1. In a ruling delivered on 9th October 2025, AJ Ishaq Hussein, SPK, dismissed the preliminary objection raised by the appellant/applicant, by which the latter contended that the Kadhi’s Court had no jurisdiction to determine the matter, as he had not submitted to its jurisdiction.
2. In the said ruling, the learned Kadhi stated that:
“The respondent, as the defendant, cannot defeat this choice through unilateral refusal. Islamic jurisprudence recognises the plaintiff’s right to choose the forum, not the defendant’s right to reject it.”
3. The Court went on to state at paragraph 18 that:
“This Islamic jurisprudential principle reinforces the interpretation of submissions under Article 170(5) cannot mean unilateral withdrawal by a defendant, such an interpretation would contradict the very Islamic law that the Kadhi’s Court is Constitutionally mandated to apply.”
4. This brave exposition of what he considered to be the law aggrieved the appellant/applicant, as did the direction that the matter would proceed to a hearing thereafter. The appellant/applicant thus appealed to this Court. At the same time, he sought to stay proceedings in the Kadhi’s Court pending the hearing and determination of the appeal.
5. The Respondent opposed the application to stay proceedings, contending that the appellant/applicant renounced the Court's jurisdiction only after the decision was made, not before.
6. The application was canvassed by way of written submissions, which I have considered. The question of whether the appellant/applicant submitted to the jurisdiction of the Kadhi’s Court is one for the appellate Court to consider and determine in due course. Mine is to determine whether there should be a stay of proceedings.
7. In my view, an application seeking a stay of proceedings should be sparingly granted. This is so because allowing such a prayer would interfere with the expeditious disposal of a case and may end up tying the Court in knots, as applications, after applications, are filed by a party keen to prevent an expeditious trial.
8. I note that in this case, the appellant/applicant did indeed file a cross petition for divorce dated 13th October 2025. Such an action may be taken as tacit submission to the jurisdiction of the Kadhi’s Court. But as earlier indicated, the effect of the said action will be decided by this Court in due course.
9. In the case of Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR), J Ngugi, J, as he then was, held that:
“As a general matter, an appellate court will only exercise its discretion to grant a stay of proceedings pending an appeal over an interlocutory matter before a magistrate’s Court or Tribunal only in exceptional circumstances. While difficult to determine with mathematical precision when the Court will use this power, it is only to be sparingly used where, in the words of South African authors, Gardiner and Lansdown (6th Ed. Vol. 1 p. 750), “grave injustice might otherwise result or where justice might not by other means be attained.” As the authors correctly write, the Court will generally “hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the Court below.”
10. There are no exceptional circumstances in this matter. In this case, the appellant/applicant pronounced the talaq. If the matter proceeds and is determined by the Court below, the appellant/applicant can still appeal to this Court. Nothing shows that continued proceedings would render the appeal nugatory. In my view, the application dated 6th November 2025 has no merit and is dismissed.
11. Costs are at the Court's discretion. Given that this is an appeal arising from divorce proceedings, I am of the view that an award of costs will not be helpful. Each party will bear their own costs of the application.
12. It is so ordered.
Dated and signed in Nairobi this 13th day of April 2026. Delivered virtually through Microsoft TEAMS.
2. In the said ruling, the learned Kadhi stated that:
“The respondent, as the defendant, cannot defeat this choice through unilateral refusal. Islamic jurisprudence recognises the plaintiff’s right to choose the forum, not the defendant’s right to reject it.”
3. The Court went on to state at paragraph 18 that:
“This Islamic jurisprudential principle reinforces the interpretation of submissions under Article 170(5) cannot mean unilateral withdrawal by a defendant, such an interpretation would contradict the very Islamic law that the Kadhi’s Court is Constitutionally mandated to apply.”
4. This brave exposition of what he considered to be the law aggrieved the appellant/applicant, as did the direction that the matter would proceed to a hearing thereafter. The appellant/applicant thus appealed to this Court. At the same time, he sought to stay proceedings in the Kadhi’s Court pending the hearing and determination of the appeal.
5. The Respondent opposed the application to stay proceedings, contending that the appellant/applicant renounced the Court's jurisdiction only after the decision was made, not before.
6. The application was canvassed by way of written submissions, which I have considered. The question of whether the appellant/applicant submitted to the jurisdiction of the Kadhi’s Court is one for the appellate Court to consider and determine in due course. Mine is to determine whether there should be a stay of proceedings.
7. In my view, an application seeking a stay of proceedings should be sparingly granted. This is so because allowing such a prayer would interfere with the expeditious disposal of a case and may end up tying the Court in knots, as applications, after applications, are filed by a party keen to prevent an expeditious trial.
8. I note that in this case, the appellant/applicant did indeed file a cross petition for divorce dated 13th October 2025. Such an action may be taken as tacit submission to the jurisdiction of the Kadhi’s Court. But as earlier indicated, the effect of the said action will be decided by this Court in due course.
9. In the case of Turbo Highway Eldoret Ltd v Muniu [2022] KEHC 10197 (KLR), J Ngugi, J, as he then was, held that:
“As a general matter, an appellate court will only exercise its discretion to grant a stay of proceedings pending an appeal over an interlocutory matter before a magistrate’s Court or Tribunal only in exceptional circumstances. While difficult to determine with mathematical precision when the Court will use this power, it is only to be sparingly used where, in the words of South African authors, Gardiner and Lansdown (6th Ed. Vol. 1 p. 750), “grave injustice might otherwise result or where justice might not by other means be attained.” As the authors correctly write, the Court will generally “hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the Court below.”
10. There are no exceptional circumstances in this matter. In this case, the appellant/applicant pronounced the talaq. If the matter proceeds and is determined by the Court below, the appellant/applicant can still appeal to this Court. Nothing shows that continued proceedings would render the appeal nugatory. In my view, the application dated 6th November 2025 has no merit and is dismissed.
11. Costs are at the Court's discretion. Given that this is an appeal arising from divorce proceedings, I am of the view that an award of costs will not be helpful. Each party will bear their own costs of the application.
12. It is so ordered.
Dated and signed in Nairobi this 13th day of April 2026. Delivered virtually through Microsoft TEAMS.