Kenya Judgment

Kadhis Courts · Kadhis Court at Garsen

MS v AH [2017] KEKC 3 (KLR)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court found that the applicant had proved, through her evidence and that of her witness, that the respondent had divorced her by pronouncing three talakas in the presence of a witness. The court accepted this as sufficient ground for dissolution of the marriage under Islamic law. Regarding custody, the court noted that the children were already under the care of the respondent and saw no reason to disturb this arrangement, granting custody to the respondent with reasonable access to the applicant. The court also ordered the respondent to pay the outstanding dowry within three months.

Court disposition

Marriage dissolved; custody of children granted to respondent; dowry payment ordered.

Orders

  • The respondent shall pay KES 3,000 as dowry within 3 months from 5th September 2017.
  • A divorce certificate shall be issued to the applicant as of 5th September 2017.
  • Custody of the children is granted to the respondent; the applicant shall have reasonable access to them.

02

Material facts

Parties

MS

Applicant

AH

Respondent

Amounts and remedies

  • Dowry Ordered to Be Paid: KES 3,000

03

Procedural history

  1. Posture

    Divorce Cause / Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant alleged that the respondent was cruel, abusive, and assaulted her. She claimed the respondent had not paid dowry and had divorced her by pronouncing three talakas in the presence of a witness. She sought dissolution of the marriage and issuance of a divorce certificate.
Respondent
The respondent denied the allegations of cruelty and divorce, asserting instead that the applicant divorced him. He questioned whether the applicant had the right to divorce him and expressed a desire for reconciliation, requesting the court to convince the applicant to return.

05

Court’s reasoning

  1. 01

    Islamic law as applied in the Kadhis Court

    A marriage may be dissolved upon proof of divorce (talak) pronounced by the husband in the presence of witnesses, as recognized under Islamic law.

  2. 02

    Islamic law and practice in the Kadhis Court

    Custody of children may be determined based on the best interests of the child and current caregiving arrangements.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant had proved, through her evidence and that of her witness, that the respondent had divorced her by pronouncing three talakas in the presence of a witness. The court accepted this as sufficient ground for dissolution of the marriage under Islamic law. Regarding custody, the court noted that the children were already under the care of the respondent and saw no reason to disturb this arrangement, granting custody to the respondent with reasonable access to the applicant. The court also ordered the respondent to pay the outstanding dowry within three months.

Obiter and limits

  • The court observed that the evidence clearly established the pronouncement of divorce in the presence of a witness.
  • The court noted that the children were already under the care of their father and found it appropriate for them to remain there.

Court disposition

Marriage dissolved; custody of children granted to respondent; dowry payment ordered.

  • The respondent shall pay KES 3,000 as dowry within 3 months from 5th September 2017.
  • A divorce certificate shall be issued to the applicant as of 5th September 2017.
  • Custody of the children is granted to the respondent; the applicant shall have reasonable access to them.

Source and reliance status

Kadhis Courts

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Judgment reading view

Judgment text

The complete available source text.

Source document

Kadhis Courts

Judgment

[2017] KEKC 3 (KLR)

REPUBLIC OF KENYA

IN THE KADHIS COURT AT GARSEN

DIVORCE CASE NO 42OF 2017

MS....................APPLICANT

VS

AH..................RESPODENT

JUDGEMENT

In this divorce cause dated 10th JULLY 2017 the plaintiff prayed for:

1- Dissolution of the marriage.

2- Custody of the children be granted to the Respondent.

The applicant sought that her life with the respondent has never been a bed of roses as he has been very cruel abusive assaulting her. The plaintiff said that the respondent not yet pay dowry. In addition to that He divorced her three talakas in the presence of witness, but now is dining. She is requesting the court to be granted her divorce and the divorce certificate to be issued.

The applicant availed two witnesses one of them refused to appear before this court.

PW1 Makorani Wachu Bajaro stated that he knows the couple one day they visited him at his house, The respondent divorced his wife before him and the witness advised him to divorce her in the prance of her parents.

On the other hand the respondent denied all applicants allegation saying that the applicant divorced him. The respondent wanted to know if the applicant has a right to divorce him. The respondent sought that he still need his wife requesting this court to convince her to come back.

Upon hearing both parties herein and the witness produced by the applicant the matters to be determined are:

(a)Is the honorable court entitled to dissolve the marriage as per plaintiff’s prayers?

(b) Custody and maintenance of the children.

Returning to issue (a) whether this court can dissolve the marriage as per plaintiff’s prayers? It is clear to this court that the evidence adduced by the applicant has proved that the respondent has divorced applicant in the presences of the witness as clearly in the proceeding.

(b) Custody and maintenance of the children.

A spar now the children are under the care of their father and therefore let them remain there.

On this basis I hereby order that:

1- It is compulsory for the respondent to pay ksh 3000/= as the dowry within 3 months from today 5th September 2017.

2- Divorce certificate to be issued today 5th September 2017.

3- Custody of the children is given to the respondent and the applicant shall have reasonable access to them.

These are orders of this court.

R/ A -30 days. Read and delivered this 5th day of September 2017, in the presence of :

MURSAL .M .SIZI- KADHI 11

Court Assistant – Guracho Abdillah

Applicant

Respondent

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