https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10134

Alambo v Shamasdin (Civil Miscellaneous E512 of 2026) [2026] KEHC 10134 (KLR) (Civ) (10 July 2026) (Ruling) Neutral citation: [2026] KEHC 10134 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Miscellaneous E512 of 2026 KL Kandet, J July 10, 2026 Between Mohamed Said Alambo Applicant and Maka Ali Shamasdin Respondent Ruling 1.Before Court for determination, is the Applicant’s Chamber Summons Application dated 05.06.2026, expressed to be brought under Sections 1A,1B,3A and 18(1)(a) of the Civil Procedure Act Cap 21 Laws of Kenya. The Applicant is praying for orders that:i.Child custody and maintenance proceedings in KCDC E.157 of 2024, Maka Ali Shamasdin v Mohamed Said Alambo Nairobi Kadhi’s Court be transferred to the Milimani Children’s Court for consideration and final determination.ii.…spentiii.That the costs of this application be provided for. Background 2.The parties to this Application, are the same parties in Nairobi Kadhi’s Court Case No. KCDC E.157 of 2024.In the proceedings before the Kadhi’s Court, the following prayers were sought, among others:a.Dissolution of the marriageb.Orders relating to matrimonial propertyc.Custody of the childrend.Maintenance of the children 3.During the proceedings in the Kadhi’s Court, parties agreed and partially recorded a consent as follows:a.That physical custody be granted to the petitioner (Respondent in this Application).b.That both parties will have legal custody of the children 4.The issue of maintenance of the children was determined by the Kadhi’s Court in a judgment delivered on 4th.3.2025. In the said judgment, the Respondent (Applicant in this Application) was ordered to pay ksh30,000/ per month to the Petitioner. 5.According to the Respondent, the Applicant herein complied by paying the monthly maintenance, albeit in arrears from September 2025 to May,2026. 6.As a result of default on the part of the Applicant, a Notice to Show Cause (NTSC) was issued against the Applicant on 2nd.6.2026. This NTSC appears to have triggered the filing of the instant Application to transfer the matter from the Kadhi’s court to the Nairobi Children’s Court. 7.The Applicant’s main contention as evidenced in his affidavit dated 5th.6.2026, is that the Kadhi’s court, having issued a divorce decree in the matter before it, is functus officio. The Applicant contends that the Kadhi’s court cannot proceed to conduct proceedings relating to questions of child custody and maintenance. 8.The Applicant avers that the issue at hand elicits fundamental questions of law touching on parental rights and obligations as well as child rights. According to the Applicant, imminent danger of injustice will be occasioned if the proceedings at the Kadhi’s Court are not transferred to the Children’s Court, which is best suited to address child custody and maintenance issues. 9.The deponent further states that the continuance of the matter at the Nairobi Kadhi’s Court constitutes irregular proceedings as the said court is incompetent and legally barred from handling child custody and maintenance matters for want of jurisdiction and considering the complex issues involved. 10.The Respondent has opposed the Application through her replying affidavit sworn on 23.06.2026. She terms the Application as a blatant abuse of the court process. 11.The Respondent contention is that the Applicant voluntarily submitted to the jurisdiction of the Kadhi’s Court and actively participated in the proceedings by fully taking part at the hearing that resulted in the judgment. 12.The Applicant was represented in the entire proceedings before the Kadhi’s court by an advocate, who did not at any point raise any objection to the Kadhi’s court exercising jurisdiction on custody and maintenance of the children 13.The Respondent further stated that the NTSC issued by the Kadhi’s Court constitute a post judgment activity to enforce existing orders and not fresh proceedings. The Respondent believes that the Application is misconceived, incompetent, legally untenable, bad in law and brought in bad faith. and should be dismissed. 14.The Respondent further avers that the applicant is clearly attempting to delay, evade and obstruct the lawful execution of valid orders issued by the Kadhi’s court. 15.In addition, the Respondent avers that the Kadhi’s court has jurisdiction to hear and determine matters relating to child custody and maintenance under Article 170(5) of the Constitution of Kenya 2010, which falls within the ambit of personal status. And further that Section 90 of the Children Act 2022 specifically recognizes and preserves the jurisdiction of the Kadhi’s Courts in matters concerning children where all the parties profess the Muslim faith. 16.The Respondent avers that the Children Act does not oust or divest the Kadhi’s court of its jurisdiction over children’s matters but rather acknowledges that different courts and bodies may have concurrent jurisdiction over such matters. 17.In support of the above averments the Respondent made reference to the decision in AYM v HIK (Miscellaneous Case 171 of 2019), where the court held that Kadhi’s courts have jurisdiction to issue orders relating to custody and maintenance of children. 18.The Respondent also relies on section 73 of the Children’s Act which establishes that the Children’s court does not confer exclusive jurisdiction on the Children’s court. 19.The Respondent avers that the Application is speculative, unsupported by credible evidence, fails to satisfy the established principles for the grant of the orders sought and is an abuse of the court process. Analysis and Determination 20.The question of the jurisdiction of the Kadhi’s Court vis-à-vis the Children’s Court, particularly in relation to matters concerning child custody and maintenance, remains unsettled in Kenyan jurisprudence. While Article 170(5) of the Constitution confers jurisdiction upon the Kadhi’s Court to determine questions of Muslim law relating to personal status, marriage, divorce, or inheritance, the precise scope and meaning of “personal status” remains undefined by Kenyan courts. 21.A key unresolved issue is whether disputes relating to children arising from Muslim marriages, including custody, maintenance, and parental responsibility, fall within the ambit of “personal status” so as to confer jurisdiction upon the Kadhi’s Court, or whether such matters fall exclusively within the jurisdiction of the Children’s Court established under the Children Act. 22.Courts of concurrent jurisdiction have made various determinations on the jurisdiction of the Kadhi’s Court with respect to custody and maintenance of Children. Some courts have adopted the view that custody and maintenance are matters of personal status governed by Muslim law and therefore fall within the jurisdiction of the Kadhi’s Court, while others have held that such matters are governed by the best interests of the child principle and the statutory framework under the Children Act, thereby placing them within the exclusive jurisdiction of the Children’s Court. Consequently, the legal position remains unsettled. The Court of Appeal is yet to make a definitive declaratory pronouncement on the matter. 23.The divergence in judicial decisions arises from the differing approaches to constitutional and statutory interpretation. One school of thought adopts a literal interpretation of Article 170(5) of the Constitution, limiting the jurisdiction of the Kadhi’s Court to the matters expressly stated therein. The other adopts a purposive approach, seeking to give effect to the constitutional intention behind establishing the Kadhi’s Courts and recognizing the role of Muslim law in determining matters affecting Muslim families. 24.Against the above background, this Court must therefore examine the jurisdictional relationship between the Kadhi’s Court and the Children’s Court in matters of child custody and maintenance, the Constitutional and statutory framework governing the two courts, and the competing judicial approaches that have emerged and consider the applicable legal principles and precedents with a view to determining the approach that best accords with the Constitution, the Children Act, and the protection of the best interests of the child. The Law The constitution}} of Kenya, 2010 25.The Constitution of Kenya, 2010, confers powers to the Kadhi’s Court under Article 170(5) as follows:Article 170:“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 the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.” 26.The above provision is couched in mandatory terms and set the limit on the areas within which the Kadhi’s Court would exercise jurisdiction. 27.Whereas the Constitution does not explicitly grant the Kadhi's Court authority to determine custody and maintenance of Children in a Muslim marriage, issues touching on “personal status” may be interpreted in appropriate instances to include family related issues such as Children matters. This is more so where the issues for determination are connected and incidental to the primary suit before the Kadhi’s court. In such instances the Court must apply the principle that the best interest of the child is paramount, as more particularly expressed under Article 53(2 of the Constitution, which states as follows:Article 53(2): “A child’s best interests are of paramount importance in every matter concerning the child.”The Kadhis’ Court Act, cap 11 of the Laws of Kenya 28.From its preamble, this is an Act of Parliament to prescribe certain matters relating to Kadhis' Courts under Article 170(3) of the Constitution, to make further provision concerning Kadhis' Courts, and for purposes connected therewith and purposes incidental thereto. The Jurisdiction of the Kadhi’s Court is granted under Section 5 of the Kadhis’ Court Act which provides as follows:“Sec 5 ‘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.” 29.The Kadhi’s Court Act reiterates the provisions of the Constitution regarding the jurisdiction of the Kadhis’ Court. Again, it does not have express provisions on children matters. However, courts have time and again inferred that personal status may involve children matters such as custody and maintenance taking into account the purposive approach of interpretation which I will address hereinafter The Children’s Act, 2022 30.From its preamble: it is an ACT of Parliament to give effect to Article 53 of the Constitution; to make provision for children rights, parental responsibility, alternative care of children including guardianship, foster care placement and adoption; to make provision for care and protection of children and children in conflict with the law; to make provision for, and regulate the administration of children services; to establish the National Council for Children’s Services and for connected purposes. 31.91(2) of the Children’s Act is relevant for purposes of this Application. It provides as follows:(2)Subject to any rules or directions made or issued by the Chief Justice, where under any other written law any matter involving a child is required to be heard by a Court other than a Children’s Court, that other Court shall, for the purposes of that matter, be deemed to be a Children’s Court, and shall be bound by the provisions of this Act.” 32.From the above provision, it is my view that Section 91(2) of the Children Act, is not strictly exclusive, as the provision recognizes that matters relating to children may be determined by other courts where such jurisdiction is conferred by law. Such conferment may occur through legal mechanisms including directions issued by the Hon Chief Justice through Gazette Notices designating courts or judicial officers to preside over children matters. 33.In Kenya, the Chief Justice has exercised this mandate by issuing Gazette Notices designating magistrates to preside over matters involving children within designated Children’s Courts. Though the Kadhi’s Court has not been similarly gazetted or designated as a court authorized to exercise the jurisdiction of the Children’s Court, it falls within the category of subordinate Courts, under the Constitution. Case Law 34.As stated hereinabove, conflicting authorities on this subject have emerged. In, AMW v HAW [2025] KEHC 9006 (KLR), the High Court at, Marsabit, on appeal held as follows:“27.The provisions of Article 170(5) of the constitution and Section 5 of the Kadhi Courts Act, Cap 11, are couched in mandatory terms and set the limit on the areas within which the Kadhi’s Court would have jurisdiction. The term ‘shall’ is used. It is also noted that nowhere in the Kadhi’s Act does it mention that the court shall deal with issues of custody and child maintenance. Therefore, in my view, it is clear that the drafters of the above provisions of the law never intended the Kadhi’s Court to handle matters relating to custody and maintenance of children, and nothing prevented them from expressly stating so.Further, the Children’s Act, 2022 (No 29 of 2022) provides a comprehensive legal framework for child protection and aligns our law with international standards, including the UN Convention on the Rights of the Child. The said Act also gives effect to Article 53 of the Constitution of Kenya, which outlines various children's rights, including the right to education, healthcare, and protection from abuse and exploitation. It also provides for parental responsibility, alternative care, children in need of care and protection, as well as for children in conflict with the law.In AAI vs HAD [2018] KEHC 9619 Eklr, the High Court on Appeal held that:“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.” 35.In the case of ZUDG v SJKUR [2020] eKLR) HCCA 85 of 2017 the High Court, Ali-Aroni, as she then was, held as follows:“.......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” Purposeful Rule Approach 36.Applying the purposive approach and the broader picture, I hold the view that indeed the Kadhi’s court has jurisdiction to handle children matters based on the interpretation of the phrase “personal status” which is mentioned both in the Constitution and the Kadhi’s courts Act. 37.Issues involving maintenance and custody of children are matters connected and incidental to the jurisdiction of the Kadhi’s Court and can be heard in Divorce proceedings before the Kadhi’s court. Conversely, standalone proceeding regarding custody and maintenance of children, would go to the Children’s court as opposed to the Kadhi’s court. 38.Having addressed the relevant legal principles, I now turn to consider the merits of the instant Application, based on the grounds relied upon, the affidavit evidence on record, the annexures thereto and the oral submissions of learned Counsel on record for the parties. 39.The following facts are not in dispute:a.That the parties herein, both represented by Counsel, actively participated in proceedings before the Kadhi’s Court in KCDC E.157 of 2024, Maka Ali Shamasdin v Mohamed Said Alambo Nairobi Kadhi’s. The Applicant chose the option of an application praying for transfer of an already concluded matter. I am of the view that the applicant was to file an appeal if they were challenging or opposed to the Judgment delivered by the Kadhi’s court.b.That the rights of the parties in relation to the issue about custody and maintenance of the children of the marriage were fully determined in a judgment delivered by the Kadhi’s court on 04.03.2025.c.That during proceedings before the Kadhi’s Court parties recorded a partial consent on custody where they agreed that the Respondent herein will have physical custody and both parties will have joint legal custodyd.That the issue of maintenance was determined by the Kadhi’s Court to the effect that the Applicant herein will pay a monthly upkeep of Ksh.30,000/-e.That the Applicant has complied with the judgment of the Court until the month of May 2026, when he defaulted in addition to falling into arrears.f.That a NTSC was issued by the Kadhis’s Court against the Respondent dated 2nd.6.2026g.After the issuance of the said NTSC, the Applicant filed the current Application seeking to transfer the matter from the Kadhi’s Court to the Children’s Court 40.From the above, I make a finding that this Application is clearly an afterthought. Whereas the issue of jurisdiction would ordinarily be raised at any time, the Applicant submitted himself to the jurisdiction of the Kadhi’s Court and not only consented to the issue of custody but subsequently complied with the final orders of the Kadhi’s court. 41.Further, I find that the rights of the parties, including on custody and maintenance were determined with finality by the Kadhi’s Court. None of the parties has expressed dissatisfaction by way of preferring an appeal. 42.The question that must arise is: For what purpose will the transfer of the matter from the Kadhi’s Court to the Children’s Court serve? In my view there is nothing left for determination by the Children’s Court. The Applicant has not at all explained what fundamental question of law the Children’s Court is set to determine. He also has not explained what injustice he seeks to correct or avert from Children Court which in any event is not an appellate Court against the decision of the Kadhi’s Court. 43.In the foregoing, I make a finding that the Application, if allowed would only re-open a concluded matter and perpetuate litigation, which in my view will serve against the interest of the children of the marriage. 44.The upshot therefore is that the Chamber Summons Application dated 05.06.2026 is without merit and is hereby dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED ON 10TH DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn The Presence Of:Odero For The ApplicantNo Appearance For The RespondentCourt Assistant: Aggrey Ochieng