A courtroom in Isiolo became the setting of a legal battle over faith, jurisdiction, and marital dissolution.
What began as an ordinary divorce dispute evolved into a constitutional question of whether a Kadhi’s Court can hear a divorce case when one of the parties has renounced Islam.
The case arose earlier this year after a woman, identified in court documents as Arbe Orre, filed for the dissolution of her marriage before the Chief Magistrate’s Court in Isiolo.
The Respondent (husband), Abdullahi Osman Ali, instead filed a separate divorce petition before the Isiolo Kadhi’s Court, seeking the same relief.
This duplication of proceedings set the stage for a jurisdictional dispute that would test the boundaries between civil and religious courts.
In response to her husband’s petition, Orre raised a preliminary objection before the Kadhi’s Court, arguing that the matter was sub judice (already pending before another competent court) and that the Kadhi’s Court lacked jurisdiction to hear it.
She contended that since she had ceased to profess the Islamic faith, she could not be compelled to participate in proceedings governed by Muslim law.
Her argument was anchored on Article 170(5) of the Constitution of Kenya and Section 5 of the Kadhis’ Court Act, both of which limit the Kadhi’s Court’s jurisdiction to questions of Muslim law relating to marriage, divorce, or inheritance in proceedings where all parties profess the Muslim religion and submit to the Kadhi’s jurisdiction.
“The Honorable Kadhi heard the objection and, in a ruling delivered on June 20, 2024, dismissed it. It is the said ruling that has given rise to this appeal,” court documents state.
Dissatisfied, Orre appealed to the High Court in Isiolo, setting in motion of challenge to the Kadhi's decision on two principal grounds:
“That the Honorable Court (Kadhi) erred in law in failing to find that the matter was sub-judice. and that it erred in assuming jurisdiction contrary to Article 175(5) of the Constitution of Kenya and the Kadhis’ Court Act,” stated part of the judgment.
In her written submissions before Justice Sophie Chirchir, the appellant reiterated that she had abandoned the Muslim faith and did not wish to submit to the Kadhi’s court jurisdiction.
She relied on established legal precedents, which outlined the three conditions that must coexist for a Kadhi’s Court to assume jurisdiction.
These are that the subject matter must relate to personal status, marriage, divorce, or inheritance; the parties must profess the Muslim faith; and both parties must submit to the jurisdiction of the Kadhi’s Court.
She also cited previous court decisions, both of which emphasised that jurisdiction in the Kadhi’s Court is consensual and cannot be imposed on an unwilling party.
The husband did not file submissions to oppose the appeal.
The High Court therefore relied on the record of proceedings and the appellant’s submissions to make its determination.
Upon examining the case, the judge noted that a preliminary objection must raise a pure point of law that can dispose of a suit.
The issues of jurisdiction and sub judice, the court held, clearly qualified as such.
On the question of sub judice, the judge observed that both cases in both courts sought dissolution of the same marriage.
To that extent, the High Court held that the Kadhi’s case was sub judice and should not have proceeded.
The Kadhi, the court said, “erred by purporting to proceed with the determination of a matter already live before another court.”
Turning to the second issue — whether the Kadhi had jurisdiction — the judge conducted a detailed analysis of Article 170(5) and Section 5 of the Kadhi’s Court Act, underscoring that both provisions make it mandatory for all parties to profess Islam and submit to the Kadhi’s authority for the court to have jurisdiction.
“The salient facts in this case are that the parties contracted a Muslim marriage; the Appellant has since abandoned the Muslim faith, and hence, both parties are not Muslims, and further, the Appellant has expressly stated that she does not wish to submit to the jurisdiction of the Kadhi’s court,” Justice Chirchir noted.
Quoting the Court of Appeal’s previous pronouncement, Justice Chirchir observed:
“Professing the Islamic faith and voluntarily submitting to the jurisdiction of the Kadhi’s Court are absolute preconditions for the application of Islamic law. If it were otherwise, the constitutional safeguard in Article 170(5) would be meaningless.”
In conclusion, the High Court found merit in the appeal and
proceeded to set aside the Kadhi’s ruling delivered on June 20, 2024.
