Prevoius Post Trust, Legacy and Faith: Family Trusts in Conventional and Islam Law
The jurisdiction of the Kadhis Court in Kenya is constitutionally anchored in Article 170(5) of the Constitution of Kenya, 2010. The provision limits the court’s jurisdiction to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance, and only in proceedings where all parties profess the Muslim religion and submit to the jurisdiction of the Kadhis Court.
This provision performs two important functions. First, it constitutionally recognises the Kadhis Court as a specialised court applying Islamic law substantively. Second, it expressly restricts that jurisdiction, ensuring that the court neither exercises general civil jurisdiction nor adjudicates disputes involving non-muslims or unwilling parties. However, while Article 170(5) identifies “personal status” as a core head of jurisdiction, it does not define what the term entails.
This silence has generated interpretive challenges and has required courts to clarify the meaning and scope of “personal status” through judicial reasoning.
Neither the Constitution of Kenya nor the Kadhis Courts Act provides a definition of the term personal status. The Kadhis Courts Act merely operationalises the constitutional provision by reiterating the limits of jurisdiction without elaboration. As a result, litigants and courts are often left to infer the scope of personal status from Islamic law principles, comparative jurisprudence, and judicial precedent.
This lack of statutory clarity has practical consequences. Jurisdictional objections are frequently raised, especially in matters touching on children, matrimonial property, maintenance, or procedural questions, with parties arguing that such disputes fall outside “personal status”. The absence of a clear definition therefore risks uncertainty, forum shopping, and inconsistent outcomes.
Kenyan courts have responded to this gap by developing jurisprudence that gives content to the concept of personal status, guided by Islamic law and comparative legal systems.
A recent and instructive discussion of jurisdiction under Article 170(5) appears in the ruling of Hon. Suqyan Hassan Omar (The Acting Chief Kadhi) in Malyun Muzahim Bajaber v Suhayb Yusuf Timami (KCDC/E157/2023).
In this case, the respondent challenged the jurisdiction of the Kadhis Court by asserting that he did not submit to its jurisdiction, relying on a literal reading of Article 170(5). The court was therefore called upon to determine whether a mere assertion of non submission was sufficient to show jurisdiction.
Hon. Suqyan Omar rejected a purely literal interpretation of the submission requirement. He reasoned that interpreting submission mechanically would undermine the very purpose for which the Kadhis Court was established. The court held that jurisdiction cannot be defeated by a bare statement of non-submission made without compelling reasons, particularly where both parties are Muslims and the dispute falls squarely within matters governed by Islamic law.
Importantly, the ruling adopts a functional and purposive approach to jurisdiction. It affirms that personal status disputes arising from Muslim marriage relationships fall within the Kadhis Court’s mandate, and that constitutional provisions must be interpreted in a manner that advances access to justice rather than renders the court redundant.
This decision contributes to the evolving understanding of personal status by emphasising substance over form and by recognising the Kadhis Court
Further judicial clarity on the meaning of personal status is found in O S A v M S A (Civil Case No. 3 of 2015) [2015] KEKC 16 (KLR), a decision by the Late Hon. Abduhhalim H. Athman, then Chief Kadhi.
In that case, the court relied on comparative authority, particularly section 13 of the Egyptian Judicature Act of 1949, to define personal status. According to the adopted definition, personal status encompasses:
- Legal capacity of individuals;
- Family matters such as marriage, marital rights and obligations, dowry, and matrimonial
property; - Divorce, dissolution, and separation;
- Paternity, parenthood, custody, and maintenance;
- Incapacity, guardianship, and declaration of death of missing persons;
- Inheritance, wills, and post-death transactions; and
- Issues relating to correction of lineage and adoption.
This expansive definition demonstrates that personal status is not limited to marriage and divorce in a narrow sense, but includes a wide range of family and relational matters traditionally governed by Islamic law.
Comparative Islamic legal systems provide useful guidance in understanding personal status jurisdiction. In the United Arab Emirates, Federal Law No. 28 of 2005 on Personal Status expressly defines personal status to include marriage, divorce, maintenance, custody, guardianship, and inheritance.
Unlike Kenya, the UAE adopts a codified and comprehensive approach, reducing ambiguity and jurisdictional disputes. The comparative experience illustrates that personal status in Islamic law is universally understood as encompassing family relations and individual legal capacity, rather than being confined to a narrow set of disputes.
The absence of a similar statutory definition in Kenya places a heavier interpretive burden on courts, but Kenyan jurisprudence has increasingly aligned itself with these broader Islamic law understandings.
The personal status jurisdiction of the Kadhis Court is constitutionally recognised but legislatively underdefined. Through judicial interpretation, particularly in decisions such as Malyun Muzahim Bajaber and O S A v M S A, Kenyan courts have given substantive meaning to the concept, drawing from Islamic law principles and comparative systems. An explicit statutory definition of personal status within the Kadhis Courts Act would enhance certainty, reduce jurisdictional disputes, and strengthen access to justice. Until such reform occurs, the courts’ purposive and context sensitive interpretation remains central to preserving the role of the Kadhis Court within Kenya’s plural legal system.
By Swaleh K.Yusuf
Advocate of the High Court and Islamic Investment Consultant
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