Corporate Case

On 20^th June, 2019 the High Court declared that Kadhis Courts have no jurisdiction to hear and determine cases involving custody and maintenance of children. This was a judgment of the High Court sitting in Garissa before Justice Charles Kariuki. The genesis of the judgment was an appeal by the appellant from the decision of the Kadhi’s Court sitting in Mandera where after hearing evidence on both sides the Hon. Kadhi on 8^th May, 2017, delivered judgment issuing the following orders among others:

1. The custody of the child is vested to the mother. However, the petitioner to have reasonable access to the child;

1. The petitioner (appellant herein) to make a monthly payment of Kshs. 4,000/= for the maintenance of the child. The petitioner is also obliged to take care of education and medication of the child.

Aggrieved by the decision of the Hon. Kadhi, the appellant preferred an appeal which was lodged at the High Court in Garissa. The appeal was on the following grounds, among others:

1. The learned Senior Resident Kadhi erred in law and in fact in finding that the Kadhi Court has jurisdiction to hear and determine questions of custody, maintenance, care and protection of children matters;

1. That the learned Senior Resident Kadhi erred in law and in fact in finding in ordering that the Respondent is entitled to monthly payment of Kshs. 4,000/= for maintenance of the child.

The appellant asked the court to declare that the Kadhi’s Court did not have jurisdiction to hear and determine questions of custody, maintenance, care and protection of children matters. It was the appellant’s contention that the Kadhi’s Court erred in making orders as to custody and maintenance of the child arguing that it did not have jurisdiction to do so as the same is the preserve of the Children’s Court. To buttress their argument, the appellant submitted that the jurisdiction of the Kadhi Court emanates from Article 170 (5) of the Constitution which provides;

“The jurisdiction of a Kadhis Court shall be limited to the 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 the jurisdiction of the Kadhis courts.”

In reaching its final determination, the High Court made its findings on the jurisdiction of Children’s Courts, where it considered the enabling provisions of the Children’s Act relating to the custody and maintenance of children. The learned Judge was of the considered view that the constitutional provisions on the Kadhis Courts are couched in mandatory terms that set the limit on the areas upon which a Kadhi Court would have jurisdiction.  The Judge went ahead to conclude that it was clear that the drafters of the law never intended the Kadhi’s Court to handle matters relating to custody and maintenance of the children and nothing prevented them from expressively doing so.

The High Court went ahead and pronounced itself that the Children’s Act, 2001 relates to all children irrespective of their religious affiliations and or cultural background and does not distinguish between a child of Muslim parents from any other child for purposes of protection under the law-custody, guardianship and maintenance.

With regards to the jurisdiction of the Kadhi’s Court, the learned Judge gave a parting shot that even if the Kadhi’s Court had jurisdiction, for as long as the appellant did not submit to the jurisdiction of the court as stipulated under Article 170 (5) of the Constitution, the court had no power to compel him to appear before that court; and further that the party had the option of heading to the Children’s Court which is vested with the jurisdiction to handle children matters.

The appeal by the appellant was thus allowed on the aspects of the custody and maintenance of the child.

The case citation is Civil Appeal No. 7 of 2017: ABMM v SMY & another [2019] eKLR