The Kadhis and the decisions they make clearly contribute to an understanding of how Islamic law is interpreted and applied amongst Muslim societies in Kenya.

How are Kadhis trained? What standard criteria regulates their appointment? What role do Kadhis play in the Kenyan legal system? These questions beg responses. Kadhis are judicial officers in the Kenyan legal system. The Kenyan legal system, though deeply rooted in the English common law tradition acknowledges Islamic Law as part of its legal formation. The Constitution of Kenya, statutory laws and judicial decisions by the Superior Courts recognize the role of Islamic Law in the construction and administration of justice. The Constitution of Kenya is the Supreme Law of the land. It is a negotiated document forming a social contract between the Individuals and the State. Muslims may disagree with its claim to supremacy due to their believe in the Shari’ah as the embodiment of divinely ordained Truth. This, however, does not debar them from acknowledging the Constitution as a political fact they need to live with. Article 24(4) interprets equality to the extent strictly necessary for application of Muslim law in the Kadhis Court. Article 169(1)(b) of the Constitution establishes the Kadhis Courts as one of the Subordinate Courts. Article 170 is devoted entirely to explanation of the courts’ officers, their qualifications, appointment and their jurisdiction.

The Kadhis’ Court Act, though appearing obsolete, is a statute that seeks the explain the constitutional principles underpinning the Kadhis Courts. Other laws in which there is a mention of some aspects of Islamic Law include Evidence Act, The Law of Succession Act, the Marriage Act 2014 and The Matrimonial Property Act 2013. Article 170 of the Constitution of Kenya 2010 provides that there shall be a Chief Kadhi and other Kadhis, not fewer than three, who are empowered to hold a Kadhi’s court having jurisdiction in Kenya. It is the parliament that prescribes the number of Kadhis to be appointed in Kenya. As of now, the Kadhis’ Court Act has not been amended to include this provision. Kadhis Courts are now spread all over the country. This is guided by the constitutional provision that it has jurisdiction in Kenya, and not over the 10 mile coastal strip as historically understood. It recognizes the fact that Muslims, the court’s clients, are now spread in different parts of the country.

The same Article 170 enumerates  the minimum qualifications for a person to be appointed as Kadhi. The Kadhis must profess the Muslim religion. They must also possess such knowledge of the Muslim law applicable to any sects of Muslims as qualifies them, in the opinion of the Judicial Service Commission(JSC), to hold a Kadhi’s Court. It is the JSC that appoints, remunerates, disciplines and/or dismisses the Kadhis in cases of professional impropriety. The Judicial Service Commission also determines what academic and other professional qualifications are required for one to hold this office. In the last recruitment of Kadhis, the JSC while advertising for the posts set certain qualifications.

The persons must:
•    Have a degree in Islamic Law
•    Profess the Islamic Faith
•    Be able to communicate in English, Kiswahili and Arabic
•    Be proficient in Computer Applications
•    Possess the qualifications set out in Chapter Six(6) of the Constitution of Kenya

In addition to the above, the person must possess interpersonal, drafting, negotiation, communication, supervisory, leadership/managerial skills as well as a team player.

These qualifications represent a radical departure from a past where the Chief Kadhi monopolized the appointment of Kadhis. It also signifies that the Kadhi today is more qualified to perform judicial as well as administrative duties of the court compared to the yesteryears. The progressive nature of the constitution demands that the officers interpreting the law are alive to the emerging issues and trends in the legal world.

Kadhis’ courts determine civil matters. The substantive law applied in the courts derives from   the four Sunni schools of Islamic Law (Madhhabs) and the laws of other Muslim sects like Shia’  and the Ismai’li. The procedural law applied in the courts currently is the Civil Procedure Act, though there are efforts to make rules
of procedure for the Kadhis’ Courts as provided for in the Kadhis’ Courts Act. The status of the Kadhis’ Courts is  that of Subordinate Courts. The Kadhis’ judgements are not binding except to the courts that pronounced them. We do not have an Appeals Court within the Kadhis’ Court structure. Neither do appeals go to the Chief Kadhi. Appeals lie at the High Court on any matter pertaining to the jurisdiction of the Kadhis ‘ Courts. Appeals in succession matters with regard to points of Muslim law are finalized in the Court of Appeal. The Appellant must essentially seek leave to appeal from the High Court.

The law and rules of evidence in the Kadhis’ Courts shall be those applicable under the Muslim law provided that the court does not discriminate on who gives evidence. The court has also to determine the credibility of evidence presented before it and ensures that it does not occasion a failure of justice. The jurisdiction of the Kadhis’ Courts as provided for in Article 170 (5) of the Constitution of Kenya 2010 is to determine questions of Muslim law relating to personal status, marriage, divorce or inheritance in which all the parties profess the Muslim religion and submit to the jurisdiction of  the Kadhis’ courts. Among the responsibilities and duties performed by the Kadhis’ include:

•    Hearing and determination of disputes relating to marriage, divorce, inheritance among Muslim families
•    Solemnizing and registering Muslim marriages
•    Supervising pronunciation of divorces and registering them.
•    Supervising registries under them
•    Keeping records of all cases and submitting returns to the Registrar, Magistrates Courts.
•    Submitting records of registered marriages and divorces to the Chief Kadhi.
Kadhis do not hear criminal cases or commercial disputes among Muslims. These are in the domain of Magistrates Courts and the High Courts. The Kadhis are also not mandated by any law to announce the sighting of the moon during the season of Ramadhan and Hajj. That is an extra- judicial practice that has lay in the Office of the Chief Kadhi over the years.
Among the issues that the Kadhis hear and determine include those in the following categories:

  • Marriage issues: These include issues pertaining to validity of marriage, rights and obligations of spouses, rights of children, paternity disputes, legal guardianship and validity of pre-nuptial agreements and marital discord.
  • Divorce issues: These include issues pertaining to determination of the validity of an extra-judicial divorce, hearing divorce petitions, eddah petitions, nafaqah (maintenance) during eddah, child maintenance and custody upon divorce of spouses, mataa’ (consolatory gift) and matrimonial property.
  • Inheritance issues: These include determination of the legal heirs of a deceased’s estate, legal shares of each heir, administration of the estate, validity of wills (wasiyyah) and gifts (hiba), and any other disputes pertaining to the estate of the deceased.

It is interesting to note that when handling matters of family property, there is no limit as to the value of the property that is the subject of inheritance determination in the Kadhis’ Courts. A Kadhi can hear an inheritance matter of property whose value is from ten shillings to billions of shillings, unlike other lower courts. The Kadhi’s Court is a court like any other court. It is approached officially by plaint or petition. It is not a PR office where legal advice is sought or where matters pertaining to administration of mosques and other religious activities are discussed. A Kadhi is not a religious leader. He is a magistrate. His training in Islamic Law does not make him a religious leader of Muslims. He has no supervisory role over anyone  or anything, except for matters pertaining to court proceedings. The Kadhi speaks through rulings, orders and judgements in court. His word outside court proceedings does not bind anyone.

Hon. Abdulaziz Kunyuk Tito is the new Kadhi at Isiolo Law Courts.

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