[2018] KEKC 7 (KLR)

[2018] KEKC 7 (KLR)

The court held that Article 170(4) of the Constitution confers jurisdiction on Kadhis Courts throughout Kenya, and this constitutional provision overrides any conflicting statutory limitations, including those in the Kadhis Courts Act and the Civil Procedure Act. The court found that Section 15 of the Civil Procedure Act does not apply to Kadhis Courts, and the Kadhis Courts Act merely confirms what is already provided in the Constitution. Therefore, the Nairobi Kadhis Court has jurisdiction to hear and determine the suit, and there is no basis for transferring the matter to the Eldoret Kadhis Court. The preliminary objection was dismissed accordingly.

Citation
[2018] KEKC 7 (KLR)
Parties
Respondent: SAK; Applicant: DA
Court
Kadhis Courts
Court Station
Kadhis Court at Nairobi (Kibera Law Courts)
Jurisdiction
Kenya
Judgment Date
3 September 2018
Case Number
Divorce Cause 106 of 2018
Procedural Posture
Divorce Cause / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed
Legal Topics
Territorial Jurisdiction, Kadhis Court Jurisdiction, Constitutional Supremacy
Source Language
English
Family and Children Civil Procedure Territorial Jurisdiction Kadhis Court Jurisdiction Constitutional Supremacy

Case Brief

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Parties

SAK

Respondent

DA

Applicant

Procedural Posture

Divorce Cause / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the Nairobi Kadhis Court has territorial jurisdiction to hear and determine the divorce suit between the parties.
  2. 2 Whether the suit should be transferred to the Eldoret Kadhis Court based on the location of marriage and residence of the parties.

Ratio Decidendi

The court held that Article 170(4) of the Constitution confers jurisdiction on Kadhis Courts throughout Kenya, and this constitutional provision overrides any conflicting statutory limitations, including those in the Kadhis Courts Act and the Civil Procedure Act. The court found that Section 15 of the Civil Procedure Act does not apply to Kadhis Courts, and the Kadhis Courts Act merely confirms what is already provided in the Constitution. Therefore, the Nairobi Kadhis Court has jurisdiction to hear and determine the suit, and there is no basis for transferring the matter to the Eldoret Kadhis Court. The preliminary objection was dismissed accordingly.

Court Disposition

preliminary objection dismissed

Orders

  • The preliminary objection is dismissed.
  • Costs will abide the outcome of the main suit.