[2024] KEKC 19 (KLR)

[2024] KEKC 19 (KLR)

The court found that the Civil Procedure Act does not confer jurisdiction on Kadhis' Courts; rather, jurisdiction is determined by Section 4(2) of the Kadhis' Court Act. The absence of a Kadhi's Court in Kisii County does not preclude parties from accessing the nearest Kadhi's Court, in this case, Kericho. The...

Source-derived case information.

Citation
[2024] KEKC 19 (KLR)
Parties
Petitioner: NMO; Respondent: AHO
Court
Kadhis Courts
Court Station
Kadhis Court at Kericho
Jurisdiction
Kenya
Judgment Date
7 August 2024
Case Number
Matrimonial Cause E001 of 2024
Procedural Posture
Matrimonial Cause / Ruling on Preliminary Objection/application to Dismiss for Lack of Jurisdiction
Outcome
application dismissed
Judges
IN Nyaboga
Legal Topics
Matrimonial Jurisdiction, Territorial Jurisdiction, Kadhis Courts, Forum Selection, Burden of Proof
Source Language
english
Family and Children Civil Procedure Matrimonial Jurisdiction Territorial Jurisdiction Kadhis Courts Forum Selection Burden of Proof

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Summary, issues, holding and outcome

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Parties

NMO

Petitioner

AHO

Respondent

Procedural Posture

Matrimonial Cause / Ruling on Preliminary Objection/application to Dismiss for Lack of Jurisdiction

Legal Issues

  1. 1 Whether the Kadhi's Court at Kericho has territorial jurisdiction to hear the matrimonial cause between the parties.
  2. 2 Whether the alleged social relationship between the Petitioner and the presiding Kadhi disqualifies the Kadhi from hearing the matter.

Ratio Decidendi

The court found that the Civil Procedure Act does not confer jurisdiction on Kadhis' Courts; rather, jurisdiction is determined by Section 4(2) of the Kadhis' Court Act. The absence of a Kadhi's Court in Kisii County does not preclude parties from accessing the nearest Kadhi's Court, in this case, Kericho. The Applicant/Objector's argument that the suit should only be filed in Mombasa or Kisii is not supported by law, as the statutory framework allows for flexibility in accessing Kadhi's Courts. The court also held that the Applicant/Objector failed to prove the alleged social relationship between the Petitioner and the presiding Kadhi, and thus there was no basis for disqualification....

Court Disposition

application dismissed

Orders

  • The application/objector's preliminary objection is dismissed.
  • The matter shall proceed before the Kericho Kadhi's Court.