[2023] KEHC 27191 (KLR)

AYM v HIK (Miscellaneous Case 171 of 2019) [2023] KEHC 27191 (KLR) (Family) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27191 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Case 171 of 2019

PM Nyaundi, J

December 8, 2023

Between

AYM

Applicant

and

HIK

Respondent

Ruling

1. Before this court is the Notice of Motion application dated 8th October 2019 by which the Applicant AYM seeks the following orders:-1. Spent.2. Spent3. The Honourable Court be pleased to call for the record of proceedings in Kadhi’s Court Civil Case No. 36 of 2017 relating to the children in issue.4. The warrants of arrest issued in Kadhi’s Court Civil Case No. 36 of 2017 on 30th September, 2019, the purported consent order issued on 1st October, 2019 and the Committal to civil jail issued on 4th September, 2019 be set aside, vacated and/or discharged.5. The Honourable Court be pleased to hear and determine the following issues namely;a.Whether the Kadhi’s Court has jurisdiction to determine custody of children.b.Whether the Applicant has exclusive parental responsibility, actual custody, care, control, shelter, clothing of the children ex debitio justitiae by virtue of Islamic Law and the re-marriage of the Respondent.c.Whether Hon. S.H Omar was biased and harsh against the Applicant and denied him access to justice and fair trial.d.Whether there was any application before Hon. S.H Omar to justify the warrants of apprehension and the warrants of committal to civil jail.e.Whether there was a consent order without the parties’ signature.f.Whether the Applicant can be punished under a non-existent contempt of court Act, 2016. g.Whether there was an alternative order for the Applicant to pay the Respondent Kshs. 175,000. 00. 6.Costs of the application be provided for.

2. The Application was premised upon Article 27, 48, 50 (1), 53 and 165 (6) &(7) of the Constitution of Kenya 2010, Section 5 (a) of the High Court (Oganisation and Administration ) Act, 2015; the Children Act, 2001 and all other enabling provisions of the law and was supported by the Affidavit of even date sworn by the Applicant.

3. The Respondent did not file a response to the application nor file written submission despite being served. On record is an affidavit of service sworn by a Moses Ambaka, a court process server on 28th October 2019. The matter therefore proceeded undefended.

4. The Applicant filed written submissions dated 2nd March 2023.

Background 5. The parties herein were involved in Divorce Case No. 36 of 2017. Their marriage was formalised in 2004 and were blessed with 5 children aged between 12 and 2 years old then. The Respondent’s claim against the Applicant were allegations of cruelty, desertion, assaults, immorality and abdication of matrimonial responsibilities among others. The Appellant denied these allegations and made a counter claim against the Respondent citing disrespect, cruelty, chasing him out of the marital house, denial of conjugal rights and access to the minors and matrimonial pervarsiveness

6. After hearing both parties, the Hon. Deputy Chief Kadhi vide a Judgment delivered on 27th March 2017 gave the following orders;a.The Respondent bears and shoulders the healthcare and clothing for the minors.b.The Respondent avails Kshs. 35,000 monthly.c.The Respondent do pay arrears of Kshs. from October 2016 to February 2017 amounting to Kshs. 150,000. d.The Respondent do pay the deferred dowry and two cows each aging 4 years or the equivalent of Kshs. 36,000. e.Divorce certificate be issued.f.Iddat will lapse within 90 days.

7. Being aggrieved by the decision of the trial court,the Applicant filed the present application.

Analysis and Determination 8. I have considered the application before this court, the Affidavit on record as well as the written submissions filed by the Applicant.

9. An issue was raised that the Kadhi’s Court had no jurisdiction to hear and determine the dispute because it related to the custody and upkeep of the children, and that the dispute ought to have been filed before the Children Court under Children Act of 2001.

10. Does the Kadhi Court have jurisdiction in matters of children in view of the establishment of Children’s Court? There are varied opinions by courts of concurrent jurisdiction on this matter. I am persuaded by a recent decision conferring jurisdiction to the court on this issue. Ali-Aroni J, in HCCA 85 of 2017 ZUDG v SJKUR (2020) eKLR, where shewstated:“Does the Kadhi Court have jurisdiction in matters of children in view of the establishment of Children’s Court? There are varied opinions by courts of concurrent jurisdiction on this matter and it is probably time that the Court of Appeal adjudicates on the same and settles the issue. This court for now, aligns itself, so did the Kadhis who sat in this matter with the thought that the Children’s Act did not oust the jurisdiction of the Kadhi or other subordinate courts in dealing with issues of children. Indeed, lately all magistrates are gazetted to handle children matters and in this court’s considered view, by implication Kadhis too being in the category of magistrates should and ought to hear such matters and more so where the same are connected and incidental to the cause before the Kadhi, so long as the said court applies the principles laid down by The Children’s Act and in particular applies the best interest of the child’s principle as enunciated by the said Act."

11. Cases where courts have been of similar thinking include Amin Mohamed Hassan v Zahra Mohamed Abdulkadir (2009) eKLR Sergon J stated:“Even if the Children’s Act No. 8 of 2001 is in existence I don’t think the appellant would have succeeded for two reasons. First, the Children’s Act No. 8 of 2001 didn’t expressly oust the jurisdiction of the Kadhi’s court nor did it repeal any of the provisions of the Kadhi’s Act.”

12. In Najma Ali Ahmed vs Swaleh Rubea (2010) eKLR, Omondi J held as follows:“Part VII of the Act deals with custody and maintenance of the child and gives children’s court provision to make orders for maintenance for the child. However, it must be borne in mind that the child’s maintenance is incidental to the marriage and thus this fall under the jurisdiction of the Kadhi’s court which addressed matters of personal law on members of the Muslim faith. Indeed, the readings of the Qur’an are so specific even as regards provision by fathers for their sons and there was no error by the Kadhi.”

13. In Abdirahman Mohamed Abdi & Another vs Adan Yusuf (2013) eKLR Mutuku J stated as follows:“My view therefore is that paternity and custody of the child in this case are incidental to the issues of marriage and divorce between the Appellant and thus it falls under the jurisdiction of the Kadhi…..”

14. Recently, the Court of Appeal in TSJ vs SHSR ]2019] eKLR settled the issue of jurisdiction of the other bodies such as tribunals to hear and determine custody and maintenance where parties profess the muslim faith. The court pronounced as hereunder[41. ]Section 73 of the Children Act cited by the Judge provides that “there shall be courts to be known as Children’s Courts constituted” for the purpose, inter alia, of conducting civil proceedings on matters set out thereunder; hearing any charge against a child (subject to exceptions); hearing a charge against any person accused of an offence under the Children Act; and exercising any other jurisdiction conferred by that Act or other written law. There is however no stipulation in that provision that such jurisdiction is exclusive. Under part VII of the Children Act, “a court” may on application make orders regarding custody, care and control, maintenance of children but again without stipulation that such jurisdiction is exclusive. We reiterate that as the Judge correctly noted there is nothing in the Act that would prevent a body such as the Arbitration Board from arbitrating over disputes relating to such matters where both parties submit to the authority of such a body.

15. One can surmise from the foregoing decision that an approach that grants exclusive jurisdiction to the Children Court to handle children matters would be contrary to the

16. Robust provisions of the Constituion of Kenya 2010, which has as one it’s pillars the guarantee to access to justice. The above decision of the Court of Appeal is binding on me. Consequently, I am of the view that the Kadhis Court had jurisdiction to issue orders relating to custody and maintenance of the children in this matter.

17. The Applicant further invokes the jurisdiction of the Court to overturn the decision of the Court with regards to orders made in relation to maintenance and custody of the Children. The Applicant has not substantiated his claim to the effect that the orders granted were not in the best interests of the Child. It is not suffieient to state that the Applicant feels punished by the orders of the lower Court.

18. The grounds upon which this Court may interfere with the exercise of discretion by the trial court were well enunciated in the leading local decision of MbogovShah (1968) EA page 93 in which De Lestang (as he then was) observed at page 94. “I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.

19. For this reason I decline to interfere with the Court’s orders as relates to the custody and maintenance of the Children as I find that the Applicant cannot invoke the supervisory jurisdiction of the Court to determine what is properly handled by this Court’s Appellate jurisdiction.

20. It is well settled that the Court’s supervisory jurisidcition should be exercised sparingly. In Republic v Chief Magistrate’s Court at Milimani Law Courts; Director of Public Prosecutions & 2 others (Interested Parties); Ex-parte Applicant: Pravin Galot [2020] eKLR the court stated as follows:“59. There is a clear distinction between supervisory jurisdiction, judicial review jurisdiction and appellate jurisdiction. Supervisory jurisdiction refers to the power of superior courts of general superintendence over all subordinate courts. Through supervisory jurisdiction, superior courts aim to keep subordinate courts within their prescribed sphere, and prevent usurpation. In order to exercise such control, the power is conferred on superior courts to issue the necessary and appropriate writs. (see,Gallagher v Gallagher 212 So. 2d 281,283(La. Ct.App.1968)).60. This power of superintendence conferred by Article 165 (6) of the Constitution, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. v Sukumar MukherjeeAIR 1951 Cal.193 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. As the Supreme Court of India stated unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Article 165 (6) of the Constitution to interfere” (seeD.N. Banerji v P.R Mukherji1953 S.C 58).

21. In National Social Security Fund V Sokomania Ltd & Anor [2021] eKLR, the court reiterated that the Courts supervisory jurisdiction should be exercised sparingly and only in exceptional circumstances and added that the power should not be exercised where there is an alternative remedy. The Court observed that in that case the Applicant had a right of appeal against the orders sought to be reviewed.

22. The Application therefore fails on that limb.

23. Finally the Applicant challenges orders issued by the Court that are hinged on the Contempt of Court Act, 2016. On this ground the Application will succeed as the Trial Court must be faulted for granting orders on the basis of an Act that has been decalred unconstitutional.

24. The Appeal therefore partially succeeds to the extent that the warrants of arrest and consequential orders are set aside.

25. In summary this Court finds1. The Kadhi Court has jurisdiction to determine a matter that relates custody of Children.2. Orders of The Court touching on custody and maintenance of the Children are upheld.3. Warrants of Arrest are of no effect having been issued under a statute that has been declared unconstitutional4. Each party will bear their own costsIt is so ordered

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 8th DAY OF DECEMBER, 2023. P. NYAUNDIJUDGEIn the presence of:Sylvia Court Assistant