Father Denied Custody Of His Children After Judge Overrules Kadhis’ Court

by Lawyer Alex
Justice Aggrey Muchelule

A Muslim father has been denied custody of his children after a judge ruled that the Kadhis’ Court — which gave him partial responsibility, has no jurisdiction in children’s cases.

In a landmark ruling, High Court judge Aggrey Muchelule said the Kadhis’ Court has limited jurisdiction that does not include children’s matters.

“A dispute relating to children and their rights is not one of the disputes Kadhis’ Courts can hear and determine,” the judge ruled.

The father, identified in court papers as I.K., had filed a case in the Kadhis’ Court against his estranged wife identified as R.M.S, in 2018. The two are Muslims.

He said that on March 18, 2018, the mother left the matrimonial home with their children without his knowledge or permission. She also removed the children from school, he said. 

The man then sought full custody of the children and their equal maintenance on a 50-50 basis at the Kadhis’ Courts.

On September 3, 2018, the Kadhis’ Court granted physical custody of the children to the mother and legal custody to the father. It also granted access to the father and his parents. 

Further, the court ordered that the man provides school fees and related expenses, food, utility bills and medical expenses, and the woman provides shelter and clothing.

The father faulted the Kadhi for allegedly erring in law for holding that he had not proved his case to the required threshold.

“The Senior Resident Kadhi erred in law and in fact when he gave final orders in an interim application bestowing custody of the children to the Respondent (mother),” the court papers read.

He filed an appeal before judge Muchelule and suggested in his petition that the lower court had no jurisdiction to hear the case.

Muchelule ruled that indeed the Kadhis’ Court lacked jurisdiction to hear cases pertaining to children.

“The Children’s Act was enacted to deal with all matters relating to children. The Act applies to all children in Kenya regardless of their religious background, or the religious background of their parents,” he ruled.

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