ISO v FMM [2022] KEHC 17184 (KLR)

ISO v FMM (Civil Appeal E006 of 2021) [2022] KEHC 17184 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 17184 (KLR)

Republic of Kenya

In the High Court at Garsen

Civil Appeal E006 of 2021

SM Githinji, J

November 3, 2022

Between

ISO

Appellant

and

FMM

Respondent

(An Appeal from the Judgment of Hon Swaleh Mohammed Ali, Principal Kadhi delivered at Lamu on 8th June 2021 in Lamu Kadhi Divorce Case No. 1 of 2021)

Judgment

1. The appellant ISO has appealed against the Judgment and consequential orders made by Hon Swaleh Mohammed Ali made in Divorce Case No 1 of 2021 on June 8, 2021. The Learned trial Kadhi had made the following orders:a.That the Appellant to give back to the Respondent the remaining dowry being; a bed, wardrobe and dressing;b.That the Appellant to give back the Respondent the remaining household effects.c.No orders as to costs.

2. Being aggrieved with the orders of the court, the appellant filed this Memorandum of Appeal dated July 7, 2021 modelled as follows:1. That the Learned Kadhi erred in law and fact in holding that the agreed dowry of the marriage between the Appellant and the Respondent was full furniture, to wit, a bed, a wardrobe and a dressing table.2. That the Learned Kadhi erred in law and in fact in ordering the Appellant to give the Respondent the remaining dowry being a bed, a wardrobe and a dressing table.3. That the Learned Kadhi erred in law and in fact in holding that the household items are the properties of the Respondent and ordering the Appellant to give them to the Respondent.4. That the Learned Kadhi erred in law and in fact in disregarding the fact that the Respondent did not produce the Certificate of Marriage for the trial court to ascertain the exact dowry of the marriage.5. That the Learned Kadhi erred in law and in fact in failing to take into account that the Appellant had official receipts to prove ownership of the household effects but the trial court proceeded to hold that the same are properties of the Respondent.6. That the Learned Kadhi erred in law and in fact in disregarding the fact that the Respondent was unfaithful to the Appellant and she prompted the divorce in order to unjustly enrich herself with the properties of the Appellants.

Litigation The Petitioner’s Case 3. PW1 FMM told the court that the Respondent divorced her in August, 2020 but he did not give her dowry as a divorcee. That she was given only Kshs 20,000/-

The Respondent’s Case 4. ISO informed the court that he divorced the Plaintiff in August, 2020. That the Plaintiff was divorced by her first husband and that the consent dowry was Kshs 20,000/- which was given to the Plaintiff. That he decided to divorce her because she was disrespectful.

5. material the Petitioner’s mother told the court that the consent dowry was a bed, wardrobe and a dresser and Kshs 50,000/- and that only Kshs 20,000/- was given. She also told the court that upon divorcing the Petitioner, the Respondent remained with some household items.

6. Jaffar Said Ali told the court that he was the one who conducted the marriage between the parties but he could not recall the details since it was a long time ago. That the marriage was also not registered because the parties did not present themselves for registration.

7. Yusuf Sheikh told the court that the consent dowry was Kshs 50,000/- and full furniture.

8. BJ stated that the consent dowry was Kshs 50,000/- and furniture and that the consent was between the parties, the Respondent’s father the Petitioner’s father.

Submissions 9. The appeal was canvassed by way of written submissions. The Appellant filed his submissions on the February 24, 2022.

10. He submitted that there was no material that was placed before court to establish the exact amount of dowry and that the Respondent took advantage of the fact that the marriage was not registered to line up witnesses who could also not ascertain the agreed dowry of the marriage. It was his submission that in the absence of evidence that the furniture was part of the agreed dowry then the Respondent’s claim for the balance of the dowry in terms of the claimed furniture ought to be dismissed. He relied on the case of H S C vs Z F M (2017) eKLR where the High Court allowed an appeal and assessed the dowry downwards from the claimed Kshs 170,000/- to Kshs 30,000/- as there was no reliable evidence to prove that the agreed dowry was Kshs 170,000/- as awarded by the trial court.

11. The Respondent on the hand filed submissions on February 22, 2022. She submitted that the marriage between the Appellant and the Respondent is not denied and as such dowry and bride price had to be paid as required by Islamic Sharia Law. She relied on the case of F B I v B G(2018) eKLR and that of Kirugi & Another vs Kabiya & 3 others (1987) KLR 347.

Disposition 12. I have considered the appeal, the submissions by both the Appellant and the Respondent and have also perused the entire record and judgment of the trial Kadhi’s court.

13. This appeal has arisen from proceedings in the Kadhi’s court, and the parties are Muslims. Under Article 170 (5) of the Constitution of Kenya 2010 , the jurisdiction of a Kadhi’s court is defined as follows;170 (5) The jurisdiction of a Kadhi’s 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 parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts”.

14. The entitlement of parties in a marriage as for the parties herein who profess the Muslim faith, the said entitlement in my view means that Islamic law which is applicable to them will be applied to them equally in a matter that relates to the dissolution of their marriage. For Muslims, the provisions of the bill of rights in the , give way to the application of Islamic law in matters relating to personal status, marriage, divorce and inheritance. This is as per Article 24(4) of the Constitution, which provides:The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.”

15. What is for determination in the present appeal is whether the orders given by the Hon. Kadhi were justified under Islamic Law and particularly matters relating to dowry after divorce.

16. The mahr (dowry) is something that is paid by the man to his wife. It is paid to the wife and to her only as an honour and a respect given to her by the man to demonstrate that he has a serious desire to marry her and is not simply entering into the marriage as a joker without any sense of responsibility and obligation or effort on his part. I have had the advantage of going through several extracts of the Quran in reference to the issue of dowry such as;And give the women their dowries with a good heart..." [Noble Quran 4:4]

17. This brings out the responsibility placed on the husband to pay the dowry; my understanding of this extract is that the dowry must be given to the women. The Appellant has continually stated in his appeal that the Respondent did not prove the exact amount of dowry agreed upon by the parties, I cannot abandon the law that the parties have prescribed to and under, which is the Islamic practice and Sharia law. The Appellant is therefore under the obligation to refund the dowry and fully abide by the judgment of the Kadhi which is the subject of this appeal.

18. To this end, I do not find merit in this appeal and the same is hereby dismissed.

It is so ordered.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI IN ABSENCE OF PARTIES THIS 3RD DAY OF NOVEMBER, 2022. S.M. GITHINJIJUDGECORAM: Hon. Justice S. M. GithinjiThe Appellant in personThe Respondent in person