This archive report was first published on 5 July 2019.
On July 4, 2019, the High Court in Garissa made a significant ruling that Kadhis' Courts do not have the jurisdiction to hear and determine issues relating to custody and upkeep of children.
Justice Charles Kariuki, who presided over the case, stated that the drafters of the law never intended Kadhis' Courts to handle matters relating to custody and maintenance of children.
He further emphasized that the Children Act 2001 applies to all children, regardless of their religious affiliations or cultural background.
According to the ruling, Kadhis' Courts have jurisdiction only in matters relating to personal status, marriage, divorce, or inheritance, where all parties profess the Muslim faith.
Justice Kariuki noted that even if Kadhis' Courts had jurisdiction, the court would still have no power to compel a party to appear before it if they do not submit to the jurisdiction as stipulated in Article 170 (5) of the Constitution and section 5 of the Kadhis' Courts Act.
He allowed the appeal on the aspect of custody and maintenance of the child but dismissed it on the challenge on divorce and dowry payment.
The court ruled that the respondent is at liberty to refer the dispute on custody and maintenance of the child before a Children's Court.
