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Kadhi’s Courts do not have jurisdiction over divorce where one party changes religion even after being married under Islamic law, the High Court ruled yesterday.

Justice Anthony Mrima ruled that once the marriage is under Islamic law and a certificate of marriage issued to the parties, the conversion of one of the parties to Christianity changes the fact that the marriage was a Muslim one.

Judgement was issued in a case where a woman applied for the transfer of her Divorce Petition at the Kadhi’s Court to the Chief Magistrate’s at Milimani for hearing and disposal.

The woman referred to as CAO had contended that although they got married under Islamic law on January 31, 2019, she has since changed her religion and converted to Christianity, which was her original faith.

She claimed her conversion to Christianity happened after she had filed the divorce, and therefore the Kadhis Court has no jurisdiction to hear and determine the cause.

Her estranged husband opposed the suit, claiming that the marriage that was sought to be dissolved was Islamic, and as such the proper construction of such a certificate could only be undertaken by the Kadhi’s Court.

He claimed that once parties were married under Islamic law the marriage could only be dissolved under Islamic law, and the fact that his wife may have converted back to Christianity did not change things.

Justice Mrima, however, in the judgement noted that Article 170(5) provides that the Kadhi’s Court would have jurisdiction to hear and determine the matter only when the parties have submitted to its jurisdiction.

Divorce dispute “If any of the parties does not submit to jurisdiction, then the Kadhi’s Court would be denied jurisdiction over the dispute. Because of the conversion, the party to the dissolution dispute will have the freedom not to submit to the jurisdiction of the Kadhi’s Court,” ruled the Judge.

Justice Mrima said it is not denied that after the woman filed her petition at the Kadhi’s Court for the dissolution of the marriage, she changed her religion from being a Muslim to a Christian.

“If the change of her faith was constitutionally allowed, I find that her decision to apply to this court to move her away from the Kadhi’s Court to the Chief Magistrate’s Court is in line with her right,” ruled the Judge.

 Mrima also noted that although the parties were married under Islamic law, because of the loss of jurisdiction by the Kadhi’s Court, they will be subjected to the process of hearing and determining their divorce dispute before a court other than the Kadhi’s Court.

“I allow the application and transfer the divorce petition at the Kadhi’s Court in Nairobi between the applicant and respondent to the Chief Magistrate’s Court at Milimani for hearing and resolution,” he ruled.