."Surah Al-Baqarah, verse 231 The Qur’an further states: “ Divorce is twice. Then, either retain [her] in an acceptable manner or release [her] with good treatment." Surah Al-Baqarah, verse 229 28. This verse underscores the importance of fair treatment and dignified separation. Retaining a wife while failing to maintain her violates the principles of fairness and kindness enjoined by Islam. 29. Islamic jurisprudence holds that failure to provide for a wife’s maintenance constitutes suficient grounds for dissolving the marriage. The prominent scholar Abu Zanad once asked Sa’id Ibn AlMusayyib for a ruling regarding a husband who had no means to support his wife. Sa’id afirmed that separation is permitted, adding that this is the Sunnah—a Prophetic tradition. 30. Furthermore, jurists agree that lack of financial support is often more injurious to a woman than lack of conjugal relations. While the latter may justify separation due to harm, the former presents an even stronger basis. There is juristic consensus (ijma’) that marriage may be dissolved in such cases to protect the wife from hardship and sufiering. 31. During the Caliphate of Sayyiduna Umar (RA), he issued instructions to his governors concerning men who were absent from their wives. He directed that such men must either return and support their wives, or divorce them—failing which, the wives were entitled to seek separation and claim past maintenance. Importantly, such a dissolution is revocable if the husband later proves his ability to provide during the waiting period ('iddah). 32. In line with the same principle, Article 4 of the Egyptian Personal Status Law of 1920 (Cap 25) adopted this dominant view. It grants a wife the right to seek dissolution of the marriage due to nonmaintenance, whether or not the husband’s inability is deliberate or beyond his control. If the husband refuses to pronounce talaq, the Kadhi has the authority to issue a judicial dissolution (faskh). 33. Both the Qur’an and Hadith clearly state that a husband is obligated to maintain his wife. This includes provision of food, clothing, shelter, and other essentials according to his means. It is not only a legal requirement but a religious duty, and failure to fulfil it constitutes a sin for which he is accountable before Allah. 34. The Constitution of Kenya, under Article 36, provides: https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/3/eng@2026-06-02 5

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a. Every person has the right to freedom of association, including the right to form, join, or participate in the activities of any association. b. No person shall be compelled to join any association. 35. Based on the above, marriage is regarded as an association between consenting parties. If the petitioner no longer wishes to remain in that marital bond, she cannot be forced—either by the respondent, her parents, or the Court—to return to a union that has proven unsuitable. However, the principles of Islam require such disassociations to occur with peace and mutual respect. 36. The four madhāhib—Hanafi, Maliki, Shafi’i, and Hanbali—are unanimous in the view that a woman cannot be forced to remain in a marriage against her will under the following conditions: A. The husband is abusive. B. The husband neglects her rights, including maintenance. C. The wife has valid grounds for seeking separation. All these schools recognize emotional, physical, and psychological harm (darar) as valid grounds for dissolution of marriage. 37. Therefore, if a woman approaches an Islamic court and proves emotional or physical harm, or lack of love, peace, or afiection, the court has the power to grant her separation. Forcing her to remain in such a marriage would be contrary to the values of justice (adl) and mercy (rahmah), both of which are central to Islamic law. 38. Furthermore, Islamic law strongly upholds a woman's dignity, mental well-being, and physical safety. If a woman no longer desires her husband or feels hurt and unloved, she cannot be forced to live with him. Her right to dignity and peace is paramount in the eyes of Shari’ah. B. On the issue of dowry: 39. In Islamic law, dowry (mahr) agreed upon at the time of marriage is a legal obligation upon the husband and must be paid unless the wife voluntarily forgives it. The petitioner stated that her marriage was contracted with a dowry of 500 USD which remain unpaid, and she insisting its payment. Allah says, "And give to the women whom you marry their dowry, obligatory bridal-money with a good heart. But if they of their own good pleasure remit any part of it to you, take it, and enjoy it without fear of any harm" (Qur'an 4:4). Allah says, so with those of whom you have enjoyed sexual relations, give them their Mahr[ obligatory bridal money] as prescribed; but if after a mahr is prescribed, you agree mutually[ to give more], there is no sin on you. Surely, Allah is Ever all -Knowing, All- Wise. Quran 4:24 C. On the issue of children custody: 40. Ibnu qudama says “if the husband and wife are legally separated and they have a child his/her mother has the right to have custody, if she fulfils the condition necessary for the person to have custody over a child. This is the view maintained by Imam Malik and all scholars and it has not come to my knowledge that there is a contrary opinion” v2 pg 490] https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/3/eng@2026-06-02 6

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D. On the issue of children maintenance: Here are evidences from the Holy Quran and Prophet Muhammad’s (#) Hadith that establish 41.that a Muslim husband is responsible for providing for his wife: A. “upon the father is their provision and their clothing according to what is acceptable” Al Baqara 233. B. “Men are the protectors and maintainers of women because Allah has made one of them excel over the other, and because they spend (to support them) from their wealth.” (Surah An-Nisa, 4:34) This verse clearly establishes that men are responsible for the financial maintenance of their wives. C. "You are responsible for providing for them and clothing them in a reasonable manner." (Sahih Muslim, Hadith No. 1218) This Hadith directly establishes a husband’s duty to provide for his wife’s needs. Court’sConclusion: 42. After a careful and exhaustive analysis of the evidence adduced by both parties and their respective witnesses, the Court is satisfied that the marriage has irretrievably broken down. There is a clear absence of love, tranquility, and mutual understanding between the parties. The Court finds that the Petitioner has established valid legal and religious grounds for seeking the reliefs prayed for, and accordingly, all her prayers are hereby granted. Orders Of The Court 5. Accordingly, the Court hereby issues the following orders: A. The marriage between the Petitioner and the Respondent is hereby dissolved with efiect from the 2nd June, 2026. B. The Respondent is ordered to pay the Petitioner a dowry of 500 USD within three months. C. The Petitioner is granted custody of the minor child. D. The Respondent is ordered to pay minor children maintenance of Kshs. 15,000 per month. E. That the Respondent’s entire claim and all the prayers sought therein are hereby dismissed. There shall be no order as to costs. DELIVERED, READ, AND SIGNED AT DADAAB KADHIS’ COURT ON THIS 2ND JUNE 2026. HON. IBRAHIM MOHAMED MAHAMUD PRINCIPAL KADHI DADAAB LAW COURTS In the presence of: Moulid – Court Assistant Petitioner – Present Respondent – Present https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/3/eng@2026-06-02 7

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SIGNED BY/FOR: THE JUDICIARY OF KENYA HON. IBRAHIM MOHAMED MAHAMUD (PK) Dadaab Kadhi Court https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/3/eng@2026-06-02 8

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