Introduction
1. The Notice of Motion Application dated 12 th May 2026 is supported by the affidavit of the Applicant, R.D.T of even date and a further affidavit dated 17 th June, 2026.
2. The Applicant seeks review and setting aside of the ex parte order made on 11 th May 2026 in Thika Kadhi Court Case No. KCPSC/E001/2026.
3. The Applicant further seeks an order to compel the respondent to cater for the school fees and all school related expenses for minors of school going age while they remain in the custody, care and control of the Applicant.
4. In opposition to the application, the Respondent, A.I.S, filed a Replying affidavit dated 29 th May 2026.
Applicant’s Case.
5. The Applicant deposes the Respondent obtained ex parte orders through non disclosure and concealment of material facts which thereby misleading the court into issuing orders without the full and true information of all the relevant circumstances. The Applicant swore that issuance of the ex parte order was a constitutes the denial of right to be heard under Article 50 of the Constitution.
6. The Applicant deponed that she and the Respondent were lawfully married under Islamic Law in the year 2011. Together they are blessed with seven children aged between one and thirteen years.
7. The Applicant swore that on 13 th December, 2025, the Respondent violently assaulted her and divorced her. She disclosed that prior to the divorce, the Respondent had threatened her that upon divorce she would forfeit the custody of the minors to him. The Applicant depones that while she was still in a state of duress and intimidation from the Respondent; the Respondent stormed their matrimonial home and forcefully removed all the minors including the youngest child who was barely one year old and was still breast feeding.
8. The Applicant contends that attempts by the Children’s Office to summon the Respondent proved futile. The Children Office thus issued the Applicant with a referral letter to the National Legal aid Clinic for legal assistance. The Applicant swore that her efforts to reach out to the Respondent to allow access to the minors have been unsuccessful. She swore that she has completely been denied access to the children by the Respondent.
9. The Applicant depones that the Respondent is a person who suffers recurrent mental illness and the condition has on several occasions caused him to physically assault the eldest minor, who is aged 13 years, especially after the minor used the Respondent’s phone to contact the Applicant (the mother). As a result of repeated assaults, the said minor fled and sought refuge with his mother (the Applicant) and is currently residing with him at the Applicant’s uncle’s residence in Ngong.
10. The Applicant revealed that said minor sustained an eye injury occasioned by slaps and beatings inflicted by the Respondent and was treated and discharged at Lions Sight Eye Clinic on 28 th April 2026. The Applicant thus expressed fears for the welfare and safety of not only the eldest minor but also the rest minors whom she is apprehensive remain in grave danger of persistent physical assault as all efforts by family members to gain access to them or reach them have been unsuccessful.
11. The Applicant depones that the continued separation of the minors from her has occasioned her severe emotional and psychological trauma which she has led to her being diagnosed with high blood pressure and is currently undergoing treatment at Reliance Hospital. She swore that the trauma occasioned to the minors is grave considering the violent and bully nature of the Respondent. Further, the Applicant swore that the youngest minor aged 1 year was still breastfeeding and is wholly dependent on her yet she has been deprived of maternal nurturing, care and bonding contrary to the best interests and welfare of the child.
12. The Applicant deposes the children are of tender age and as such require maternal affection, emotional support, guidance and consistent care all of which the Respondent is unjustifiably depriving them of yet there are no exceptional circumstances that warrant the exclusion of these children from the custody of the Applicant.
13. The Applicant filed a Further Affidavit dated 17 th June 2026 in which she reveals that the Respondent physically assaulted their minor child whom she was holding in her arms and she rushed the minor to Nairobi south Hospital. Upon learning that she had taken the minor to hospital, the Respondent confronted her and violently assaulted her resulting to injuries and visible bruises on her face and arm.
14. Prior to the initiation of the proceedings, the applicant avers that efforts were made through the Sulh Consultancy Nairobi South C to amicably resolve issues concerning the welfare, maintenance and support of the minor. During the proceedings before the Sulh Consultancy led by former Kadhi, the Respondent proposed a maintenance amount that was considered inadequate by the elders and the Kadhi. Nevertheless, in the interest of reconciliation and welfare of the minors, she was advised to relocate to a more affordable area within Nairobi to accommodate the respondent’s proposal. Despite the said efforts, the Respondent subsequently failed and refused to honour the maintenance arrangements reached. Furthermore, the former Kadhi personally engaged the Respondent and members of his family urged him to assume responsibility for the maintenance and welfare of the minor, but the respondent declined and refused to cater for the minor despite being under both a legal and religious obligation to do so.
15. The Applicant denies the authenticity, accuracy and evidential value of the audio recording relied upon by the respondent as the same was made during a meeting convened by the Children’s Office and attended by family elders for the sole purpose of discussing the welfare of the minor and persuading the Respondent to provide maintenance and support for the child. She further avers that the said recording has been edited, manipulated and taken out of context with the intention of misleading the court.
16. The Applicant avers that throughout the period material to the proceedings in the Kadhi Court, the respondent has neglected and refused to provide for the minor’s maintenance including house rent, food, clothing, education and other essential needs forcing her brother to maintain the minors. Further, the mpesa statements exhibited by the respondent do not demonstrate payment of maintenance or upkeep for the minors but comprise of the Respondent’s dowry obligations. The Applicant reiterates that the respondent has consistently failed, neglected and refused to provide adequate financial support for the minors despite requests and interventions by family members, elders and religious leaders.
17. The Applicant contends that the institution of the proceedings in Thika Kadhi’s Court after the Respondent had declined to comply with the intervention of the Nairobi South C former Kadhi’s office was intended to avoid accountability and frustrate efforts aimed at securing the welfare and maintenance of the minor. The Applicant further states that the Children Officer filed a report in Kadhi’s Court Case No. KCPSC E001 of 2026 at the Thika Kadhi’s Court for consideration and the Department of Children Services recommended that the parties be granted joint legal custody of the minors while the primary care and day to day custody of all minors be vested with her as their mother.
The Respondent’s Case
18. The Respondent states that Kadhi Court invoked its jurisdiction over this matter as both parties profess the Muslim faith and the dispute concerns custody, care, control, welfare and parental responsibility of minors arising from a dissolved Islamic marriage.
19. Following the dissolution of the marriage, the Respondent depones that the applicant voluntarily surrendered custody, care and control of all seven children to him on 17 th December 2025 whereof she expressly stated that she was unable and unwilling to continue caring for them.
20. The Respondent thus deposed that since 17 th December 2025, all the minors have continuously resided under his custody, care and control and he has solely provided for their educational, medical, material, emotional, spiritual and daily welfare needs. Further as demonstrated by the communication exchange between the parties immediately after the divorce, he affirmed that he has consistently engaged the Applicant respectfully and constructively regarding the minors’ welfare including discussions on upkeep, schooling, medical care, rent, support, madrassa arrangements and structed co-parenting.
21. The Respondent pointed out that the Applicant’s five-month delay in filing the current application despite alleging in December 2025 that her children had been taken away forcefully, demonstrates a lack of urgency and good faith. The Respondent contended that the unexplained delay confirms that the application is not motivated by genuine parental concern but is a procedural afterthought. Pointedly, the Applicant depones the application appears designed to obstruct the ongoing proceedings before the Kadhi Court.
22. The Respondent deponed that the Applicant’s documented history of violence and cruel conduct towards the children is documented as evidenced by previous report at Langata Children’s Office is a direct contradiction of her present attempt in which she portrays herself as a caring and protective mother. The Respondent further swore that the Applicant’s conduct which includes voluntary surrender of all seven children in December 2025, failing to support them for months and unlawfully abducting one child to use for legal leverage proves she does not have the children’s best interests at heart. The Respondent depones that the Applicant’s systematic disregard for the children welfare, education and stability starkingly contradicts any claim of genuine parental concern. The Respondent accuses the Applicant of being motivated by bad faith and a calculated desire to coerce and harass him through the minor contrary to the best interests o the child principle under Article 53(2) of the Constitution.
23. Responding to the allegation of storming into the matrimonial home and forcefully removing the minors, the respondent deposes that the information is false, unsupported and lacks material particulars including the specific date, time, circumstances and reports.
24. The Respondent affirmed that after the voluntary return of the minors to his care, he made several efforts through the children’s office at Langata to establish structured and documented access, to enable the Applicant preserve the mother-child bond. The Respondent disclosed that despite the intervention by the Children’s Office, mediation and access arrangements could not be finalized due to the Applicant’s refusal to abide by a formal and signed arrangements through the Sulh Consultancy.
25. The Respondent explained that his decision to initiate Kadhi court proceedings was forced by the Applicant’s own conduct and a genuine concern for the minor’s welfare and education when on 27 th April 2026, the minor was taken away from his home without his consent and stopped attending school yet the Applicant remained silent and refused to provide any information on the child’s whereabouts and safety.
26. The Respondent depones that as a result, he reported the matter to at Akila Police Station and thereafter circulated a missing child notice in a genuine effort to trace the child and safeguard his welfare. Prior to filing the Kadhi Court proceedings, the said minor had been absent from school since 28 th April 2026, a fact independently confirmed by the school administration through a letter dated 30 th April 2026, which the Applicant failed to disclose to this court. The Respondent deponed that the Applicant’s actions of removing the subject minor from school and withholding him from attending school directly undermines the child’s constitutional right to education and welfare.
27. The Respondent depones that the applicant has not placed before the court any credible evidence showing that the minors were concealed, hidden, neglected, abused and exposed to danger while under his custody. Further, the applicant’s allegations that he suffers from mental illness are false, scandalous, malicious, unsupported and intended to solely prejudice this court against him. No psychiatric report, medical assessment, police report, criminal proceedings, children’s officer report or independent evidence has been annexed to substantiate the said allegations. Equally the allegations of physical assault, abuse and violence against the minors are unsupported by any criminal complaint, OB extract, medical causation report or independent witness evidence.
28. The Respondent depones that the ex parte orders issued by the Kadhi Court were temporary, lawful and issued strictly in the best interests of the minors pending an inter parties hearing. Further, the applicant was granted 14 days within which to file and serve her response and the matter was fixed for mention. Further, Article 170(5) of the Constitution grants the Kadhi Court jurisdiction to determine questions of Muslim law relating to personal status, marriage, divorce and inheritance where all the parties profess Muslim faith and submit to the Kadhi Court’s jurisdiction. Additionally, appellate and supervisory courts ought not to interfere with the discretionary or interim orders issued by the lower courts unless there is clear illegality, irrationality, procedural impropriety or want of jurisdiction.
29. The Respondent argues that the welfare, education, stability, continuity and best interests of the minors are best served by maintaining the status quo pending the Kadhi proceedings. The present proceedings have been prematurely invoked in the circumstances where the substantive dispute remains pending before the Kadhi Court, which is fully capable of hearing evidence from both parties and determining the matter on merit.
30. Parties put in written submissions.
The Applicant’s Submissions
31. The Applicant submits that the supervisory jurisdiction of this Court under Article 165(6) of the Constitution is intended to preserve the integrity of judicial proceedings and to prevent subordinate courts from acting in a manner that violates the constitution, exceeds jurisdiction or occasions miscarriage of justice. The Applicant argues that her complaint is not that the Kadhi court reached an incorrect conclusion on the evidence, rather it is that the impugned orders were obtained ex parte through material non disclosure and concealment of relevant facts thereby denying her the opportunity to be heard on matters directly affecting her parental rights and the welfare of the children. The Respondent’s invitation to the court to refrain from intervening would effectively require her to endure proceedings founded upon orders she contends were irregularly obtained while remaining separated from her young children.
32. Relying on the case of The Naivasha Municipal Council vs Benson Muturi Kamande [2010] KEHC 1591 (KLR) , the Applicant submits that the jurisdiction to set aside ex parte orders is discretionary and exists to prevent injustice, undue hardship and an abuse of the court process. The overriding consideration is whether maintaining the impugned orders would result in an injustice that outweighs any inconvenience occasioned by setting them aside. The Applicant argues that the Respondent failed to make full disclosure before the Kadhi’s Court and presented a one-sided account of the dispute thereby inducing the court to issue orders which substantially interfered with her parental rights. The applicant cites Article 50(1) and 25(c) of the Constitution and the case of Mbaki & Others vs Macharia & Another [2005] 2 EA 206 and argues that when a party is denied an opportunity to be heard before adverse orders are made, such orders cannot be permitted to stand if they occasion injustice.
33. The Applicant contends that the impugned orders have had continuing consequences as they effectively altered the custody, care and control of seven minors, her parental responsibility and continue to regulate the children’s lives pending the determination of the proceedings. Unless the impugned orders are stayed and set aside, she will continue to suffer irreparable prejudice by remaining separated from her children while the substantive proceedings continue. Such prejudice cannot adequately be remedied by a future appeal.
34. The Applicant argues that she has demonstrated sufficient legal and factual grounds to warrant the grant of interim custody, care and control of the seven minors pending the hearing and determination of the proceedings. The Applicant refers to Article 53(2) of the Constitution and Sections 8, 9 and 114 of the Children Act and the cases of JKN vs HWN [2019] eKLR and CA vs KO [2024] KEHC 6076 (KLR) and submits that the paramount consideration in children’s cases is the welfare and best interests of the child and not the competing legal rights of either parent. The Applicant further submits that the existing arrangement cannot be maintained as the same has been challenged as having arisen through ex parte proceedings tainted by procedural unfairness. Further, the Applicant denies that she voluntarily surrendered the children. She further argues that the impugned orders resulted in all seven children being removed from her custody without full inter parties hearing. Such a drastic interference with parental relationship should only occur where compelling evidence demonstrates that the children’s immediate safety or welfare is at risk. No such evidence has been conclusively established before the court.
35. The Applicant asserts that among the seven minors are children of tender years including a breast feeding infant. Relying on the cases of JO vs SAO [2016] eKLR and Karanu vs Karanu [1975] EA 18 , the Applicant argues that children of tender years ordinarily benefit from the care, affection and nurturing of their mother unless exceptional circumstances are demonstrated. The Respondent has attempted to persuade the court that exceptional circumstances exist by alleging abandonment, instability and neglect on her part. However, the said allegations remain contested and no independent findings have been made by any competent court confirming the said allegations. The Applicant contends that the separation of a breastfeeding child from the mother is a matter that should only occur where there exists cogent and compelling evidence demonstrating that remaining with the mother would expose the child to immediate danger or serious harm, which is not the case herein. Equally significant are the emotional and psychological needs of the girls of tender years. The court is invited to take judicial notice that maternal care plays a critical role in the emotional development of young children, particularly where there is no evidence demonstrating that the mother poses a danger to them.
36. The Applicant argues that the respondent’s submissions have concentrated almost exclusively on criticizing her conduct but the inquiry before the court is not whether she is a perfect parent. The legal question is whether it has been demonstrated on credible evidence, that allowing the children to remain with their mother pending the hearing would be contrary to their best interests. The respondent has failed to discharge that burden.
The Respondent’s Submissions
37. The Respondent submits that the Applicant ought to have waited for the Kadhi court to decide the matter on merit and if aggrieved by the decision, file an appeal or seek review of that decision. The applicant has failed to establish any of the grounds that would justify this court’s intervention under Article 165(6) and (7) of the Constitution . She has neither demonstrated that the Kadhi’s Court acted without jurisdiction, in excess of its jurisdiction, in breach of rules of natural justice nor that there exists any illegality or procedural impropriety warranting the exercise of this court’s supervisory powers. Reliance was placed in the case of Asha Hamisi Nimutende vs Mwaronga Nassoro & Another [2019] eKLR where the court held that High Court’s supervisory powers are exercisable with caution and only where the inferior court has exceeded its jurisdiction or where a party’s constitutional rights are being abrogated.
38. The Respondent argues that in all matters concerning children, the paramount consideration is the best interests of the child as enshrined in Article 53(2) of the Constitution and Section 8 of the Children Act. The court’s primary duty is to safeguard and promote the rights and welfare of the child. He submits that the ex parte orders issued by the Kadhi’s court on 11 th May 2026 were a necessary and lawful intervention to protect the welfare of the minors, particularly the subject minor AAIS whose education was being jeopardized by the Applicant’s actions. The Applicant misled the court by claiming that she was unaware of the minor’s welfare but he presented evidence to the Kadhi court that the subject minor had been out of school since 28 th April 2026 as confirmed by the letter from Arrahmah Academy. The applicant was in contact with the child and was aware of his absence from school but failed to act in his best interests. She was in possession of the subject minor and was actively preventing him from attending school, using him as a legal lever to coerce and harass him. The Respondent argues that, that is a clear demonstration of bad faith and a disregard for the child’s constitutional right to education. He further invites the court to consider that safeguarding the child’s right to education is an essential component of the constitutional principle of the best interests of the child.
39. The Respondent submits that the applicant voluntarily surrendered all the minors to his father on 17 th December 2025 stating that she was unable to continue caring for them. He further submits that he has paid maintenance of the child following the Sulh mediation which required him to pay Kshs. 40,000/- Further, on the allegations of assault, the respondent submits that the said allegations have not been substantiated, that the photos provided do not have a time stamp or date and no hospital record or police report confirming that she reported the incident at the time has been produced. Additionally, although the Applicant has claimed to be a caring mother, she has not sought access to the minors for over 6 months. Her own actions, including voluntarily surrendering the minors and failing to support them for months, directly contradicts her present attempt to portray herself as a caring and protective mother.
40. The Respondent contends that the Children’s officer has produced two reports with contradicting opinions as to who should have custody, care and control of the minors, which raises questions about the reliability of the reports. Further, it underscores that the court should not unsettle the minors in their current living arrangement as it would distort their lives. Further, the Applicant has given inconsistent dates of the divorce which suggests that she is not being truthful about the circumstances surrounding the separation and the subsequent custody arrangements. Additionally, the applicant’s account of how the subject minor AAIS came to her custody is materially inconsistent with the minor’s own account which is a calculated attempt to conceal the fact that she deliberately kept the child away from school to use him as a legal lever against him. The applicant in her Further Affidavit states tat he assaulted the minor whom she was holding in her arms and that she rushed the minor to Nairobi South Hospital for treatment which contradicts the medical report dated 15/2/2025 which indicates that the assault occurred sometime in April 2022, almost three years after. Further, the alleged assault on the minor contradicts the Applicant’s earlier claim that the minor sustained an eye injury as a result of slaps and beatings and was treated at Lions Sight Eye Clinic on 28 th April 2026.
41. The Respondent asserts that he has been the stable and consistent parent for the minors since December 2025 when the Applicant willingly surrendered the minors. He has solely provided for their educational, medical, material, emotional, spiritual and daily welfare needs. He further submits that the home environment is safe, stable and capable of meeting the children’s basic needs as provided for in the children’s report. The applicant’s conduct on the other hand is inconsistent with her present assertions that the minors were subjected to abuse and their welfare was in imminent danger. From December 2025, until he instituted the proceedings before the Kadhi’s Court, the applicant did not seek any court intervention or other legal remedy in respect of custody, care and control of the minors.
42. The respondent referred to the case of SKM vs LMK (Suing as mother and next friends of NM & AK Minors) [2025] KEHC 5054 (KLR) and submits that abruptly disrupting the minors’ established environment would be contrary to their welfare and best interests. The children have been under his continuous care and have settled into a stable routine and he has demonstrated a commitment to his parental responsibilities and desire to facilitate the Applicant’s access to the children in a structured manner. On the other hand, the Applicant’s conduct demonstrates inconsistency as she voluntarily returned the minors to his care and thereafter remained absent from their daily upbringing, education, supervision and welfare for several months before filing the present proceedings.
43. The Respondent filed Supplementary Submissions dated 1 st July 2026 and submits that the applicant’s case is primarily funded upon general denials without producing any independent evidence capable of displacing the documentary material already before the court. He further submits that the applicant’s submissions seek to introduce factual assertions that either do not appear in her affidavits or are unsupported by documentary evidence, which he urges the court to disregard.
44. The Respondent argues that the tender years doctrine does not override documented evidence of physical violence and the child’s own expressed wishes which constitute exceptional circumstances. Custody must be determined by the child’s best interests not by age or gender-based presumptions.
Analysis and Determination
45. Having regard to the parties’ dispositions in the affidavits and their submissions herein, this Court distils there is only one issue for determination, namely,
a) Whether the ex parte order dated 11 th May, 2026 issued in Thika Kadhi’s Court in case No. KCPSC/001/2026 should be set aside, and if so, on what terms, guided by the best interests of the child principle.
46. The Respondent argued that this Court should not have intervened to stay the order of the Kadhis Court because the matter is live and there was no contention that the Kadhi’s Court had issued orders in excess of its jurisdiction. Indeed, it is true the Applicant did not contest the jurisdiction of the Kadhi’s Court. However, the Respondent raised it and by so stating invited the Court to determine competence of the Kadhi’s Court to adjudicate and issue the orders of 11 th May, 2026. The fact that the Applicant did not raise the jurisdictional question would not stop this Court from interrogating the issue as jurisdiction is conferred by the Constitution or the statute, the fact that a party has not objected to jurisdiction or has even consented or acquiesced to a body that has no jurisdiction will not confer jurisdiction if none exists in the first place.
47. The question thus becomes, does the Kadhi’s Court possess the requisite jurisdiction to adjudicate over disputes involving custody, maintenance or other related matters including guardianship of children?
48. The Constitution in Article 170 (5), confers jurisdiction on the Kadhi’s court in the following terms:
“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 the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.”
49. The relevant statutory provision on jurisdiction of Kadhi’s Court is section 5 of the Kadhi’s Court Act, cap 11 Laws of Kenya, which provides as follows:
“A Kadhi’s court shall have and exercise the following jurisdiction, namely the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion; but nothing in this section shall limit the jurisdiction of the High Court or of any subordinate court in any proceeding which comes before it.”
50. There has been judicial interpretation on the mandate of the Kadhi’s Court in children matters in which Courts have consistently held that the jurisdiction of Kadhi’s Court does not extend to matters exclusively dealing with children as that is the preserve of the Children Court established under the Children Act, 2022 or the High Court. In MNO v SJM [2021] KEHC 1021 (KLR), the Court held as follows:
“... the Constitution and Kadhis Court Act remain crystal clear that the appropriateness of jurisdiction issues on children remain vested in the Children Court. There is no philosophical jurisdiction in a Kadhis Court dealing with such claims, either by invoking consent, proximity, convenience or any other extra ordinary c
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1. The Notice of Motion Application dated 12 th May 2026 is supported by the affidavit of the Applicant, R.D.T of even date and a further affidavit dated 17 th June, 2026.
2. The Applicant seeks review and setting aside of the ex parte order made on 11 th May 2026 in Thika Kadhi Court Case No. KCPSC/E001/2026.
3. The Applicant further seeks an order to compel the respondent to cater for the school fees and all school related expenses for minors of school going age while they remain in the custody, care and control of the Applicant.
4. In opposition to the application, the Respondent, A.I.S, filed a Replying affidavit dated 29 th May 2026.
Applicant’s Case.
5. The Applicant deposes the Respondent obtained ex parte orders through non disclosure and concealment of material facts which thereby misleading the court into issuing orders without the full and true information of all the relevant circumstances. The Applicant swore that issuance of the ex parte order was a constitutes the denial of right to be heard under Article 50 of the Constitution.
6. The Applicant deponed that she and the Respondent were lawfully married under Islamic Law in the year 2011. Together they are blessed with seven children aged between one and thirteen years.
7. The Applicant swore that on 13 th December, 2025, the Respondent violently assaulted her and divorced her. She disclosed that prior to the divorce, the Respondent had threatened her that upon divorce she would forfeit the custody of the minors to him. The Applicant depones that while she was still in a state of duress and intimidation from the Respondent; the Respondent stormed their matrimonial home and forcefully removed all the minors including the youngest child who was barely one year old and was still breast feeding.
8. The Applicant contends that attempts by the Children’s Office to summon the Respondent proved futile. The Children Office thus issued the Applicant with a referral letter to the National Legal aid Clinic for legal assistance. The Applicant swore that her efforts to reach out to the Respondent to allow access to the minors have been unsuccessful. She swore that she has completely been denied access to the children by the Respondent.
9. The Applicant depones that the Respondent is a person who suffers recurrent mental illness and the condition has on several occasions caused him to physically assault the eldest minor, who is aged 13 years, especially after the minor used the Respondent’s phone to contact the Applicant (the mother). As a result of repeated assaults, the said minor fled and sought refuge with his mother (the Applicant) and is currently residing with him at the Applicant’s uncle’s residence in Ngong.
10. The Applicant revealed that said minor sustained an eye injury occasioned by slaps and beatings inflicted by the Respondent and was treated and discharged at Lions Sight Eye Clinic on 28 th April 2026. The Applicant thus expressed fears for the welfare and safety of not only the eldest minor but also the rest minors whom she is apprehensive remain in grave danger of persistent physical assault as all efforts by family members to gain access to them or reach them have been unsuccessful.
11. The Applicant depones that the continued separation of the minors from her has occasioned her severe emotional and psychological trauma which she has led to her being diagnosed with high blood pressure and is currently undergoing treatment at Reliance Hospital. She swore that the trauma occasioned to the minors is grave considering the violent and bully nature of the Respondent. Further, the Applicant swore that the youngest minor aged 1 year was still breastfeeding and is wholly dependent on her yet she has been deprived of maternal nurturing, care and bonding contrary to the best interests and welfare of the child.
12. The Applicant deposes the children are of tender age and as such require maternal affection, emotional support, guidance and consistent care all of which the Respondent is unjustifiably depriving them of yet there are no exceptional circumstances that warrant the exclusion of these children from the custody of the Applicant.
13. The Applicant filed a Further Affidavit dated 17 th June 2026 in which she reveals that the Respondent physically assaulted their minor child whom she was holding in her arms and she rushed the minor to Nairobi south Hospital. Upon learning that she had taken the minor to hospital, the Respondent confronted her and violently assaulted her resulting to injuries and visible bruises on her face and arm.
14. Prior to the initiation of the proceedings, the applicant avers that efforts were made through the Sulh Consultancy Nairobi South C to amicably resolve issues concerning the welfare, maintenance and support of the minor. During the proceedings before the Sulh Consultancy led by former Kadhi, the Respondent proposed a maintenance amount that was considered inadequate by the elders and the Kadhi. Nevertheless, in the interest of reconciliation and welfare of the minors, she was advised to relocate to a more affordable area within Nairobi to accommodate the respondent’s proposal. Despite the said efforts, the Respondent subsequently failed and refused to honour the maintenance arrangements reached. Furthermore, the former Kadhi personally engaged the Respondent and members of his family urged him to assume responsibility for the maintenance and welfare of the minor, but the respondent declined and refused to cater for the minor despite being under both a legal and religious obligation to do so.
15. The Applicant denies the authenticity, accuracy and evidential value of the audio recording relied upon by the respondent as the same was made during a meeting convened by the Children’s Office and attended by family elders for the sole purpose of discussing the welfare of the minor and persuading the Respondent to provide maintenance and support for the child. She further avers that the said recording has been edited, manipulated and taken out of context with the intention of misleading the court.
16. The Applicant avers that throughout the period material to the proceedings in the Kadhi Court, the respondent has neglected and refused to provide for the minor’s maintenance including house rent, food, clothing, education and other essential needs forcing her brother to maintain the minors. Further, the mpesa statements exhibited by the respondent do not demonstrate payment of maintenance or upkeep for the minors but comprise of the Respondent’s dowry obligations. The Applicant reiterates that the respondent has consistently failed, neglected and refused to provide adequate financial support for the minors despite requests and interventions by family members, elders and religious leaders.
17. The Applicant contends that the institution of the proceedings in Thika Kadhi’s Court after the Respondent had declined to comply with the intervention of the Nairobi South C former Kadhi’s office was intended to avoid accountability and frustrate efforts aimed at securing the welfare and maintenance of the minor. The Applicant further states that the Children Officer filed a report in Kadhi’s Court Case No. KCPSC E001 of 2026 at the Thika Kadhi’s Court for consideration and the Department of Children Services recommended that the parties be granted joint legal custody of the minors while the primary care and day to day custody of all minors be vested with her as their mother.
The Respondent’s Case
18. The Respondent states that Kadhi Court invoked its jurisdiction over this matter as both parties profess the Muslim faith and the dispute concerns custody, care, control, welfare and parental responsibility of minors arising from a dissolved Islamic marriage.
19. Following the dissolution of the marriage, the Respondent depones that the applicant voluntarily surrendered custody, care and control of all seven children to him on 17 th December 2025 whereof she expressly stated that she was unable and unwilling to continue caring for them.
20. The Respondent thus deposed that since 17 th December 2025, all the minors have continuously resided under his custody, care and control and he has solely provided for their educational, medical, material, emotional, spiritual and daily welfare needs. Further as demonstrated by the communication exchange between the parties immediately after the divorce, he affirmed that he has consistently engaged the Applicant respectfully and constructively regarding the minors’ welfare including discussions on upkeep, schooling, medical care, rent, support, madrassa arrangements and structed co-parenting.
21. The Respondent pointed out that the Applicant’s five-month delay in filing the current application despite alleging in December 2025 that her children had been taken away forcefully, demonstrates a lack of urgency and good faith. The Respondent contended that the unexplained delay confirms that the application is not motivated by genuine parental concern but is a procedural afterthought. Pointedly, the Applicant depones the application appears designed to obstruct the ongoing proceedings before the Kadhi Court.
22. The Respondent deponed that the Applicant’s documented history of violence and cruel conduct towards the children is documented as evidenced by previous report at Langata Children’s Office is a direct contradiction of her present attempt in which she portrays herself as a caring and protective mother. The Respondent further swore that the Applicant’s conduct which includes voluntary surrender of all seven children in December 2025, failing to support them for months and unlawfully abducting one child to use for legal leverage proves she does not have the children’s best interests at heart. The Respondent depones that the Applicant’s systematic disregard for the children welfare, education and stability starkingly contradicts any claim of genuine parental concern. The Respondent accuses the Applicant of being motivated by bad faith and a calculated desire to coerce and harass him through the minor contrary to the best interests o the child principle under Article 53(2) of the Constitution.
23. Responding to the allegation of storming into the matrimonial home and forcefully removing the minors, the respondent deposes that the information is false, unsupported and lacks material particulars including the specific date, time, circumstances and reports.
24. The Respondent affirmed that after the voluntary return of the minors to his care, he made several efforts through the children’s office at Langata to establish structured and documented access, to enable the Applicant preserve the mother-child bond. The Respondent disclosed that despite the intervention by the Children’s Office, mediation and access arrangements could not be finalized due to the Applicant’s refusal to abide by a formal and signed arrangements through the Sulh Consultancy.
25. The Respondent explained that his decision to initiate Kadhi court proceedings was forced by the Applicant’s own conduct and a genuine concern for the minor’s welfare and education when on 27 th April 2026, the minor was taken away from his home without his consent and stopped attending school yet the Applicant remained silent and refused to provide any information on the child’s whereabouts and safety.
26. The Respondent depones that as a result, he reported the matter to at Akila Police Station and thereafter circulated a missing child notice in a genuine effort to trace the child and safeguard his welfare. Prior to filing the Kadhi Court proceedings, the said minor had been absent from school since 28 th April 2026, a fact independently confirmed by the school administration through a letter dated 30 th April 2026, which the Applicant failed to disclose to this court. The Respondent deponed that the Applicant’s actions of removing the subject minor from school and withholding him from attending school directly undermines the child’s constitutional right to education and welfare.
27. The Respondent depones that the applicant has not placed before the court any credible evidence showing that the minors were concealed, hidden, neglected, abused and exposed to danger while under his custody. Further, the applicant’s allegations that he suffers from mental illness are false, scandalous, malicious, unsupported and intended to solely prejudice this court against him. No psychiatric report, medical assessment, police report, criminal proceedings, children’s officer report or independent evidence has been annexed to substantiate the said allegations. Equally the allegations of physical assault, abuse and violence against the minors are unsupported by any criminal complaint, OB extract, medical causation report or independent witness evidence.
28. The Respondent depones that the ex parte orders issued by the Kadhi Court were temporary, lawful and issued strictly in the best interests of the minors pending an inter parties hearing. Further, the applicant was granted 14 days within which to file and serve her response and the matter was fixed for mention. Further, Article 170(5) of the Constitution grants the Kadhi Court jurisdiction to determine questions of Muslim law relating to personal status, marriage, divorce and inheritance where all the parties profess Muslim faith and submit to the Kadhi Court’s jurisdiction. Additionally, appellate and supervisory courts ought not to interfere with the discretionary or interim orders issued by the lower courts unless there is clear illegality, irrationality, procedural impropriety or want of jurisdiction.
29. The Respondent argues that the welfare, education, stability, continuity and best interests of the minors are best served by maintaining the status quo pending the Kadhi proceedings. The present proceedings have been prematurely invoked in the circumstances where the substantive dispute remains pending before the Kadhi Court, which is fully capable of hearing evidence from both parties and determining the matter on merit.
30. Parties put in written submissions.
The Applicant’s Submissions
31. The Applicant submits that the supervisory jurisdiction of this Court under Article 165(6) of the Constitution is intended to preserve the integrity of judicial proceedings and to prevent subordinate courts from acting in a manner that violates the constitution, exceeds jurisdiction or occasions miscarriage of justice. The Applicant argues that her complaint is not that the Kadhi court reached an incorrect conclusion on the evidence, rather it is that the impugned orders were obtained ex parte through material non disclosure and concealment of relevant facts thereby denying her the opportunity to be heard on matters directly affecting her parental rights and the welfare of the children. The Respondent’s invitation to the court to refrain from intervening would effectively require her to endure proceedings founded upon orders she contends were irregularly obtained while remaining separated from her young children.
32. Relying on the case of The Naivasha Municipal Council vs Benson Muturi Kamande [2010] KEHC 1591 (KLR) , the Applicant submits that the jurisdiction to set aside ex parte orders is discretionary and exists to prevent injustice, undue hardship and an abuse of the court process. The overriding consideration is whether maintaining the impugned orders would result in an injustice that outweighs any inconvenience occasioned by setting them aside. The Applicant argues that the Respondent failed to make full disclosure before the Kadhi’s Court and presented a one-sided account of the dispute thereby inducing the court to issue orders which substantially interfered with her parental rights. The applicant cites Article 50(1) and 25(c) of the Constitution and the case of Mbaki & Others vs Macharia & Another [2005] 2 EA 206 and argues that when a party is denied an opportunity to be heard before adverse orders are made, such orders cannot be permitted to stand if they occasion injustice.
33. The Applicant contends that the impugned orders have had continuing consequences as they effectively altered the custody, care and control of seven minors, her parental responsibility and continue to regulate the children’s lives pending the determination of the proceedings. Unless the impugned orders are stayed and set aside, she will continue to suffer irreparable prejudice by remaining separated from her children while the substantive proceedings continue. Such prejudice cannot adequately be remedied by a future appeal.
34. The Applicant argues that she has demonstrated sufficient legal and factual grounds to warrant the grant of interim custody, care and control of the seven minors pending the hearing and determination of the proceedings. The Applicant refers to Article 53(2) of the Constitution and Sections 8, 9 and 114 of the Children Act and the cases of JKN vs HWN [2019] eKLR and CA vs KO [2024] KEHC 6076 (KLR) and submits that the paramount consideration in children’s cases is the welfare and best interests of the child and not the competing legal rights of either parent. The Applicant further submits that the existing arrangement cannot be maintained as the same has been challenged as having arisen through ex parte proceedings tainted by procedural unfairness. Further, the Applicant denies that she voluntarily surrendered the children. She further argues that the impugned orders resulted in all seven children being removed from her custody without full inter parties hearing. Such a drastic interference with parental relationship should only occur where compelling evidence demonstrates that the children’s immediate safety or welfare is at risk. No such evidence has been conclusively established before the court.
35. The Applicant asserts that among the seven minors are children of tender years including a breast feeding infant. Relying on the cases of JO vs SAO [2016] eKLR and Karanu vs Karanu [1975] EA 18 , the Applicant argues that children of tender years ordinarily benefit from the care, affection and nurturing of their mother unless exceptional circumstances are demonstrated. The Respondent has attempted to persuade the court that exceptional circumstances exist by alleging abandonment, instability and neglect on her part. However, the said allegations remain contested and no independent findings have been made by any competent court confirming the said allegations. The Applicant contends that the separation of a breastfeeding child from the mother is a matter that should only occur where there exists cogent and compelling evidence demonstrating that remaining with the mother would expose the child to immediate danger or serious harm, which is not the case herein. Equally significant are the emotional and psychological needs of the girls of tender years. The court is invited to take judicial notice that maternal care plays a critical role in the emotional development of young children, particularly where there is no evidence demonstrating that the mother poses a danger to them.
36. The Applicant argues that the respondent’s submissions have concentrated almost exclusively on criticizing her conduct but the inquiry before the court is not whether she is a perfect parent. The legal question is whether it has been demonstrated on credible evidence, that allowing the children to remain with their mother pending the hearing would be contrary to their best interests. The respondent has failed to discharge that burden.
The Respondent’s Submissions
37. The Respondent submits that the Applicant ought to have waited for the Kadhi court to decide the matter on merit and if aggrieved by the decision, file an appeal or seek review of that decision. The applicant has failed to establish any of the grounds that would justify this court’s intervention under Article 165(6) and (7) of the Constitution . She has neither demonstrated that the Kadhi’s Court acted without jurisdiction, in excess of its jurisdiction, in breach of rules of natural justice nor that there exists any illegality or procedural impropriety warranting the exercise of this court’s supervisory powers. Reliance was placed in the case of Asha Hamisi Nimutende vs Mwaronga Nassoro & Another [2019] eKLR where the court held that High Court’s supervisory powers are exercisable with caution and only where the inferior court has exceeded its jurisdiction or where a party’s constitutional rights are being abrogated.
38. The Respondent argues that in all matters concerning children, the paramount consideration is the best interests of the child as enshrined in Article 53(2) of the Constitution and Section 8 of the Children Act. The court’s primary duty is to safeguard and promote the rights and welfare of the child. He submits that the ex parte orders issued by the Kadhi’s court on 11 th May 2026 were a necessary and lawful intervention to protect the welfare of the minors, particularly the subject minor AAIS whose education was being jeopardized by the Applicant’s actions. The Applicant misled the court by claiming that she was unaware of the minor’s welfare but he presented evidence to the Kadhi court that the subject minor had been out of school since 28 th April 2026 as confirmed by the letter from Arrahmah Academy. The applicant was in contact with the child and was aware of his absence from school but failed to act in his best interests. She was in possession of the subject minor and was actively preventing him from attending school, using him as a legal lever to coerce and harass him. The Respondent argues that, that is a clear demonstration of bad faith and a disregard for the child’s constitutional right to education. He further invites the court to consider that safeguarding the child’s right to education is an essential component of the constitutional principle of the best interests of the child.
39. The Respondent submits that the applicant voluntarily surrendered all the minors to his father on 17 th December 2025 stating that she was unable to continue caring for them. He further submits that he has paid maintenance of the child following the Sulh mediation which required him to pay Kshs. 40,000/- Further, on the allegations of assault, the respondent submits that the said allegations have not been substantiated, that the photos provided do not have a time stamp or date and no hospital record or police report confirming that she reported the incident at the time has been produced. Additionally, although the Applicant has claimed to be a caring mother, she has not sought access to the minors for over 6 months. Her own actions, including voluntarily surrendering the minors and failing to support them for months, directly contradicts her present attempt to portray herself as a caring and protective mother.
40. The Respondent contends that the Children’s officer has produced two reports with contradicting opinions as to who should have custody, care and control of the minors, which raises questions about the reliability of the reports. Further, it underscores that the court should not unsettle the minors in their current living arrangement as it would distort their lives. Further, the Applicant has given inconsistent dates of the divorce which suggests that she is not being truthful about the circumstances surrounding the separation and the subsequent custody arrangements. Additionally, the applicant’s account of how the subject minor AAIS came to her custody is materially inconsistent with the minor’s own account which is a calculated attempt to conceal the fact that she deliberately kept the child away from school to use him as a legal lever against him. The applicant in her Further Affidavit states tat he assaulted the minor whom she was holding in her arms and that she rushed the minor to Nairobi South Hospital for treatment which contradicts the medical report dated 15/2/2025 which indicates that the assault occurred sometime in April 2022, almost three years after. Further, the alleged assault on the minor contradicts the Applicant’s earlier claim that the minor sustained an eye injury as a result of slaps and beatings and was treated at Lions Sight Eye Clinic on 28 th April 2026.
41. The Respondent asserts that he has been the stable and consistent parent for the minors since December 2025 when the Applicant willingly surrendered the minors. He has solely provided for their educational, medical, material, emotional, spiritual and daily welfare needs. He further submits that the home environment is safe, stable and capable of meeting the children’s basic needs as provided for in the children’s report. The applicant’s conduct on the other hand is inconsistent with her present assertions that the minors were subjected to abuse and their welfare was in imminent danger. From December 2025, until he instituted the proceedings before the Kadhi’s Court, the applicant did not seek any court intervention or other legal remedy in respect of custody, care and control of the minors.
42. The respondent referred to the case of SKM vs LMK (Suing as mother and next friends of NM & AK Minors) [2025] KEHC 5054 (KLR) and submits that abruptly disrupting the minors’ established environment would be contrary to their welfare and best interests. The children have been under his continuous care and have settled into a stable routine and he has demonstrated a commitment to his parental responsibilities and desire to facilitate the Applicant’s access to the children in a structured manner. On the other hand, the Applicant’s conduct demonstrates inconsistency as she voluntarily returned the minors to his care and thereafter remained absent from their daily upbringing, education, supervision and welfare for several months before filing the present proceedings.
43. The Respondent filed Supplementary Submissions dated 1 st July 2026 and submits that the applicant’s case is primarily funded upon general denials without producing any independent evidence capable of displacing the documentary material already before the court. He further submits that the applicant’s submissions seek to introduce factual assertions that either do not appear in her affidavits or are unsupported by documentary evidence, which he urges the court to disregard.
44. The Respondent argues that the tender years doctrine does not override documented evidence of physical violence and the child’s own expressed wishes which constitute exceptional circumstances. Custody must be determined by the child’s best interests not by age or gender-based presumptions.
Analysis and Determination
45. Having regard to the parties’ dispositions in the affidavits and their submissions herein, this Court distils there is only one issue for determination, namely,
a) Whether the ex parte order dated 11 th May, 2026 issued in Thika Kadhi’s Court in case No. KCPSC/001/2026 should be set aside, and if so, on what terms, guided by the best interests of the child principle.
46. The Respondent argued that this Court should not have intervened to stay the order of the Kadhis Court because the matter is live and there was no contention that the Kadhi’s Court had issued orders in excess of its jurisdiction. Indeed, it is true the Applicant did not contest the jurisdiction of the Kadhi’s Court. However, the Respondent raised it and by so stating invited the Court to determine competence of the Kadhi’s Court to adjudicate and issue the orders of 11 th May, 2026. The fact that the Applicant did not raise the jurisdictional question would not stop this Court from interrogating the issue as jurisdiction is conferred by the Constitution or the statute, the fact that a party has not objected to jurisdiction or has even consented or acquiesced to a body that has no jurisdiction will not confer jurisdiction if none exists in the first place.
47. The question thus becomes, does the Kadhi’s Court possess the requisite jurisdiction to adjudicate over disputes involving custody, maintenance or other related matters including guardianship of children?
48. The Constitution in Article 170 (5), confers jurisdiction on the Kadhi’s court in the following terms:
“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 the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.”
49. The relevant statutory provision on jurisdiction of Kadhi’s Court is section 5 of the Kadhi’s Court Act, cap 11 Laws of Kenya, which provides as follows:
“A Kadhi’s court shall have and exercise the following jurisdiction, namely the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion; but nothing in this section shall limit the jurisdiction of the High Court or of any subordinate court in any proceeding which comes before it.”
50. There has been judicial interpretation on the mandate of the Kadhi’s Court in children matters in which Courts have consistently held that the jurisdiction of Kadhi’s Court does not extend to matters exclusively dealing with children as that is the preserve of the Children Court established under the Children Act, 2022 or the High Court. In MNO v SJM [2021] KEHC 1021 (KLR), the Court held as follows:
“... the Constitution and Kadhis Court Act remain crystal clear that the appropriateness of jurisdiction issues on children remain vested in the Children Court. There is no philosophical jurisdiction in a Kadhis Court dealing with such claims, either by invoking consent, proximity, convenience or any other extra ordinary c
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