A three-judge bench on Monday declared the inclusion of Kadhi courts in current Constitution illegal and discriminatory.
The judges, sitting as a constitutional court, said the decision to include the Kadhi courts in the country's ultimate law favoured one religion over others.
However, the judges reserved their decision on whether the provision should be included in the Proposed Constitution, which will be subjected to a referendum on August 4.
The bench included Justice Joseph Nyamu, Justice Mathew Anyara Emukule and Justice Roselyne Wendoh.
They also declared that public funds should not be used to run the courts as this would amount to "separate development of one religion and religious practice" contrary to the principle of separation of state and religion.
In a 114 page ruling, the judges held that the enactment and application of Kadhi’s court to areas beyond the ten mile coastal strip specified during their establishment in the colonial times is unconstitutional.
They further declared that section 66 of the constitution which introduced the Kadhi’s court infringes on the constitutional rights of a group of 26 religious leaders who went to court to challenge the inclusion of the Islamic courts.
The Kadhi courts is one of the issues that have been raised as contentious by a group of political and religious leaders who have come out against Kenya's Proposed Constitution.
They are meant to apply to Muslims who choose it for application of family law such as inheritance, marriage, divorce and personal status.