Kadhis Courts in Kenya – Jurisdiction, Procedures, and Key Rulings on Muslim Law

Kenya’s Kadhis Courts are a unique judicial institution established under the Constitution of Kenya (2010) to adjudicate matters of Muslim personal law, including marriage, divorce, inheritance, and personal status. These courts blend Islamic Sharia principles with Kenya’s broader legal framework, ensuring that Muslim citizens can resolve disputes according to their faith.

---

1. Legal Basis and Jurisdiction of Kadhis’ Courts

Constitutional Recognition

Article 170(5) of Kenya’s Constitution states:

“The 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.”

This means:

• Only Muslims can bring cases to the Kadhis Courts.
• The courts do not handle criminal or commercial disputes—only family and personal law matters.
• Their rulings must align with Islamic jurisprudence (Sharia) but remain subordinate to Kenya’s secular legal system5.

Key Laws Governing Kadhis’ Courts

• Kadhis’ Courts Act (Chapter 11) – Outlines court structure and jurisdiction.
• Muslim Family Law of Kenya (2010) – Covers marriage, divorce, and inheritance.
• Kadhis’ Courts (Procedure and Practice) Rules (2020) – Governs court processes.

---

2. Marriage Under Islamic Law in Kenya

Requirements for a Valid Muslim Marriage

A marriage in the Kadhis’ Courts must meet five key conditions:

1. Consent of the bride and her guardian (waliy)
2. Offer and acceptance (Ijab & Qabul)
3. Dowry (Mahr)
4. Two Muslim witnesses
5. No legal impediments (e.g., existing marriage, prohibited relationships).

Proxy and Virtual Marriages

A landmark 2022 ruling confirmed that:

• A bride does not need to be physically present if she consents through a guardian.
• Proxy marriages (where one party is represented) are valid.
• Virtual marriages (via video call) are also recognized under Islamic law.

---

3. Divorce Procedures in Kadhis’ Courts

Types of Divorce Recognized

1. Talaq (husband-initiated divorce) – Must be declared clearly.
2. Khul’ (wife-initiated divorce) – Often requires returning the dowry.
3. Fasakh (court-ordered annulment) – Due to abuse, neglect, or impotence.
4. Li’an (divorce due to adultery allegations without witnesses).

Key Considerations

• Iddah (waiting period) – A divorced woman must wait three menstrual cycles before remarrying.
• Maintenance (Nafaqah) – Husbands must support ex-wives during Iddah.
• Child custody (Hadanah) – Typically granted to mothers for young children.

---

4. Inheritance Under Islamic Law

Key Principles

• Fixed shares for heirs (e.g., sons inherit twice as much as daughters).
• Wills (Wasiyyah) can only dispose of up to 1/3 of the estate.
• Non-Muslim relatives cannot inherit unless specified in a will.

Challenges in Kenyan Courts

Some disputes arise when Islamic inheritance rules clash with Kenya’s secular Succession Act. The High Court sometimes intervenes when parties contest the Kadhi Court’s rulings.

---

5. How Kadhis’ Courts Differ from Secular Courts

Aspect	Kadhis’ Courts	Secular Courts
Jurisdiction	Only Muslim personal law	All civil/criminal matters
Applicable Law	Sharia (Hanafi, Shafi’i, Maliki)	Kenyan statutory law
Appeals	High Court (on procedural grounds)	Court of Appeal
Marriage Recognition	Only Islamic marriages	Civil, customary, and Islamic marriages

---

6. Recent Controversies & Reforms

• Custody Battles – Some argue Kadhis’ Courts lack explicit jurisdiction over child custody, leading to conflicts with the High Court.
• Women’s Rights – Critics claim inheritance and divorce rulings sometimes disadvantage women, though reforms are ongoing.
• Digitalization – The judiciary is adopting e-filing and virtual hearings to improve access.

---

Conclusion

These Courts play a vital role in administering Islamic personal law while coexisting with the secular judiciary. Understanding their jurisdiction, procedures, and key rulings helps Muslims navigate marriage, divorce, and inheritance matters effectively.

For those involved in such cases, consulting a qualified Kadhi or Islamic lawyer ensures compliance with both Sharia and Kenyan law.