Kadhi's court to keep off Christian, Muslim divorces

Kadhi's courts cannot determine a divorce case between a Muslim and Christian couple, the High Court has ruled while restoring a marriage between a Catholic woman and her Muslim husband.

Justice Aggrey Muchelule has also held that the Kadhi's court has no jurisdiction to hear matters concerning custody and maintenance of children.

The judge made the findings while ruling on an appeal by a Christian woman who had converted to Islam so as to be able to marry her Muslim lover.

But, after solemnising their union, the woman, named as Ms VK in court documents, converted back to her Christian religion, a move that angered the man, named as Mr SA.

As a result, Mr SA filed for divorce at a Kadhi's court in Kibera.

The couple got married in 2008 under Islamic law and, in the course of the marriage, they got a child.

On April 10, 2017, the man filed a petition before the Kadhi’s court in Kibera seeking dissolution of the marriage and custody of the child. The woman did not defend the divorce petition.

The Kadhi named D.S. Dabasoo heard the man on April 28, 2017 and on July 20, 2017 delivered a judgment dissolving the marriage.

In the judgment, the man was also granted legal custody of the child with visitation rights to the woman.

The man testified that when he met the woman, she was a Christian but somewhere along the line, she converted to Islam and a conversion certificate was issued.

'SHORT DRESSES'

After the couple stayed together for several years, he said, the woman changed. She began wearing short dresses, including mini-skirts.

Mr SA found out that she was also attending prayers at a Catholic church.
When he confronted her, the response was that she had converted to Islam to get a husband. And now that she had got him, she had decided to go back to Christianity.

“She had abandoned the Muslim religion. With that evidence, the Kadhi’s court ought to have downed its tools, as it were. It had no jurisdiction over the marriage. It could not, therefore, dissolve the marriage,” said Justice Muchelule.

He added that under article 170(5) of the Constitution, the Kadhi’s court’s jurisdiction is limited as it can only deal with questions of Muslim law relating to personal status, marriage, divorce, or inheritance.

Article 170(5) of the Constitution provides that “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 court.”

“It has no jurisdiction to hear and determine matters concerning children. Under section 73 of the Children's Act, Children’s courts have been constituted under the Act to hear all matters concerning children, including custody and maintenance of children. Such courts are, by a Gazette Notice, appointed by the Chief Justice,” said Justice Muchelule.

He found there was no evidence that the Kadhi’s court that heard and determined the dispute was a children’s court. He, therefore, found that the Kadhi’s court had exceeded its jurisdiction.

“It is also trite that, since jurisdiction goes to the question of judicial authority to decide a matter on merits, it can be properly raised by a party or the court at any stage, including on appeal,” said Justice Muchelule.

In the appeal, the woman had argued that the Kadhi's court could only have jurisdiction over the marriage if both parties professed Islamic faith.

The man was opposed to the appeal on grounds that the wife should have raised the issue of jurisdiction before the trial court and not at the appeal stage.

His case was that the Kadhi’s court had power to grant child custody, as that was in the best interest of the child under sections 4(2) and 76(1) of the Children's Act, 2001.