1. The respondent herein petitioned the Kadhi vide petition dated 18th July 2023, and filed on 26th July 2023, seeking the following orders:-
1 The marriage between the parties hereto be dissolved;
2 The respondent, now the appellant, to pay eddat maintenance of Kes. 30,000/- per month, pending hearing of the suit, as may be just;
3 The respondent to pay the unpaid mahr of Kes.500,000/-; and
4 The respondent be condemned to pay for the costs of the suit.
The petition was based on particulars of infidelity and cruelty, which were pleaded.
2. The respondent herein, in her evidence before the trial court, testified that her marriage to the appellant herein was marred with infidelity and cruelty, with the appellant engaging in extramarital affairs and acting indecently with other women before the minors of the marriage. She further testified that from the time the marriage was celebrated, the appellant treated her with cruelty, including through insults intended to undermine her, neglecting the children of the marriage and assaulting the respondent. She stated that the appellant’s behaviour, character and attitude caused her great mental anguish, anxiety and depression. Under the circumstances, the difference between them was now irreconcilable, and the marriage had irretrievably broken down.
3. She stated that the respondent can afford to pay her Kes.30,000/- as he works at Menengai Oil Company Ltd, earning not less than Kes.200 000/- per month. She further stated that the appellant urged her to leave her work at the County Government of Nakuru. She also sought an award of Kes. 500,000/- as per the agreement in their marriage certificate.
4. The appellant, on the other hand, testified that he was not opposed to the divorce. He, however, disputed having an extramarital affair. He stated that he earns Kes.90,000/- and that he was taking care of two households, as he was paying maintenance for the children and his own household in Nakuru. He expressed a readiness to pay eddat, but at a lower amount than that sought by the respondent in the trial court.
5. Upon hearing the parties, the trial court in its judgement of 9th November 2023 issued the following orders:-
1. That a decree of divorce be issued;
2. That, arising from (1) above, the certificate of divorce be issued forthwith;
3. That the unpaid mahr to Kes.500,000/- shall be paid by the respondent (now the appellant);
4. That the respondent provide Kes.30,000/-, monthly for 3 months towards the eddat maintenance; and
5. No orders to cost.
6. Dissatisfied, the appellant filed an appeal seeking to have the decision of the honourable Kadhi varied and/or set aside in its entirety in terms of order (c), (d) and (e) of the judgment delivered on 9th November 2023. The appeal is based on the following grounds:-
a) That the honourable Kadhi erred in law and in fact in finding that the respondent has proved her case on a balance of probabilities without taking into account the allegations of adultery, infidelity and cruelty raised were not proved to the required standard in accordance with Islamic Shariah;
b) That despite the respondent herein filing and/or initiating the divorce, the honourable Kadhi erred in law and in fact in finding that the divorce did not form a khulu divorce, being a divorce at the wife’s request;
c) That the honourable Kadhi erred in law and in fact in failing, to appreciate that the issue raised by the respondent was that the principle of divorce khulu, divorce at the wife’s request, where a woman requests for divorce she has to refund the dowry so advanced and as a form of compensation, and in the event, there is an unpaid balance, the same is written off;
d) That the honourable Kadhi erred in law and in fact in failing to appreciate that in cases of Khulu, where the woman seeks divorce, the eddat maintenance and/or alimony is limited to one month as opposed to three months and wrongly granted the respondent herein 3 months’ alimony;
e) That the honourable Kadhi erred in law and in fact by awarding Kshs 30,000 as Eddah maintenance without taking into account the appellant's financial means, despite the appellant being forthwith about his capacity, the honourable Kadhi has not shown how he reached this decision. Additionally, the alimony in this type of divorce is limited to only one month;
f) That the honourable Kadhi erred in law and in fact in failing to appreciate that the appellant herein had advanced and indeed paid Kes.250,000/- to the respondent as part of the dowry, a fact which he disclosed to the court during the hearing of his case, nonetheless the court proceeded and awarded the respondent a full sum of Kes.500,000/- as pleaded without taking into account the amount paid;
g) That the honourable Kadhi erred in law and in fact in failing to award that the appellant herein be paid compensation for the amount already advanced of Kes.250,000/- which he paid to the respondent herein as part of the dowry, contrary to the laws of Islamic Shariah the honourable Kadhi proceeded to award the respondent a full sum of Kes.500,000;
h) That the honourable Kadhi erred in law and in fact in failing to find that the respondent’s assertions of infidelity without any cogent proof as such the facts were never backed by any evidence (documentary or otherwise) or at all save for chats which production did not meet the requirements laid out under Section 106B of the Evidence Act; and
i) That the honourable Kadhi thus erred in law and in fact in placing too much reliance on the statements by the respondent instead of placing reliance on the facts, substance and weight of the evidence adduced by the appellant.
7. The appeal was disposed of by way of written submissions. The appellant, through his advocates M.A. Mohamed & Company Advocates, filed his written submissions dated 2nd July 2024.
8. On whether the respondent is entitled to receive and /or repay dowry, counsel submitted that a marriage conducted under Islam can be dissolved for the following reasons: apostasy, which means renunciation of a religious faith; death of either party; divorce, valid marriage under Islamic Shariah law may be dissolved by divorce in any one of the manner prescribed by Shariah law; option of repudiation at puberty where the marriage of a lady was contracted by her legal guardian when she was a minor, she has a right and liberty, at the attainment of age of puberty, to either ratify or repudiate it; and, nullity of an irregular marriage. Under the Islamic Shariah, irregular marriage is null and void unless the legal impediments are removed.
9. Further, the right to divorce under Islamic law is vested in the husband unless specifically delegated to the wife by the husband. The courts are also vested with the power to dissolve a marriage if a wife can prove sufficient grounds under the law or through the Khul’u instrument. He submitted that two human beings cannot be forced to live together. Counsel relied on Article 89 of the Islamic Charter on Family, and Chapter 2, verse 229 of the Holy Quran.
10. On whether the respondent is entitled to dowry counsel submitted that, being the one who moved the court for divorce, the respondent ought to return the dowry already given to her by the appellant and not vice versa.
11. Regarding eddat maintenance in cases of Khul’u, counsel submitted that a divorced woman is to observe Eddah for a period of three months. Counsel submitted that the appellant objected to the amount payable and not the payment.
12. In conclusion, counsel urged the court to order the respondent to pay back the amount of Kes.250,000/- paid towards dowry. He further submitted that the eddat maintenance ought to be for one month.
13. The respondent, on the other hand, through her advocates, Messrs. Kibatia & Co. Advocates LLP, filed her written submissions dated 22nd July 2024.
14. On whether the respondent is entitled to receive dowry counsel submitted that the divorce was not recognised as Khul’u, nor was the payment of Kes. 250,000/- substantiated, and therefore, the payment of Kes.500,000/- still stands.
15. Regarding the question as to whether the respondent was entitled to her maintenance for eddat period, counsel submitted that the Hon. Kadhi took into consideration the appellant’s financial capacity and the respondent’s needs, which was not rebutted by evidence. Counsel urged the court to dismiss the appeal and uphold the judgment of the Hon Kadhi.
16. This matter was heard on 25th July 2024 by this Court, sitting with Hon. Mwaito Salim Juma, Principal Kadhi, and Hon. Wendo Shaban Wendo, Senior Resident Kadhi, as the assessors, given their expertise in Islamic law. The parties highlighted their submissions. I will not rehash the aforementioned submissions here, as they were, in substance, similar to the summary I have provided above.
17. This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that the trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
18. The duty of the first appellate Court was settled in the case of Selle & another vs Associated Motor Boat Company and Others [1968]EA 123. In the said case the learned Judges of Appeal stated as follows:-
“…this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
19. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion.”
20. I have considered the appeal, the written and oral submissions of the parties and the opinion of the two Kadhis I sat with. In my opinion, three issues need to be determined. These are: what kind of divorce was contracted in this matter, secondly, whether, and how much, eddat maintenance is payable, and thirdly, the payment of the mahr debt.
21. Was adultery proved before the trial Kadhi as required by the Islamic Shariah? Quran 27:64 states that:-
“…say produce your proof if you should be truthful.”
Ibn Abbas (R.A) narrated that the Prophet (PBUH) said: “If people are given only on the basis of their claims, they would claim the blood and property of others, but the (onus of) oath is on the defendant.”
22. Proof of adultery in Islamic Shariah is stringent. At the conference on Muslim Doctrine and Human Rights in Islam between the Saudi Arabian scholars and jurists, the Muslim Ulamaa (Scholars) stated as follows on the punishment of adultery:-
“this penalty is prescribed only when culprit, prior to his delict, had contracted a legal marriage, and if four (4) witnesses known for their righteousness and their integrity, were present at the accomplishment of the sexual act, in a manner which could exclude the possibility of any doubt; it would not be sufficient namely, that they had seen the accused completely naked and stuck together.”
During the life of the Prophet Mohamed (S.A.W), not one single case of adultery was established by evidence of four eyewitnesses; only one case was verified through the spontaneous confession of the culprit eager to purify himself in this life.
Although the respondent produced photographs in support of her petition, her evidence was not corroborated by four witnesses as required under Islamic Shariah and neither did the appellant confess to committing adultery. Thus, as per the required standard under Islamic Sharia, the allegation of adultery was not proved.
Ibn Abbas (R.A) narrated that the Prophet PBUH said, “The onus of proof lies on the plaintiff and the oath is to be taken by the defendant, (Bukhari {4552}, {Muslim1/1711}and Al Baihaqi{10/252}.
23. In my view, the allegation of cruelty wasn’t proved either. Cruelty must be proved with cogent evidence. I rely on the holding by the Court in the case of AMA v GSB HCDC No. 134 of 2010 Nairobi wherein he held:-
“...... cruelty is willful and unjustifiable conduct of such character as to cause danger to life, limb, or health, bodily or mental or so as to give reasonable apprehension of such a danger....” (see also Russell v Russell (1895) P. 315, 322).”
24. Islam calls for couples to live in peace and harmony. Quran 30.21 states that:-
“and among his signs this, that He created for you mates from among yourselves, that ye may dwell in tranquillity with them and He has put love and mercy between your (hearts): verily in that are signs for those who reflect.”
Although cruelty wasn’t proved it clear the parties are no longer interested in the marriage.
25. I will now turn to the second issue, which is on Khul’u. According to Islamic Shariah, Talaq is the separation of the marriage tie, which is initiated by the husband. Quran 2.236 states that:-
“there is no sin on you if you divorce women while you have not touched …”
Khul’u, on the other hand, is a divorce at the instance of the wife, with the consent of the husband, in which she gives consideration to the husband, to procure her release from the marriage tie.
26. What must be proved for Khul’u to be proved was settled in the case of AAA &Another v KAM (Civil Appeal 2 of 2019) KEHC18062(KLR) (13 October 2022) (judgement) where the Court stated as follows:-
“There must be an offer from the wife, the wife may make a proposal either by the use of the word Khul’u or its derivative e.g. the wife states give a Khul’u in exchange for my dowry; the offer must be accepted by the husband, the husband replies “I do”. Thereafter a valid dissolution of marriage under Khul’u comes into effect; the monetary compensation must be paid in return by someone who is legally qualified to donate; the husband must be legally qualified to divorce.”
27. In my view, since the appellant acknowledged that he had no objection to divorce, it means that the husband divorced the wife before the court. The marriage was therefore terminated vide divorce (talaq) issued by the defendant in the open court before the Kadhi, not by Khul’u as alleged by the appellant. In any case, the issue of Khul’u was not raised nor canvassed in the trial court.
28. On eddat maintenance and eddat period (waiting period), under Muslim law, a woman is entitled to maintenance only till the end of the eddat period. The eddat period is when the parties cohabit, and upon its expiry, the spouses will stand divorced. The period of eddat consists of three menstrual cycles or three lunar months. In the case of pregnant women, the eddat period would extend up to the time of delivery. Quran 2:228 states that:-
“Divorced women shall keep themselves in waiting for three menstrual courses, and it is unlawful for them, if they believe in Allah and the Last Day, to hide whatever Allah might have created in their wombs.”
From the foregoing, it is clear that the waiting period is three menstrual cycles, not three months as indicated by the trial Kadhi, or one month as alleged by the appellant.
29. During this period, the divorcee is entitled to eddat maintenance. The Holy Quran 65:6 states that:-
“let them live during their waiting period, according to your means. And do not harass them to make their stay unbearable. If they are pregnant, then maintain them until they deliver…”
30. The appellant did not dispute the payment of eddat maintenance, but the amount payable, which would have been solved by the filing of an affidavit of means. This was not done. That said, it would appear to me that the Hon. Kadhi made an order for payment of Kes.30,000/- without considering the financial ability of the parties, which is against the laid-down procedure when issuing eddat maintenance. The Holy Quran 65:7 states that:-
“Let the rich man spend according to his means, and the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what he has given him. Allah will grant after hardship, ease.”
31. The last issue is on the payment of dowry debt. The Holy Quran 4.4 states that:-
“and give to the women (whom you marry) their Sadaqat (or dowry) Nikah (with a good heart), but if they, of their own good pleasure, remit any part of it to you, take it, enjoy it without fear of any harm.”
Dowry is enjoined by the law merely as a token of respect for its object. Unpaid mahr (dowry) is considered an unsecured debt payable to the wife by the husband or from his estate; therefore, Muslim widows and divorcees have the right to recover the debt during the lifetime of the husband or his estate. If she predeceases him, her heirs are entitled to the dowry.
32. Islam calls for documentation of all dealings, hence the reason why, during the registration of a Muslim marriage, a dowry clause is specifically provided for. This helps prevent misunderstandings between parties. In this case, the marriage notification indicated that no dowry was paid; therefore, the claim by the appellant that he paid Kes.250,000/- was not proved. The Court below was, therefore, correct to hold that the dowry was not paid. The appeal on this ground, thus, fails.
33. The upshot of the foregoing is that the appeal largely fails. I uphold the trial court's finding on divorce and the payment of mahr. I remit the matter back to the Kadhi Court, strictly for the said Court to establish the quantum of eddat maintenance payable, after obtaining the affidavit of means from the appellant and the respondent. As I have already held, the eddat maintenance payable will be in respect of three menstrual cycles, as ordained by the Holy Quran.
34. Due to its nature, I make no order as to costs.
35. Orders accordingly.
Dated and signed at Mombasa, this 14th day of October 2024. Delivered virtually through Microsoft TEAMS.
1 The marriage between the parties hereto be dissolved;
2 The respondent, now the appellant, to pay eddat maintenance of Kes. 30,000/- per month, pending hearing of the suit, as may be just;
3 The respondent to pay the unpaid mahr of Kes.500,000/-; and
4 The respondent be condemned to pay for the costs of the suit.
The petition was based on particulars of infidelity and cruelty, which were pleaded.
2. The respondent herein, in her evidence before the trial court, testified that her marriage to the appellant herein was marred with infidelity and cruelty, with the appellant engaging in extramarital affairs and acting indecently with other women before the minors of the marriage. She further testified that from the time the marriage was celebrated, the appellant treated her with cruelty, including through insults intended to undermine her, neglecting the children of the marriage and assaulting the respondent. She stated that the appellant’s behaviour, character and attitude caused her great mental anguish, anxiety and depression. Under the circumstances, the difference between them was now irreconcilable, and the marriage had irretrievably broken down.
3. She stated that the respondent can afford to pay her Kes.30,000/- as he works at Menengai Oil Company Ltd, earning not less than Kes.200 000/- per month. She further stated that the appellant urged her to leave her work at the County Government of Nakuru. She also sought an award of Kes. 500,000/- as per the agreement in their marriage certificate.
4. The appellant, on the other hand, testified that he was not opposed to the divorce. He, however, disputed having an extramarital affair. He stated that he earns Kes.90,000/- and that he was taking care of two households, as he was paying maintenance for the children and his own household in Nakuru. He expressed a readiness to pay eddat, but at a lower amount than that sought by the respondent in the trial court.
5. Upon hearing the parties, the trial court in its judgement of 9th November 2023 issued the following orders:-
1. That a decree of divorce be issued;
2. That, arising from (1) above, the certificate of divorce be issued forthwith;
3. That the unpaid mahr to Kes.500,000/- shall be paid by the respondent (now the appellant);
4. That the respondent provide Kes.30,000/-, monthly for 3 months towards the eddat maintenance; and
5. No orders to cost.
6. Dissatisfied, the appellant filed an appeal seeking to have the decision of the honourable Kadhi varied and/or set aside in its entirety in terms of order (c), (d) and (e) of the judgment delivered on 9th November 2023. The appeal is based on the following grounds:-
a) That the honourable Kadhi erred in law and in fact in finding that the respondent has proved her case on a balance of probabilities without taking into account the allegations of adultery, infidelity and cruelty raised were not proved to the required standard in accordance with Islamic Shariah;
b) That despite the respondent herein filing and/or initiating the divorce, the honourable Kadhi erred in law and in fact in finding that the divorce did not form a khulu divorce, being a divorce at the wife’s request;
c) That the honourable Kadhi erred in law and in fact in failing, to appreciate that the issue raised by the respondent was that the principle of divorce khulu, divorce at the wife’s request, where a woman requests for divorce she has to refund the dowry so advanced and as a form of compensation, and in the event, there is an unpaid balance, the same is written off;
d) That the honourable Kadhi erred in law and in fact in failing to appreciate that in cases of Khulu, where the woman seeks divorce, the eddat maintenance and/or alimony is limited to one month as opposed to three months and wrongly granted the respondent herein 3 months’ alimony;
e) That the honourable Kadhi erred in law and in fact by awarding Kshs 30,000 as Eddah maintenance without taking into account the appellant's financial means, despite the appellant being forthwith about his capacity, the honourable Kadhi has not shown how he reached this decision. Additionally, the alimony in this type of divorce is limited to only one month;
f) That the honourable Kadhi erred in law and in fact in failing to appreciate that the appellant herein had advanced and indeed paid Kes.250,000/- to the respondent as part of the dowry, a fact which he disclosed to the court during the hearing of his case, nonetheless the court proceeded and awarded the respondent a full sum of Kes.500,000/- as pleaded without taking into account the amount paid;
g) That the honourable Kadhi erred in law and in fact in failing to award that the appellant herein be paid compensation for the amount already advanced of Kes.250,000/- which he paid to the respondent herein as part of the dowry, contrary to the laws of Islamic Shariah the honourable Kadhi proceeded to award the respondent a full sum of Kes.500,000;
h) That the honourable Kadhi erred in law and in fact in failing to find that the respondent’s assertions of infidelity without any cogent proof as such the facts were never backed by any evidence (documentary or otherwise) or at all save for chats which production did not meet the requirements laid out under Section 106B of the Evidence Act; and
i) That the honourable Kadhi thus erred in law and in fact in placing too much reliance on the statements by the respondent instead of placing reliance on the facts, substance and weight of the evidence adduced by the appellant.
7. The appeal was disposed of by way of written submissions. The appellant, through his advocates M.A. Mohamed & Company Advocates, filed his written submissions dated 2nd July 2024.
8. On whether the respondent is entitled to receive and /or repay dowry, counsel submitted that a marriage conducted under Islam can be dissolved for the following reasons: apostasy, which means renunciation of a religious faith; death of either party; divorce, valid marriage under Islamic Shariah law may be dissolved by divorce in any one of the manner prescribed by Shariah law; option of repudiation at puberty where the marriage of a lady was contracted by her legal guardian when she was a minor, she has a right and liberty, at the attainment of age of puberty, to either ratify or repudiate it; and, nullity of an irregular marriage. Under the Islamic Shariah, irregular marriage is null and void unless the legal impediments are removed.
9. Further, the right to divorce under Islamic law is vested in the husband unless specifically delegated to the wife by the husband. The courts are also vested with the power to dissolve a marriage if a wife can prove sufficient grounds under the law or through the Khul’u instrument. He submitted that two human beings cannot be forced to live together. Counsel relied on Article 89 of the Islamic Charter on Family, and Chapter 2, verse 229 of the Holy Quran.
10. On whether the respondent is entitled to dowry counsel submitted that, being the one who moved the court for divorce, the respondent ought to return the dowry already given to her by the appellant and not vice versa.
11. Regarding eddat maintenance in cases of Khul’u, counsel submitted that a divorced woman is to observe Eddah for a period of three months. Counsel submitted that the appellant objected to the amount payable and not the payment.
12. In conclusion, counsel urged the court to order the respondent to pay back the amount of Kes.250,000/- paid towards dowry. He further submitted that the eddat maintenance ought to be for one month.
13. The respondent, on the other hand, through her advocates, Messrs. Kibatia & Co. Advocates LLP, filed her written submissions dated 22nd July 2024.
14. On whether the respondent is entitled to receive dowry counsel submitted that the divorce was not recognised as Khul’u, nor was the payment of Kes. 250,000/- substantiated, and therefore, the payment of Kes.500,000/- still stands.
15. Regarding the question as to whether the respondent was entitled to her maintenance for eddat period, counsel submitted that the Hon. Kadhi took into consideration the appellant’s financial capacity and the respondent’s needs, which was not rebutted by evidence. Counsel urged the court to dismiss the appeal and uphold the judgment of the Hon Kadhi.
16. This matter was heard on 25th July 2024 by this Court, sitting with Hon. Mwaito Salim Juma, Principal Kadhi, and Hon. Wendo Shaban Wendo, Senior Resident Kadhi, as the assessors, given their expertise in Islamic law. The parties highlighted their submissions. I will not rehash the aforementioned submissions here, as they were, in substance, similar to the summary I have provided above.
17. This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that the trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
18. The duty of the first appellate Court was settled in the case of Selle & another vs Associated Motor Boat Company and Others [1968]EA 123. In the said case the learned Judges of Appeal stated as follows:-
“…this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
19. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion.”
20. I have considered the appeal, the written and oral submissions of the parties and the opinion of the two Kadhis I sat with. In my opinion, three issues need to be determined. These are: what kind of divorce was contracted in this matter, secondly, whether, and how much, eddat maintenance is payable, and thirdly, the payment of the mahr debt.
21. Was adultery proved before the trial Kadhi as required by the Islamic Shariah? Quran 27:64 states that:-
“…say produce your proof if you should be truthful.”
Ibn Abbas (R.A) narrated that the Prophet (PBUH) said: “If people are given only on the basis of their claims, they would claim the blood and property of others, but the (onus of) oath is on the defendant.”
22. Proof of adultery in Islamic Shariah is stringent. At the conference on Muslim Doctrine and Human Rights in Islam between the Saudi Arabian scholars and jurists, the Muslim Ulamaa (Scholars) stated as follows on the punishment of adultery:-
“this penalty is prescribed only when culprit, prior to his delict, had contracted a legal marriage, and if four (4) witnesses known for their righteousness and their integrity, were present at the accomplishment of the sexual act, in a manner which could exclude the possibility of any doubt; it would not be sufficient namely, that they had seen the accused completely naked and stuck together.”
During the life of the Prophet Mohamed (S.A.W), not one single case of adultery was established by evidence of four eyewitnesses; only one case was verified through the spontaneous confession of the culprit eager to purify himself in this life.
Although the respondent produced photographs in support of her petition, her evidence was not corroborated by four witnesses as required under Islamic Shariah and neither did the appellant confess to committing adultery. Thus, as per the required standard under Islamic Sharia, the allegation of adultery was not proved.
Ibn Abbas (R.A) narrated that the Prophet PBUH said, “The onus of proof lies on the plaintiff and the oath is to be taken by the defendant, (Bukhari {4552}, {Muslim1/1711}and Al Baihaqi{10/252}.
23. In my view, the allegation of cruelty wasn’t proved either. Cruelty must be proved with cogent evidence. I rely on the holding by the Court in the case of AMA v GSB HCDC No. 134 of 2010 Nairobi wherein he held:-
“...... cruelty is willful and unjustifiable conduct of such character as to cause danger to life, limb, or health, bodily or mental or so as to give reasonable apprehension of such a danger....” (see also Russell v Russell (1895) P. 315, 322).”
24. Islam calls for couples to live in peace and harmony. Quran 30.21 states that:-
“and among his signs this, that He created for you mates from among yourselves, that ye may dwell in tranquillity with them and He has put love and mercy between your (hearts): verily in that are signs for those who reflect.”
Although cruelty wasn’t proved it clear the parties are no longer interested in the marriage.
25. I will now turn to the second issue, which is on Khul’u. According to Islamic Shariah, Talaq is the separation of the marriage tie, which is initiated by the husband. Quran 2.236 states that:-
“there is no sin on you if you divorce women while you have not touched …”
Khul’u, on the other hand, is a divorce at the instance of the wife, with the consent of the husband, in which she gives consideration to the husband, to procure her release from the marriage tie.
26. What must be proved for Khul’u to be proved was settled in the case of AAA &Another v KAM (Civil Appeal 2 of 2019) KEHC18062(KLR) (13 October 2022) (judgement) where the Court stated as follows:-
“There must be an offer from the wife, the wife may make a proposal either by the use of the word Khul’u or its derivative e.g. the wife states give a Khul’u in exchange for my dowry; the offer must be accepted by the husband, the husband replies “I do”. Thereafter a valid dissolution of marriage under Khul’u comes into effect; the monetary compensation must be paid in return by someone who is legally qualified to donate; the husband must be legally qualified to divorce.”
27. In my view, since the appellant acknowledged that he had no objection to divorce, it means that the husband divorced the wife before the court. The marriage was therefore terminated vide divorce (talaq) issued by the defendant in the open court before the Kadhi, not by Khul’u as alleged by the appellant. In any case, the issue of Khul’u was not raised nor canvassed in the trial court.
28. On eddat maintenance and eddat period (waiting period), under Muslim law, a woman is entitled to maintenance only till the end of the eddat period. The eddat period is when the parties cohabit, and upon its expiry, the spouses will stand divorced. The period of eddat consists of three menstrual cycles or three lunar months. In the case of pregnant women, the eddat period would extend up to the time of delivery. Quran 2:228 states that:-
“Divorced women shall keep themselves in waiting for three menstrual courses, and it is unlawful for them, if they believe in Allah and the Last Day, to hide whatever Allah might have created in their wombs.”
From the foregoing, it is clear that the waiting period is three menstrual cycles, not three months as indicated by the trial Kadhi, or one month as alleged by the appellant.
29. During this period, the divorcee is entitled to eddat maintenance. The Holy Quran 65:6 states that:-
“let them live during their waiting period, according to your means. And do not harass them to make their stay unbearable. If they are pregnant, then maintain them until they deliver…”
30. The appellant did not dispute the payment of eddat maintenance, but the amount payable, which would have been solved by the filing of an affidavit of means. This was not done. That said, it would appear to me that the Hon. Kadhi made an order for payment of Kes.30,000/- without considering the financial ability of the parties, which is against the laid-down procedure when issuing eddat maintenance. The Holy Quran 65:7 states that:-
“Let the rich man spend according to his means, and the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what he has given him. Allah will grant after hardship, ease.”
31. The last issue is on the payment of dowry debt. The Holy Quran 4.4 states that:-
“and give to the women (whom you marry) their Sadaqat (or dowry) Nikah (with a good heart), but if they, of their own good pleasure, remit any part of it to you, take it, enjoy it without fear of any harm.”
Dowry is enjoined by the law merely as a token of respect for its object. Unpaid mahr (dowry) is considered an unsecured debt payable to the wife by the husband or from his estate; therefore, Muslim widows and divorcees have the right to recover the debt during the lifetime of the husband or his estate. If she predeceases him, her heirs are entitled to the dowry.
32. Islam calls for documentation of all dealings, hence the reason why, during the registration of a Muslim marriage, a dowry clause is specifically provided for. This helps prevent misunderstandings between parties. In this case, the marriage notification indicated that no dowry was paid; therefore, the claim by the appellant that he paid Kes.250,000/- was not proved. The Court below was, therefore, correct to hold that the dowry was not paid. The appeal on this ground, thus, fails.
33. The upshot of the foregoing is that the appeal largely fails. I uphold the trial court's finding on divorce and the payment of mahr. I remit the matter back to the Kadhi Court, strictly for the said Court to establish the quantum of eddat maintenance payable, after obtaining the affidavit of means from the appellant and the respondent. As I have already held, the eddat maintenance payable will be in respect of three menstrual cycles, as ordained by the Holy Quran.
34. Due to its nature, I make no order as to costs.
35. Orders accordingly.
Dated and signed at Mombasa, this 14th day of October 2024. Delivered virtually through Microsoft TEAMS.