[2018] KEHC 9619 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

FAMILY DIVISION

CIVIL APPEAL 4 OF 2014

A A I..............................................APPELLANT

VERSUS

H A D..........................................RESPONDENT

JUDGEMENT

(An Appeal from the Judgement of Hon. Sheikh Abdulhalim H. Athman, Principal Kadhi delivered on 20. 2.14 in Mombasa Kadhi Civil Cause No. 55 of 2013)

1. A A I, the Appellant and H A D, the Respondent were married under Islamic Law on 27. 7.00. They were blessed with 3 children. By a Plaint filed against the Appellant on 16. 4.13, the Respondent sought dissolution of the marriage on the following grounds:

i. The Defendant has a habit of using abusive language to the Plaintiff.

ii. The Defendant is unfaithful. He has a habit of roaming around with other women.

2. The Respondent also sought custody and maintenance of the 3 children who at the time were aged 12 years, 8 years and 4 years respectively. She also sought past maintenance for herself and the children as well as costs.

3. In his judgment of 20. 2.14, Hon. Principal Kadhi dissolved the marriage, granted custody to the Respondent with reasonable access to the Appellant. He further directed the Appellant to pay for the children’s education, health and maintenance according to the needs of the children and his ability.

4. The Appellant being aggrieved by the decision of the Hon. Principal Kadhi preferred the Appeal herein. The Grounds of Appeal in summary are that the learned Kadhi erred in law and fact in that he:

1. Assumed jurisdiction of a matter relating to custody of children which is out of his jurisdiction as the claim has no bearing to Islamic law or rights enforceable thereunder.

2. Presided over a matter relating to children while not being duly gazette to do so pursuant to Section 73(ii) of the Children Act 2001.

3. Vested custody of the children to the Respondent solely without specifying who would have actual possession as defined under Section 81 of the Act.

4. Failed to apply the principles in Section 83 of the Children Act 2001.

5. Put the interests of the Respondent above those of the children

6. He delivered judgment without giving reasons for the same.

The Appellant prayed that the Appeal be allowed and the judgment of the Hon. Kadhi vesting custody of the children of the parties be set aside as null and void. She also prayed for costs.

5. The parties through their respective counsel filed written submissions in which the following 3 main issues arose for determination:

i. Whether the learned Kadhi had jurisdiction to hear a children’s case

ii. Whether the learned Kadhi applied the principles of law relating to custody

iii. Whether the learned Kadhi applied the principles of law relating to maintenance

6. I have given due consideration to the submissions which were highlighted before the Court and in the presence of the Hon. Chief Kadhi as assessor as required by Section 65(1)(c) of the Civil Procedure Act. It is the duty of this Court as a first appellate court to reconsider the evidence, revaluate it and make its own conclusions. This duty was set out by the Court of Appeal in the case of Kenya Ports Authority versus Kusthon (Kenya) Limited (2009) 2EA 212 wherein it was held inter alia,that:-

“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence”.

Whether the learned Kadhi had jurisdiction to hear a children’s case

7. It was submitted for the Appellant that Article 170(5) of the Constitution of Kenya which sets out the jurisdiction of the Kadhi’s Court does not specifically provide for issues relating to children. The Children Act is the specific Act which governs issues of children. The issue relating to children herein ought to have been referred to the Children’s Court for a just and fair determination.

8. For the Respondent, it was contended that the Appellant failed to file a defence to the Respondent’s claim in the trial Court which claim therefore remained uncontested. This therefore is just but an afterthought and a belated attempt to reverse the decision of the Hon. Kadhi. According to the Respondent, the Kadhi Court is empowered both by the Constitution and the Kadhi’s Court Act to hear and determine matters relating to children and further that the Children’s Court does not have exclusive jurisdiction over the said matters.

9. The jurisdiction of any Court is derived from the Constitution or statute or both. This was well articulated by the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR as follows:

“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation”

10. The Constitution of Kenya 2010 and the Kadhis’ Courts Act both exhaustively provide for the jurisdiction of the Kadhi Courts. Article 170(5) of the Constitution of Kenya 2010 provides as follows:

“The jurisdiction of a Kadhis’ 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 the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.”

11. The tenor of Section 5 of the Kadhi’s Court Act is similar:

“A Kadhi’s court shall have and exercise the following jurisdiction, namely the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the 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 proceeding which comes before it.”

12. The list of questions that a Kadhi Court may determine as contained in both the Constitution and the Kadhis’ Court Act is specific and exhaustive. These are personal status, marriage, divorce or inheritance where all parties are Muslims. The provisions do not refer to any issues concerning children. The Respondent cited the persuasive High Court cases of Najma Ali Mohamed v Swaleh Rubea [2010] eKLR and THJ v SMO [2014] eKLR where Omondi, J and Mutuku, J respectively, found that the issues of custody and maintenance of a child are incidental to the issues of marriage and divorce thus fall under the jurisdiction of the Kadhi’s court. With respect, I disagree. Article 170(5) and Section 5 of the Kadhis’ Court Act do not refer to any matters “incidental to” personal status, marriage, divorce or inheritance. As the Supreme Court stated in the Samuel Kamau Macharia case (supra) a Court can only exercise jurisdiction conferred upon it. Jurisdiction cannot be inferred. Indeed as per the holding of the Supreme Court, the Kadhi’s Court must operate within the constitutional and statutory limits. It cannot expand its jurisdiction through judicial craft or innovation to matters not specifically provided for in the exhaustive list. Had the people of Kenya while promulgating the Constitution of Kenya 2010 or Parliament when enacting the Kadhi’s Court Act intended that jurisdiction of the Kadhi’s Court extends to custody and maintenance of children, nothing would have been easier than to specify so.

13. Further, Parliament in its wisdom enacted Children Act 2001 to deal specifically with matters concerning children. This Act applies to all children in Kenya regardless of their religious background. The long title of the Act sets out the purposes for which the Act was enacted:

“An Act of Parliament to make provision for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children; to make provision for the administration of children’s institutions; to give effect to the principles of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child and for connected purposes”

14. Section 73 of the Act provides for the establishment of Courts for dealing with matters concerning children and for the gazettement of magistrates to preside over cases involving children as follows:

“There shall be courts to be known as Children’s Courts constituted in accordance with the provisions of this section for the purpose of—

a. conducting civil proceedings on matters set out under Parts III, V, VII, VIII, IX, X, XI and XIII;

The proviso to Section 73 provides inter alia:

“the Chief Justice may, by notice in the Gazette, appoint a magistrate to preside over cases involving children in respect of any area of the country;”

15. Part VII of the Act deals with custody and maintenance of children. Although the jurisdiction of the Children’s Courts is not exclusive, jurisdiction in matters involving children has not been conferred upon the Kadhis Courts nor is the Chief Justice empowered by the Children Act to appoint any Kadhi for the purpose of conducting proceedings under the Act. My finding therefore is that the Kadhi’s Court does not have jurisdiction to deal with matters concerning children and without jurisdiction, the Kadhi’s Court cannot entertain any proceedings before it concerning children. The upshot of this finding is that in granting orders of custody and maintenance of the children herein in Mombasa Kadhi Civil Cause No. 55 of 2013, the Hon. Principal Kadhi exceeded the jurisdiction conferred upon the Court by the Constitution and by statute.

16. In view of the above finding that is all there is to say on the matter. The remaining 2 issues of whether the learned Kadhi applied the principles of law relating to custody and maintenance will be a mere academic exercise as without jurisdiction, it matters not whether the said principles were applied or not.

17. Hon. Sheikh Al Muhdhar A. S. Hussein, Chief Kadhi was of the opinion that the Appeal should be allowed. The Hon. Chief Kadhi’s opinion is reproduced in part:

“The learned Kadhi erred in giving himself jurisdiction to entertain issues of children while there is an act of parliament children Act No. 8 of 2001 which deals with issues of Children regardless to their faith Jurisdiction is donated by the Law ... Any court decision without jurisdiction that decision shall render (sic) NULL and VOID however good it is.”

18. I concur with the opinion of the Hon. Chief Kadhi and my conclusion is that the Hon. Kadhi misdirected himself by assuming jurisdiction over the issue of custody and maintenance of the children herein. Accordingly, I find and hold that the Appeal has merit and the same is allowed. The judgment of the Hon. Kadhi of 20. 2.14 in so far as it relates to the issue of custody and maintenance of the children is hereby set aside. This being a family matter, there shall be no order as to costs.

DATED, SIGNED and DELIVERED in MOMBASA this 31st day of May 2018

______________

M. THANDE

JUDGE

In the presence of: -

............................................. for the Appellant

..............................................for the Respondent

..............................................Court Assistant