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

ISSN: 2521-2605
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.