Contentious jurisdiction: The Kenyan Kadhis’ courts and their application of the Islamic law of custody and maintenance of wives and children
Author Jamil Ddamulira Mujuzi
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape, South Africa
Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 93 – 119
Article 170(5) of the Constitution of Kenya provides that ‘[t]he jurisdiction of a Kadhis’ 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.’ A provision to the same effect is also included in s 5 of the Kadhis’ Courts Act. It is clear that the Kadhis’ Courts have jurisdiction over marriage, divorce and inheritance and they have handed down many judgments dealing with these issues. Neither art 170(5) of the Constitution nor s 5 of the Kadhis’ Courts Act expressly permit or prohibit these courts from dealing with custody and maintenance matters. This approach is different from the one taken in other African countries such as Tanzania (Zanzibar) and Uganda, where the issues of custody and maintenance are expressly mentioned in the law on Kadhis’ Courts. As a result, there are conflicting decisions from the Kenyan Kadhis’ Courts and the High Court on the issue of whether the Kadhis’ Courts have jurisdiction over custody and maintenance matters. In this article, I illustrate how the Kadhis’ Courts and the High Court have dealt with the issues of custody and maintenance in Islamic law and I refer to Kenyan case law and the drafting history of art 170(5) to argue that the Kadhis’ Courts do not have jurisdiction over custody and maintenance issues. I rely on legislation and practice from other African countries to suggest ways in which the issue of the jurisdiction of the Kenyan Kadhis’ Courts in relation to custody and maintenance could be addressed.