Kadhi’s don’t have last word on custody, says High Court

The Kadhi’s Courts have no powers to handle cases touching on the custody, protection or maintenance of a child.

Most couples fighting for custody of children when going through divorce or separation have been forced to legally battle it out at the Children’s Court that had the jurisdiction.

For those who obtain orders from the Kadhi’s Courts, some of their partners have successfully challenged the decisions at the High Court by having them quashed.

Council of Imams and Preachers of Kenya Organising Secretary Sheikh Mohamed Khalifa said there is need for Muslim leaders to discuss the issue because children are fruits of a marriage.

“It shows Muslims who challenge the Kadhi’s decision in the High Court do not respect the religion. The Quran is clear on the rights of a child and this cannot be separated from marriage and property when it comes to a divorce,” he said.

Gap in Constitution

Former UDF Nominated MP Osman Hassan said this is a gap in the Constitution that needs to be addressed to have it in tandem with Islam.

“The law is not static and even developed countries keep changing their laws from time to time in a bid to cater for all,” he said.

Hundreds of spouses awarded custody of their children by the Kadhi’s courts have lost in the High Court.

For instance, a Kadhi in Mandera County vested the custody of a child to the mother and ordered a man to pay Sh4,000 monthly for the maintenance plus take care of the child’s education and medical expenses.

This was after issuing an order dissolving the couple’s marriage with effect from May 18, 2017 plus ordered the man to make a monthly payment of Sh6,000 for three menstrual periods.

Senior Resident Kadhi Habib Salim Vumbi also ordered the man to pay the woman identified as SMY her pending dowry comprising a three-year-old cow.

Aggrieved by the decision, the man identified in court documents as ABMM challenged the decision at the High Court in Garissa on grounds that the Kadhi erred in finding that he had jurisdiction to hear and determine questions of custody, maintenance, care and protection of children matters.

He also said the Kadhi erred in ordering him to pay for maintenance of the child.

It was submitted that the jurisdiction of the Kadhi’s Courts emanates from Article 170(5) of the Constitution, which provides that “The jurisdiction of a Kadhi’s Courts shall be limited to determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to jurisdiction of the Kadhi’s Courts”.

ABMM argued that as per the Constitution and the Kadhi’s Courts Act, the Kadhi’s jurisdiction does not extend to contractual relations between parties but deals with questions relating to personal status, marriage, divorce or inheritance in proceedings in which all parties profess the Muslim religion.

However, SMY did not file any response to the application and on June 20 this year, High Court Judge Justice Charles Kariuki said in his view it is clear that the drafters of the Constitution never intended the Kadhi’s Courts to handle matters relating to custody and maintenance of children.

“Even if we were to argue the Kadhi’s Courts had the jurisdiction, then the same has been vacated by one of the parties being the appellant refusing to submit to jurisdiction of the Kadhi in respect to issues of children on custody,” he said in his judgment.

The judge pointed out that the Children’s Act caters for all children irrespective of their religious affiliations or cultural background. It is this Act that established the Children’s Court, where matters touching on minors are dealt with.

Section 73 says the Chief Justice may, by way of notice in the gazette appoint a magistrate to preside over cases involving children in respect of any area of the country.

“The respondent (SMY) is at liberty to refer the dispute on custody and maintenance of the child before the Children’s Court,” Justice Kariuki said.

In another case, High Court Judge Roselyne Aburili said the task before the court is to interpret the law of the land, not in light of the tenets of the parties’ religion or religious affiliations but in keeping with legislative intent and the letter and spirit of the Constitution.

Judge Aburili said in her judgment delivered on January 25, 2018 that Kadhi’s Courts cannot claim unlimited jurisdiction, which is not granted to it by the Constitution or the statute.

Islamic Law

“The legislature in enacting the Children’s Act was alive to the importance of religious issues and that is why the Act is so comprehensive that it takes into cognisance religious persuasion and customs and cultures of the all children who are in contact or in conflict with the law. The Act also creates a National Institution-Council for Children’s Services and incorporates the top most organ of Kenya Muslims - Supkem,” she said.

She said this in a case in which a couple married in accordance with Sunni Islamic Law in 2007 were legally battling over the custody of their child.

The woman identified as TL is said to have left her matrimonial home to go live with her new found lover before the divorce process in her first marriage was completed, leaving her baby in her maternal grandfather’s house.

The minor’s father identified as MAA was forced to take her after discovering she was missing school.

In 2016, the man filed a case at the Kadhi’s Courts in Nairobi after the woman took the child away from him and got interim orders.

TL challenged the interim orders at the High Court under Judicial Review, saying the Kadhi’s Courts has no jurisdiction to handle matters touching on children.

But MAA told the High Court that the woman had left the minor with her elderly parents who had failed to offer her with the care she needed.

In an affidavit signed in October 2016, Kadhi AbdulJabar Hussein said the matter touched on divorce with incidence of custody of the minor and that it’s right to religious education and personal status was a matter within his jurisdiction.