[2022] KEHC 18062 (KLR)

AAA & another v KAM (Civil Appeal 2 of 2019) [2022] KEHC 18062 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 18062 (KLR)

Republic of Kenya

In the High Court at Lodwar

Civil Appeal 2 of 2019

JK Sergon, J

October 13, 2022

Between

AAA

1st Appellant

AA

2nd Appellant

and

KAM

Respondent

(Being an Appeal from the Judgment and Decree of the Kadhis Court at Kakuma, Hon. T.J Kunyuk(Kadhi) dated 26th July 2019 in Kakuma KCMC 14 of 2019)

Judgment

1. The 1st Appellant and the Respondent were married in April 2018. Later on, a divorce Petition was filed by 1st Appellant against the Respondent. The Petitioner sought inter alia dissolution of their marriage, payment of mahr and return of her household items. Her divorce Petition was based on the grounds of alleged cruelty, failure to provide for the family, being disallowed to visit her parents, and allegations of witchcraft.

2. In response, the Respondent filed replies to the petition and a Cross-Petition. In the cross petition the Respondent sought orders inter alia that their marriage not be dissolved, issuance of marriage certificate, 1st Appellant to return to their matrimonial home, preservation of property acquired during the subsistence of their marriage.

3. The matter was heard by Kadhi’s court and a judgment dated 26th July 2019 rendered. In that judgment, the kadhi’s court ordered that:i.That the marriage between the Petitioner and the Respondent is dissolved by way of khul';ii.That the Petitioner is NOT entitled to any mahr.iii.That the Petitioner or her parents/guardians shall pay 6000 US Dollars to the respondent within 6 monthsiv.That the Petitioner is estopped from contracting another marriage until the 6000 US Dollars has been paidv.That the respondent shall return all the personal belonging to the Petitioner (30g of Gold, her bag) within 3 months andvi.Each party to enjoy peace and security.

4. Aggrieved by the decision, the Appellants preferred this appeal. Through a Memorandum of Appeal dated 16th March 2021, the Appellants challenged the decision in Kakuma KCMC 14 of 2019, in appeal on the grounds, That:a.The learned trial Kadhi erred in law and fact by making a decision ordering the 2nd Appellant to pay the Respondent the sum of USD 6,000 despite the fact that the 2nd Appellant was not a party to the proceedings before the trial Kadhi and thus condemning him unheard.b.The learned trial Kadhi erred in law and fact by making a finding that the 1st Appellant had not proved her case despite the weight of evidence.c.The learned trial Kadhi erred in law and fact by failing to make a finding that the 1st Appellant had proven the particulars of cruelty on the part of the Respondent.d.The learned trial Kadhi erred in law and fact by taking as facts the allegations by the Respondent despite there being no independent evidence corroborating the same.e.The learned trial Kadhi erred in law and fact by stopping the 1st Appellant from contracting another marriage until USD 6,000 had been paid.f.The learned trial Kadhi erred in law and fact by making a finding in favour of the Respondent herein despite paucity of evidence.

5. In the main, the Appellant prayed for the following orders:i.This Appeal be allowed.ii.The decision by the trial Kadhi dissolving the marriage between the 1st Appellant and the Respondent on account of the Cross Petition be substituted with a decision dissolving the marriage based on the 1st Appellant Petition.iii.The decision by the learned trial Kadhi that the 1st Appellant is not entitled to mahar be substituted with an order directing the Respondent to pay mahar to the 1st Appellant.iv.The decision by the learned trial Kadhi requiring the parents and guardians of AAA to pay the sum of 6,000 USD to the Respondent be quashed.v.The Appellants be awarded costs of this Appeal and the proceedings before the subordinate court.

6. In advancing their case, the Appellants, on the First ground, submitted that the rule of natural justice dictates that no one should be condemned unheard. That, however, in this case the 2nd Appellant who is the father to the 1st Appellant was not a party to the suit filed before the Kadhis Court, thus it is in error that he be condemned to pay the 6,000 USD unheard. According to the Appellants, the order amounted to a miscarriage of justice. The Appellants cited Article 50(1) of the Constitution, on the right to fair hearing. The Appellant relied on the cases of Environment and Land Court at Eldoret Petition No. 8 of 2017 Salim Seif Andanje & Ano v Alex Jepkoech Yano & Ors; and, In Mbaki & Others v Macharia & Another [2005] 2 EA 206 at Page 210.

7. On the Second and Third grounds the Appellants posited that the Respondent was not only deceptive but also manipulative; that he had made various representations and promises to the 1st Appellant, that led to her accepting his hand in marriage. That the Respondent inflicted mental and physical cruelty on the 1st Appellant, on numerous times. She stated that she reported to the police and obtained an OB number after being beaten by the Respondent. Also, the 1st Appellant indicated that the Respondent cast a spell on her and that she had to go back to her mother's house for assistance. Further that the Respondent lacked empathy and disrespected the 1st Appellant's religious beliefs. That the Respondent also took away the gold that had been gifted to the 1st Appellant by her own mother; despite the fact that the Respondent was supposed to have purchased the gold for the 1st Appellant.

8. It was further submitted that the Kadhi chose to dwell on the alleged machinations involving the 1st Appellant and her family instead of whether the 1st Appellant did demonstrate beatings by the Respondent as well as other forms of cruelty. The court chose to place a higher currency on the money allegedly paid by the Respondent to the 1st Appellant's family. That the 1st Appellant had sought the payment of mahr which had been deferred; and that since the Appellant had proved her case, on a balance of probabilities, the Kadhi should have ordered the Respondent to pay the mahr in addition to the order for the return of the gold belonging to her. That the deferred mahr should be considered a debt payable to the 1st Appellant. Reliance was placed in Kadhi's Court at Kisumu Divorce Cause No. 14 of 2018 HAA v JOG case and in the High Court of Kenya at Garissa Civil Appeal No. 6 of 2017 FBI v BG case.

9. On Fourth and Sixth grounds, the Appellants averred that according to the Kadhi, the 1st Appellant and her family were on a mission to get as much money as possible from the Respondent; and that this was the Respondent's case. That the Respondent testified that the 1st Appellant's mother did not want her daughter to get involved with the Respondent, thus that he appears to be blaming the 1st Appellant's family for his woes.

10. The Appellants posited that the Respondent did not address the issues of cruelty levelled against him but sought a refund of various funds; to which the Kadhi granted him. To the Appellants the evidence by the Respondent does not demonstrate sufficiently that the 1st Appellant led to the collapse of her marriage to the Respondent thus making the decision by the Kadhi erroneous. The maintained that she is a humble and tolerant woman, as demonstrated by the fact that she could stay home for close to two days without food. However, that that fact the Respondent was unable to take care of his family.

11. On the Fifth ground, the Appellants contended that there is no justification as to why the Kadhi’s order was harsh and draconian, particularly, the injunction against the 1st Appellant not to procure another marriage before the sum of USD 6,000 was paid to the Respondent. That this sum of money was not given to the 1st Appellant and it should not be demanded from her, that she should not be prevented from contracting another marriage - just because her parents are alleged to have been given a gift of USD 6,000. The Appellants’ position was that there was no reference to any decision or provision of the Islamic Law that would justify a gift being returned.

12. Further, it was the Appellants submission that Article 25 of the Constitution of Kenya, 2010 recognizes the fact that the 1st Appellant enjoys the right to freedom from torture and cruel, inhuman or degrading treatment or punishment as well as freedom from slavery or servitude. That the Kadhi's decision also fails to recognize that Article 45(3) of the Constitution provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage and at the dissolution of the marriage. According to the Appellants, the impugned judgment places the Respondent at a higher pedestal and makes it appear as if the 1st Appellant is a commodity that has a price tag and a warranty period.

13. The Respondent did not file any response to the Appeal.

14. I have considered the appeal, the record and submissions, I find that the issue that falls for determination is whether the Kadhi’s Court:i.Whether the decision by the Kadhi to declare the marriage dissolved by way of Khul’a was proper.ii.Whether the decision by Kadhi that the 1st Appellant was not entitled to mahar was just.iii.Whether the decision by the Kadhi ordering parents/guardians, the 2nd Appellant, to pay 6,000 USD to the Respondent ought to be quashed.

15. On issue one, this court is guided by the case of MMO v FAH [2019] eKLR, where the High Court at Garissa observed that,

“43. There are several ways in which a marriage contract can be dissolved in Islam. First it should be noted that divorce ends the marriage by severing bond by the sole will of the husband.

44. Divorce by judicial decree applies where the husband has harmed wife, if he refuses to divorce her she can raise her case to the court (Kadhi). If harm is proven, then the court rules in her favour thereby divorcing her husband.

45. When it comes to Khulu the same is defined as redemption/release against payment. Literally meaning “talking of something”. It applies the wife separates from her husband just like talking off her clothing in-law. It means the release of wife against payment of remuneration to the husband. It is a form of divorce initiated by the wife, which is effected by return of her husband’s wedding gift.

Legal basis for Khula:- 46. The Holy Quran lays the legal basis of Khula, it says:

“And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g.) to deal with each other on fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah so do not transgress them and whomsoever transgresses the limits ordained by Allah then such are the zalimu (wrongdoers)”. Al Baqarah: 229. 47. Ibn Abbas (R.A) narrated that the wife of Thabit Ibn Qays Ibn Shimas told the prophet (PBUH): ‘O prophet, I have no problem with my husband’s conduct and piety but I hate to apostasy in Islam’ (not able to observe the limits of Allah in marriage), the prophet asked her, ‘will you return to him his farm? (dowry) she said ‘yes’; the prophet then told Thabit, “accept back the farm and divorce her.’ It is reported by Bukhari and Al Nasaiy. In Dar al Qutny’s version, the lady said: ‘I am ready to return the farm and more’, the prophet said: ‘return the farm only’.

48. Both the above verse and the tradition of the prophet talk about the wife proposing to return the dowry or part of it to the husband in return for divorce. This arrangement is what is known as khula.

(i)Essentials of Khula 49. There are four main conditions of khula:-(i)There must be an offer from the wife. The wife may make a proposal either by the use of word “Khul’u” or its derivative e.g. the wife states ‘give me a Khul’u in exchange of my dowry.’(ii)The offer must be accepted by the husband. The husband replies “I do”. Thereafter a valid dissolution of marriage under Khul’u comes into effect. (Emphasis)(iii)The monetary compensation must be paid in return by someone who is legally qualified to donate.(iv)The husband must be legally qualified to divorce. (Dr. Salih Al-Fawzan, A summary of Islamic Jurisprudence, V2, page 424).

50. Khulu may take place by agreement between the two parties, however, if they cannot come to an agreement, or if the husband arbitrarily refuses to respond to the wife’s request, the wife can raise her case to the court to obtain an irrevocable divorce decree. (The Islamic Charter on Family page 404 Article 89).

51. In our case neither the respondent nor the appellant made a proposal for Khula. In the instant case the plaintiff/respondent clearly demanded the defendant/appellant to pay the agreed dowry and further requested the court to dissolve the marriage. (Page 3 of the proceedings).

52. Where the marriage negates its objectives, but the husband refuses to divorce his wife amicably, and the wife satisfies the grounds under which a Muslim wife can obtain a decree for the dissolution of her marriage, the right thing for the Kadhi to do is to pronounce divorce by way of judicial decree and not Khula as the learned Kadhi purported to end the marriage.

53. The trial Kadhi relied on Khulu divorce to dissolve the marriage which was erroneous in view of the above explanation.

54. The respondent claim was the divorce by judicial decree on grounds of-(i)Disobedience and cruelty including insulting and assaulting inflicted on her by the appellant.

55. This category of divorce does not take form and process of Khulu. Thus the Kadhi Court was wrong to use the element of Khulu divorce to justify divorce herein.

56. Thus this court nullifies the said divorce and substitutes the same with a judicial decree divorce.

57. This is because the respondent evidence in support of her suffering in the hands of the appellant proved the grounds for divorce and justified divorce without appellant consent.

58. I agree with trial court Kadhi holding that, “marriage is a contract which cannot continue by forcefully and if the husband decides to revoke then he has right to do so but must pay all rights upon him for the wife and divorce her according to Chapter 4 verses 120, Chapter 2 verses 229, Chapter 65 verses 1 and many other verses in the Holy Quran and teaching of the prophet Mohamed (P.B.U.H) and if the wife decided to revoke the marriage then she has to go to a Muslim Kadhi who has got jurisdiction and he will facilitate her revocation with due process. That forcing one of the parties to live in a marriage which he/she does not want to continue is unlawful and it might cause a major problem such as losing lives.” 16. In the instant case, the 1st Appellant had sought dissolution of marriage by way of Khula. The evidence shows that the Respondent objected to the dissolution of their marriage; as clearly captured in his answer to petition and cross petition dated 11th June 2018(sic)2019. Thus this court nullifies the Kadhi’s order of marriage dissolution by Khul’a and substitutes the same with a judicial decree divorce.

17. On issue two, guidance is followed from the case of FW v NA [2017] eKLR, where the High Court stated that,“In Islamic law and practice a man is only allowed to pay dowry. Dowry is the right of the women upon the man. Dowry has no specific minimum or maximum. It can be delayed or given in advance. Allah says,And give to the women (whom you marry) their mahr obligatory bridal money given by the husband to his wife at the time of marriage) with a good heart but if they of their own good pleasure remit any part of it to you take it and enjoy it without fear of any harm (as Allah has made it lawful) Sura 4 an Nisai 4. I therefore don’t understand whether this one hundred and forty thousand (140,000/=) was a gift or a debt. If it is a debt, then this is the wrong forum. I advise the defendant to take the matter to the right court.”

18. Also, the High Court in affirming the mandatory nature of mahar, in MEM v AD [2015] eKLR, held that,“The mahr (dowry) is something that is paid by the man to his wife. It is paid to the wife and to her only as an honour and a respect given to her and to show that he has a serious desire to marry her and is not simply entering into the marriage contract without any sense of responsibility and obligation or effort on his part. It has been referred to by many names in the texts and the books of fiqh: Proof that the Mahr is Obligatory Allah says in the Qur'an: "And give the women their dowries with a good heart..." [Noble Quran 4:4]This verse is addressed to either the husbands or the guardians. It is addressed to the husbands because it is their responsibility to pay the dowry. It could also be addressed to the guardians, not because they have to pay the dowry, but because in pre-Islamic jahiliya (and in much of today's "post-Islamic" jahiliya), they used to take the dowry of the women and not give it to them. This verse shows that the dowry must be given to the women and not kept by the guardians. The following verses also shows the obligatory nature of paying the dowry to the women:"...So for that pleasure which you have enjoyed from them, give them their prescribed compensation. " [Noble Quran 4:24] "...All others have been made lawful for you provided you seek (them in marriage) with your property..." [Noble Quran 4:24]Regarding one of the Companions who was poor and wished to marry, the Prophet (peace and blessings be upon him) said to him: "Search for something, even if it is just a ring made from iron." [Bukhari & Muslim]Regarding this case I have heard the defendants averments that if the court dissolves the marriage the plaintiff should return the Mahr. I am aware that the only thing received was to the father as sadaqa but as per the Islamic practice and sharia the Mahr is paid to the wife and its compulsory and must paid even on death. I cannot abandoned the law of Allah and rule by the wish and whim of individuals. Munira is entitled to her full dowry it will be against the law for me strip it off.” (Emphasis)

19. Additionally, in HSA v AAL [2020] eKLR, the court observed that,“18. Dowry is an basic and fundamental right to the wife under Qur'an 4: 4 and 25. It is not extinguished unless wholly or partly forfeited by the wife in her own free will and consent.“And give to the women (whom you marry) their mahr (obligatory bridal-money) with a good heart; but if they of their own good pleasure, remit any part of it to you, take it, and enjoy it without fear of any harm (as Allah has made it lawful) Nisa: 4:4"19. The defendant shall settle the same in kind or its monetary equivalent at current market price. “

20. Further, in the case of FW v NA [2017] eKLR the court stated that“This is not a normal talaq; it is Khul’a whereby the plaintiff was supposed to return the dowry paid to her unfortunately the defendant didn’t pay the dowry. Therefore, nothing will be returned to him. “It is reported in Sahihul-Bukhary that, a woman came to Prophet Mohammed (P.B.UW) and said, “I hate my husband and like separate from him. The prophet asked, would you return the orchard he gave you as dowry? She replied “Yes” even more than that, the prophet said return what he gave you as dowry and he ordered the companion to divorce once”.

21. The Kadhi in his judgment had found in evidence that the 100g of gold as argued by the 1st Appellant was the mahr. To that end, and in view of mahar being compulsory paid to the wife, I find that the Kadhi erred by denying the 1st Appellant her entitlement to mahar.

22. On issue Three, the court in FW v NA (Supra) the court observed that,“The defendant also raised a counter claim in his defense in paragraph twelve and stated that he incurred expenses of Kenya shillings one hundred and forty thousand in purchasing food and beverages which the same must be refunded by the plaintiff. This is a court of law and only Islamic law will be applied.”The court held that,“In Islamic law and practice a man is only allowed to pay dowry. Dowry is the right of the women upon the man. Dowry has no specific minimum or maximum. It can be delayed or given in advance… I therefore don’t understand whether this one hundred and forty thousand (140,000/=) was a gift or a debt. If it is a debt, then this is the wrong forum. I advise the defendant to take the matter to the right court.”

23. Turning back to the instant case, the Kadhi in his judgment had observed that,“First they (2nd Appellant) demanded he(Respondent) pay 6,000 USD as a token of appreciation to the parents of the Appellant for allowing the Respondent to marry their daughter (1st Appellant). By any standards of marriage within the Somali community in Kakuma, this amount is not only ridiculous but an affront to the institution of marriage in Islam.”

24. This court finds no reason to differ with this finding of the Kadhi Court. Nonetheless, to my mind, the key applicable law is the Islamic law. I have not come across what amount is appropriate for token of appreciation, in Islamic Marriage. Therefore, in this instant, I’m inclined not to interfere with the token of appreciation that was given.

25. In the end, the appeal is allowed thus giving rise to issuance of the following orders:i.The decision of the trial Kadhi dissolving the marriage between the 1st appellant and the respondent on account of the Cross Petition is set aside and is substituted with a decision dissolving the said marriage based on the 1st appellant’s petition.ii.The decision by the trial Kadhi that the 1st appellant is not entitled to Mahar is set aside and is substituted with a decision to the effect that the 1st appellant is entitled to Mahar hence the respondent should pay Mahar to the 1st appellant.iii.The decision by the trial Kadhi requiring the parents and guardians of AAA to pay the sum of 6000/USD to the respondent is quashed.iv.Costs of the appeal is awarded to the 1st appellant.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 13TH DAY OF OCTOBER, 2022. .......................J. K. SERGONJUDGEIn the presence of:……………………………. for the 1st Appellant……………………………. for the 2nd Appellant……………………………. for the Respondent