1.Before the court is appeal as expressed in the recital
2.The Memorandum of Appeal dated 4/3/2023 sets out the grounds of appeal as follows:
3.On the 6/6/23 the appellant field a Supplementary Memorandum of Appeal dated 5/6/23 with leave of court and introduced a new ground of Appeal that the Kadhi’s Court had no jurisdiction in children matters and prayed for the setting aside of the entire judgment of the Court as follows:
4.The Appellant’s Counsel filed written submissions on 4/7/2023 urging illegality in multiple committal to jail in execution of judgment, and further taking up objection to the Kadhi’s Court in children matters, principally, as follows:
5.Despite directions for the filing, and opportunity granted by adjournment of the hearing of the appeal, the Respondent did not file any submissions.
Issue for Determination in the Appeal
6.The Counsel for the appellant sought to introduce for determination the wider issue of the jurisdiction, or lack of it, of the Kadhi’s Court to deal with children cases. The matter was discussed by the trial Court which found jurisdiction in the judgment making the award of maintenance orders the execution of which by multiple orders of committal to civil jail in subsequent proceedings was the subject of the current appeal.
7.The ground of want of jurisdiction of the Kadhi Court as ground of appeal was not properly taken before this Court as the leave of court to amend the Memorandum of Appeal had not been obtained in accordance with section of the Civil Procedure Act and the appeal before the court is not as against the judgment of the Kadhi’s Court which made the determination on maintenance but rather on the challenged multiple execution of the order for maintenance.
8.Such a ground would have been appropriate in an appeal against the said judgment not against an order in execution of the judgment. It is clear from the recital to the Memorandum of Appeal filed herein that the appeal before the court isThe judgment awarding maintenance dues was delivered by Senior Principal Kadhi Abdulhalim H. Athman (as he then was) of 11/3/2023 where he determined that the Kadhi’s Court had jurisdiction over children matter as follows:
9.In addition, the jurisdiction issue was taken up in the written submissions filed before this court and it was not properly and sufficiently canvassed before this court to enable a well-considered view on such an important question as the jurisdiction of the Kadhi’s Court over children matters. And needless to say, the best interests of the child are for a final substantive determination of the question of jurisdiction of the Kadhi’s Court in children matters after full argument on the constitutional provisions and applicable law.
10.This Court will, not having been served with argument on such important jurisdictional question, decline the invitation to consider the issue and or find that the Kadhi’s Court has no jurisdiction in children matters related to cases of matrimonial disputes before the court, or at all.
11.Moreover, a challenge on the Judgment of the Kadhis’s Court being in the nature of a final Decree, and not an order as in this case, is appealable to the High Court with a special bench in terms of section 65 of the Civil Procedure Act as follows:An appeal from the Judgment of Senior Principal Kadhi Athman delivered on 11/3/ 2023 may, therefore, only be taken before the special bench of the High Court in accordance with the law, which was not the case before me which was an appeal from an order by the ruling in post judgment execution/committal proceedings.
12.The determination of the jurisdiction of the Kadhi’s Court to deal with issues of children in matters of personal law affecting the parents in proceedings properly before it will await deliberation and determination in a suitable proceedings properly taken before the High Court or higher courts.
13.For now, having considered the question whether a judgment debtor may in successive execution proceedings be committed to civil jail, as a method of enforcement of decree or order for the payment of money or performance of other obligation, for more than one occasion, this court finds the issue to be statutorily settled by the provisions of section 42 (2) of the Civil Procedure Act, provides as follows:
14.The Court, therefore, finds merit in the appeal and it shall be allowed to the proper extent.
15.Accordingly, for the reasons set out above, the court makes the following orders:1.The Court the appellant’s appeal herein dated is partly allowed.2.The Order for the committal to jail of the appellant for the second time over the execution of the order for maintenance dues made by the Kadhi’s Court on 23/2/2023 in Isiolo Kadhi’s Court Divorce Cause No. E007 of 2021 is set aside.
16.There shall be no order as to costs owing to the matrimonial nature of the matter.
17.File closed.Order accordingly.