High Court reaffirms Kadhi’s Courts’ jurisdiction in child custody and maintenance cases

The High Court has yet again affirmed that the Kadhi’s Court has the jurisdiction to determine cases involving child custody and maintenance.

The court, sitting in Voi, stressed that matters related to custody and maintenance are incidental to marriage and divorce under Islamic law and, therefore, fall under the jurisdiction of the Kadhi’s Courts.

In its judgment, the court said leaving such matters involving Muslim litigants to the Children’s Courts or other courts would not only fragment the justice system but also go contrary to the robust provisions of the Constitution, which guarantee access to justice.

“Custody and maintenance are integral to personal status and cannot be artificially severed from marriage and divorce,” the judge ruled.

The ruling clarifies the Kadhi’s Courts’ jurisdiction to determine matters related to child custody and maintenance.

The judge’s decision arose from a case where a woman, going by the initials FAA, went to the High Court to challenge a Kadhi’s Court ruling that granted joint custody of six children she had with her former husband, named in court papers as BAM, after their divorce.

In her application, she argued that under Article 170 (5) of the Constitution and the Kadhi’s Courts Act, the court’s jurisdiction is limited to matters of Muslim personal law related to marriage, divorce, and inheritance, and does not extend to custody and maintenance. “By determining custody and maintenance, the Kadhi’s Court usurped the exclusive jurisdiction of the Children’s Court as provided under the Children Act,” she said.

On his part, BAM opposed the application, arguing that the Kadhi’s Court acted within its jurisdiction, as matters regarding custody and maintenance were incidental to marriage under Islamic law.

Even though several judges have made rulings affirming the jurisdiction of the Kadhi’s Courts, dissatisfied litigants continue to head to the High Court to challenge the courts’ determinations in matters related to child custody and maintenance.

In a case involving a civil appeal (E009 of 2024) in the High Court at Meru, where the appellant (named as MAA) challenged the Kadhi’s jurisdiction over maintenance and custody matters under Islamic law, the judge held that “custody and maintenance of children are incidental to marriage and divorce and therefore fall squarely within the jurisdiction of the Kadhi’s Court.”

In the case of Najma Ali Ahmed vs Swaleh Rubea (2010), High Court Judge Omondi J ruled as follows: “It must be borne in mind that the child’s maintenance is incidental to the marriage, and thus this falls under the jurisdiction of the Kadhi’s Court, which addresses matters of personal law for members of the Muslim faith. Indeed, the readings of the Qur’an are so specific even as regards provision by fathers for their sons.”

This issue was further exhaustively handled by the High Court in ZUDG v SJKUR (2020), where the court held that the Kadhi’s Court has jurisdiction over children’s matters. “The Children’s Act did not oust the jurisdiction of the Kadhi or other subordinate courts in dealing with issues concerning children.

Indeed, lately all magistrates are gazetted to handle children’s matters, and in this court’s considered view, by implication, Kadhis too, being in the category of magistrates, should and ought to hear such matters, more so where the same are connected and incidental to the cause before the Kadhi, so long as the said court applies the principles laid down by the Children’s Act and, in particular, applies the best interests of the child principle as enunciated by the said Act,” said High Court Judge Abida Ali.