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Kadhis can’t adjudicate child custody cases, High Court rules

Friday July 5 2019

Nairobi High Court

The High Court has ruled that Kadhis lack jurisdiction to hear and determine cases relating to child custody and upkeep. PHOTO | FILE | NATION MEDIA GROUP 

PHILIP MUYANGA
By PHILIP MUYANGA
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Kadhis do not have the jurisdiction to hear and determine issues relating to custody and upkeep of children, the High Court ruled Thursday,

Justice Charles Kariuki, sitting at the High Court in Garissa, further said, in his view, drafters of the law never intended Kadhis’ Courts to handle matters relating to custody and maintenance of children.

CHILDREN ACT

“The Children Act 2001 relates to all children irrespective of their religious affiliations or cultural background,” said Justice Kariuki.

Justice Kariuki added that the law does not distinguish between a child of Muslim parents from any other child for purposes of protection under the law-custody, guardianship and maintenance.

The decision followed an appeal by ABMM against a decision of a Kadhi’s court where he was ordered to make a monthly payment of Sh4,000 for child’s maintenance and also required to take care of education and medication of the child.

In his appeal, ABMM argued that the senior resident Kadhi erred in law in finding that the Kadhis' Courts have jurisdiction to hear and determine questions of custody, maintenance, care and protection of children matters.

ABMM argued that 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 the parties profess the Muslim faith.

Justice Kariuki noted that section 30 of the Children Act 2001 establishes the National Council for Children’s Services and its composition under section 31 includes a representative of the Supreme Council of Kenya Muslim.

“This leads to a conclusion that the Children Act 2001 relates to all children irrespective of their religious affiliations and or cultural background,” said Justice Kariuki.

He further noted that even if Kadhis' Courts had jurisdiction, for as long as ABMM does not submit to the jurisdiction of the court as stipulated in Article 170 (5) of the Constitution and section 5 of the Kadhis' Courts Act, the court has no power to compel him to appear before it.

CHILDREN'S COURT

“The party has the option of heading to the Children’s Court which is vested with jurisdiction to handle children matters,” said Justice Kariuki.

The court noted that ABMM, in his submission, never challenged other aspects of the Kadhi’s decision relating to his marriage being dissolved and the only aspect affected by the appeal relates to custody and maintenance of the child.

Justice Kariuki allowed the appeal on the aspect of the custody and maintenance of the child but it failed on challenge on divorce and dowry payment.

The court ruled that the respondent is at liberty to refer the dispute on custody and maintenance of the child before a Children’s Court.