TSJ v SHSR [2023] KEHC 24429 (KLR)

TSJ v SHSR (Miscellaneous Application 8 of 2013) [2023] KEHC 24429 (KLR) (Family) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24429 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Application 8 of 2013

EKO Ogola, J

October 19, 2023

Between

TSJ

Applicant

and

SHSR

Respondent

Ruling

1. What is before this court is an application dated 12th November 2021 filed by the respondent. He prays for the following orders:-a.Spent;b.That pending the hearing and determination of this application inter parties this honorable Court be pleased to set aside the orders of this court given on the 11th November 2021;c.That pending the hearing and determination of the application inter parties the Honorable Court be pleased to grant stay of execution of orders of the Court dated 11th November 2021 and all other consequential orders arising therefrom;d.That the cost of this application be provided for.

2. To put matters into context, the parties belong to the Shia Imami Ismailia Muslim faith. On 2nd May 1992, they entered into a marriage and they were duly issued with a marriage form certifying their marriage by the H.H. The Aga Khan Shia Imami Ismailia Provincial Council. When the marriage was troubled, the Respondent approached the H.H Aga Khan Shia Ismaili Conciliation and Arbitration Board, Nairobi for prayers that his wife, the Applicant herein vacate the matrimonial home on the grounds of irreconcilable differences. An arbitral award was given on 15th September 2012. The marriage was dissolved and the respondent was to inter alia pay Kshs. 50,000 per month as spousal and child maintenance and Kshs. 300,000 as mehr.

3. The respondent failed to comply with the orders. This necessitated the filing of this Miscellaneous Application on 18th February 2013. The Applicant prayed for the orders to recognize and enforce the arbitral award. The respondent opposed the application and further filed another application on 17th June 2013 seeking orders to set aside the Arbitral Award. On 5th June 2014 this Court upheld the respondent’s contention and dismissed the applicant’s Application dated 18th February 2013.

4. In dismissing the applicant’s Application, the court stated that the Arbitral Board could only deal with matters which are not within the exclusive jurisdiction of either the ordinary Courts or the Kadhi’s Courts. Therefore, the Arbitral Board had no jurisdiction to grant divorce orders pursuant to an arbitration agreement.

5. Dissatisfied with this Court’s Ruling, the Applicant approached the Court of Appeal on the grounds that the Judge failed to inter alia appreciate that the marriage contract between the parties provided for arbitration in the event of a matrimonial dispute and that the Arbitral Board had jurisdiction to deal with matters of personal law affecting members of the Shia Imami Ismaili faith. On 8th November 2019, the Court of Appeal rendered its decision allowing the Appeal. The Ruling of this Court dated 5th June 2014 was thereby set aside.

6. On 11th November 2021 the matter came before this Court to adopt the Court of Appeal Judgment. Neither the respondent nor his counsel made an appearance. The Court of Appeal Ruling was adopted. This is what has necessitated the respondent to file this instant application.

7. The application is based on the grounds set out therein and the Supporting Affidavit of the respondent sworn on even dates. The respondent deposed that on 10th November 2021, he instructed the firm of Messr. Karanja & Partners to represent him in this matter. However, when the matter came up for mention on 11th November 2021, his counsel attempted to log in to the virtual court platform his internet dropped during the court proceedings. The matter proceeded in the counsel’s absence. Consequently, the Court issued orders to adopt the Court of Appeal’s Judgment. The respondent avers that it was his intention to oppose the adoption of the said Court of Appeal order.

8. Parties were directed to canvass the application by way of submissions. Counsels on behalf of the parties filed their written submissions which I have read and considered.

Determination 9. I have considered the application, the rival submissions of the parties and the entire record of the court. The crux of the respondent’s case is that if his counsel was present in Court he would have had an opportunity to oppose the adoption of the Court of Appeal order. Order 10 Rule 11 of the Civil Procedure Rules empowers this court to set aside or vary its judgment and any consequential decree or order upon such terms as are just. Setting aside of the judgment or order is under the discretion of the court (see Mbogo v. Shah (1968) EA 93). The object of the discretion to set aside is to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error but it is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.

10. In these times of virtual court hearings, counsel might encounter challenges such as internet fluctuations. However, the question is, would the counsel’s presence in court affect the adoption of the Court of Appeal order?

11. Learned counsel for the respondent submitted that if he were present in Court he would have opposed the adoption of the said order on two main arguments. He argued that the order of the Court of Appeal has been overtaken by events because the issues contained in the arbitral award are all before Courts of law and have been determined. He submitted that the respondent filed Nairobi Children’s Case No. 74 of 2014 to address their spousal and children’s maintenance; High Court Divorce Case No. 118 of 2013 to dissolve their marriage; and Civil Case No. 8 of 2015 (OS) on Division of matrimonial property. Counsel further submitted that on payment of mehr, dowry is paid in marriage and the courts have dealt with the division of matrimonial property.

12. Counsel’s second argument was on the practicability of an arbitral award pertaining to issues already heard and finally determined by other courts. Counsel asked, ‘What shall happen to the court's orders in these matters if this court adopts the said arbitral award? Does the said orders of divorce, matrimonial property and children stand void or do the parties apply both simultaneously?

13. When the parties were before the Arbitral Board, they gave evidence of their matrimonial life. This included their children, financial situation, matrimonial home and assets. Furthermore, the chairman of the arbitral board raised the issue of Mehr, spousal and children maintenance, and custody which parties gave their respective arguments. The Arbitral Board issued its award as follows:- The marriage was dissolved; the parties had joint parental responsibility; there was an order on access, custody and maintenance of the children; an order of spousal maintenance was issued; the respondent was ordered to pay Mehr to the applicant within 30 days; the applicant was ordered to vacate the matrimonial home; and the matrimonial property was to be sold and proceeds be divided equally between the parties.

14. When the matter went to the Court of Appeal, the issue for determination was whether ordinary courts or the Kadhi’s courts have exclusive jurisdiction to grant divorce and orders relating to maintenance and custody of children. Within that, questions that arose was whether the genre of disputes capable of settlement by arbitration under the Arbitration Act are limited to commercial disputes; whether personal law matters are arbitrable; and whether in granting orders that it did, the Arbitral Board exceeded its jurisdiction.

15. The Court of Appeal in its judgment held that the power to dissolve an Islamic marriage can reside outside the courts. Furthermore, since the parties professed the Shia Imami Ismailia Muslim faith and had also submitted to the jurisdiction of the Arbitral Board, the Arbitral Board had jurisdiction to dissolve their marriage. The Court of Appeal also rejected this court’s argument that the High Court had exclusive jurisdiction under the Guardianship of Infants Act to deliberate on children matters. According to the Court of Appeal on paragraph 34 and 35 of the Judgment, personal law does not exclusively fall within the domain of the courts. Personal law can also be an issue to be deliberated in arbitration. Further to this, the Court of Appeal held in paragraph 36 that the Arbitral Board did not exceed its jurisdiction and they were within their mandate to adjudicate on all aspects of matrimonial disputes. In paragraph 39-40 the Court held that since the parties had submitted to the jurisdiction of the Arbitral Board, nothing precludes the Arbitral Board from arbitrating on the issues. The Appeal was allowed in terms of prayer (2) of the applicant’s application dated 18th February 2013 that the arbitral award be recognized and enforced.

16. From the foregoing, the respondent's arguments and concerns that the arbitral award has been overtaken since there are cases filed in other courts are unfounded. The Arbitral Award already determined the issue of custody, access and maintenance of the children; the dissolving of the marriage; the division of the matrimonial property; and the payment of Mehr. The respondent filing subsequent cases in multiple courts to try the issues that have already been determined is an act of forum shopping and blatant abuse of the court’s process.

17. The respondent's question was on the practicability of the arbitral award. The arbitral award was issued on 15th September 2012. The orders issued remain valid since the Court of Appeal endorsed them. The Arbitral Award is binding. Any case filed after the arbitral award.

18. The respondent or his counsel’s presence during the hearing on 11th November 2019 holds no material influence over the outcome of the adoption of the Arbitral Award, as this Court is irrevocably bound by the decision of the Court of Appeal. Consequently, this Court or any other subordinate court lacks the jurisdiction to preside over issues already dealt with by the Arbitral Board.

19. The upshot is that the respondent’s application dated 12th November 2021 is hereby dismissed for lack of merit. Respondent to bear the costsIt is so ordered.

DATED AND DELIVERED IN NAIROBI THIS 19TH DAY OF OCTOBER 2023. ...............................E.K. OGOLAJUDGEIn the presence of:Mr. Kisinga for the ApplicantMr. Muriuki h/b for Ms. Karanja for the RespondentGisiele Muthoni Court Assistant