REPUBLIC OF KENYA IN THE KADHI'S COURT AT NAIROBI

CIVIL CASE NO. 45 OF 2015

N R A ..................................................PLAINTIFF

-VERSUS-

A (A) M................................................DEFENDANT

R U L I N G

This ruling is the upshot of the notice of preliminary objection dated 20th April 2015 raised against plaint dated 14th April 2015.

The preliminary objection has one main ground; that this court lacks the jurisdiction to hear and determine the issues raised in the application and which issues touch on the rights, interest and welfare of the minor , a one I A.

In arriving at this conclusion the defendant counsel contended that the jurisdiction of the Kadhi's court is drawn from Article 170(5) of the Constitution which unequivocally states the jurisdiction of this court as follows:-

The jurisdiction of a Kadhi's 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 parties profess the Muslim religion and submit to the jurisdiction of the Kadhi's Court.

The jurisdiction of the Kadhi's Court is also drawn from Section 5 of the Kadhis' Courts Act, Cap 11 Laws of Kenya, as follows:-

A Kadhi's court shall have and exercise the following jurisdiction, namely the determination of question of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings which all parties profess the Muslim religion; but nothing in this section shall limit the jurisdiction of the High Court or of any subordinate court in any proceedings that come before it.

She further submitted that the matter pertaining to 'custody and /or maintenance of children' are excluded from the aforesaid provisions of the law and that the said exclusion is a clear indication that the jurisdiction of the Kadhi's court was never meant to extend to such matters. No doubt, the thinking was that the Children Act 2001 , provided sufficient and exhaustive legislative cover for the Children's matters in Kenya.

In support of the above, the defendant counsel relied in HMM -VS KJD HCCA NO. 15 OF 2013(MOMBASA) where the Hon. Judge stated;

"I am of the opinion that the Children Act grants exclusive jurisdiction over all Children matters including custody and or/ maintenance only to judicial officers who are gazette under the said Act."

This assertion is also held in SMH - VS - SAA Kisumu HC MISC. 125 OF 2013. Learned Judge stated that;

" My understanding is that the Kadhi's Court is properly seized of the divorce matter, but may not deal with the issues of custody and maintenance of the children. These issues are not among those in respect of which the constitution and the Act have donated jurisdiction to the kadhi's court . These issues can only properly be dealt with by a Children's Court under the Children Act No. 8 of 2001"

Similarly in the case of GSA - VS- ASA HCCA NO. 53 OF 2013 Hon. Musyoka J held that;

"From the wording of Article 170(5) of the Constitution . it would appear that the Constitution has not granted jurisdiction to the Kadhi's Court over matters touching on custody and maintenance orders over Children".

From the foregoing, the defendant submitted that the Judges of the High Court all agree on the issue of jurisdiction , that it is only Children's Court acting under the provisions of the Children Act no. 8 of 2001 and asked the court to uphold his preliminary objection with cost to the respondent.

The  plaintiff  counsel  opposed  the   Preliminary objection  vide plaintiff submission dated 20th April 2015.

In  arriving at  this  conclusion  the plaintiff counsel  contended that the jurisdiction of the  Kadhi's  court  is drawn from Article 170(5)  of the Constitution  which  unequivocally  states  the jurisdiction  of this court as follows:- 

The jurisdiction of a Kadhi's 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 parties profess the Muslim religion and submit to the jurisdiction of the Kadhi's Court.

He further submitted that it is not in dispute that both the parties are Muslim and they did married under Islamic law. As a resuilt , the child whom they were blessed with and the subject matter of these proceedings is himself a muslim by faith.

The plaintiff counsel further stated that the issue for determination, which relate to the minor, is a personal status which this court has a jurisdiction to hear and determine is donated by the Constitution at Article 170(5). He asked the court to dismiss the preliminary objection raised by the defendant with orders as to costs.

It is settled law that jurisdiction is the life blood of any adjudication because a court or tribunal without jurisdiction is like an animal without blood , which means it is dead.

A decision by a court or tribunal without requisite jurisdiction is a nullity - dead- and of no legal effect whatsoever. That is why an issue of jurisdiction is crucial and fundamental in adjudication and has to be dealt with first and foremost without it a court has no power to make one more step. (see Owner of the Motor Vehicle Vessel "Lilian V Caltex Oil (Kenya) 1989 KLR 1).That explains why jurisdiction can be raised at anytime.

Jurisdiction on broad perception encompasses legal capacity, power or authority of a court. Competence of a court is the handmaid of jurisdiction of a court. A court must have both jurisdiction and competence to be properly seized of a cause or matter.

A Court is competent to entertain a case

a)  When the subject matter of the case is within the court's jurisdiction.

b) When it is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another.

c) The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu and Ors V. Nkemdilim (1962) 2NSCC 374.

When dealing with the issue of jurisdiction or lack of it the courts are guided by the following principles which are:-

I. Jurisdiction is a matter of substantive law no litigant can confer jurisdiction on the court where the Constitution or Statute or any provision of the common law says that the court does not have jurisdiction.

II. Jurisdiction cannot be assumed in the interest of justice.

III. Nothing shall be intended to be outside the jurisdiction of the superior court but that which specifically appears to be so and on contrary nothing shall be intended to be within the jurisdiction of an inferior court but that which is expressly alleged.

IV. Although courts have great powers yet their powers are not unlimited . Their jurisdiction is confined , limited and circumscribed by the statute creating it.

V. The court is not hungry after jurisdiction.

VI. Judges have a duty to expound the jurisdiction of the court and not expand it as by so doing the court will be usurping the functions of legislature.

VII. A court cannot give itself jurisdiction by misconstruing a statute. See African Newspapers of Nigeria v. Federal Republic of Nigeria (1985)2 NWLR 137.

The issue raised in the preliminary objection revolves around whether issues concerning custody and maintenance of minor fall under the garb of personal status?

The provision of Article 170(5) of the Constitution is thus relevant. The preliminary objection thus fall within (a) above. Article 170(5) of the Constitution state that:-

The jurisdiction of a Kadhi's 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 parties profess the Muslim religion and submit to the jurisdiction of the Kadhi's Court.

A critical examination of the aforesaid provision reveals that kadhi's court has a jurisdiction over four subject matters;

1. Personal Status.

2. Marriage

3. Divorce.

4. Inheritance.

In the interpretation of the Constitution a judicial officer should not only relay solely on the provisions of the Constitution without regards to our historical development and the history before our constitution was enacted.

In interpreting provisions of the constitution a judicial officer should give effect to every word in the Article to be interpreted, and where the words used are clear and not ambiguous they must be given their plain and ordinary meaning.

The starting point would be to find out the intention of makers of the Constitution as well as of legislature as far as ' personal status' is concern.

In giving the interpretation of personal status, the court’s attention was drawn to the decision by Justice J. K. Sergon in Amin Mohammed Hassan v Zahra Mohammed Abdulkadir (2009) eklr wherein the word ‘status’  is described as indicated in Black’s Law dictionary as follows;

“A person’s legal condition whether personal or proprietary; The sum tot al of a person’s legal rights, duties, liabilities and other legal relations or any particular group of them separately considered.”

He further states that;

“The issue touching on custody and maintenance was properly before the kadhi’s court. It is not right to claim that the kadhi’s court had no jurisdiction to hear and determine the issue…..Issues touching on maint enance and custody fall into the category of personal status.’’

The Judge, further, unfolds that Section 185 of the children’s act gave discretion to courts other than the children court to refer matters touching on children to the children court. The Act uses the word ‘may’ instead of ‘shall’

alluding that the Kadhi’s court or any other courts had jurisdiction to entertain children matters as long as the best interest of the child is taken into account as per the provisions of children act.

In Abdirahman Mohamed and another v AdanYussuf(2013)eklr the Court stated that;

“…paternity and custody of the child in this case are incidental to the issues of marriage and divorce between the Appellants and thus it falls under the jurisdiction of the Kadhi’s court.”

The preceding legal position corroborates and/or reflects the legal concept of personal status under Islamic legal system as elucidated in the jurisprudential works of eminent jurists.

Doi in ‘ Shariah: The Islamic Law’ (1984); and Zuhayli’s‘Fiqh Al-Islam Wa-Adillatuhu’ (2007)-(Islamic Jurisprudence and Evidence); Zakiyudhini’s‘Al-Ahkam Ash-Shar’iyyah

Lil Ahwaal Ash-Shakhsiyah(1993).-(Sharia Rules on Personal Status), indicates that:

personal status is conceptualized in a broader category of jurisprudential questions pertaining to status of the person in relation to rights, duties a nd liabilities he or she owes to family rights from the founding of a family to distribution of estate upon death.

In the premises given above, the issues of maintenance and custody of minors falls under the garb of personal status, thus this court has jurisdiction to hear and make a determination on them.

Accordingly , I dismiss the application for being incompetent and lacking in merit.

No order as to costs.

It is so decided.

Dated and delivered at Nairobi this 30th day of September 2015.

HON. A. I. HUSSEIN

KADHI II