|Legal System/History||Earliest evidence of arrival of Muslims in region dates back to 8th century. Omanis captured Mombasa in 1696. British interest in region grew in mid-late 19th century. In 1895, area from coast to Rift Valley declared British East Africa Protectorate, governed with parallel legal systems of African courts applying customary law and courts of colonial power applying British-issued legislation. Personal status left within domain of communal jurisdiction. Independence in 1963. Legal system unified. Qadis’ Courts established to apply personal status law for Muslims under Kadhis’ Courts Act 1967. For the moment, marriage and divorce laws continue to be customary, statutory, Islamic and Hindu laws, though discussions continue on proposed uniform marriage law.|
|School(s) of Fiqh||Diverse Muslim population due to local conversion, presence of Arab and South Asian settlers, and intermarriages, thus various schools represented; majority are Shafi’i, and also sizeable Hanafi communities and Ja’fari, Isma’ili, Zaydi and Ahmadi minority communities.|
|Constitutional Status of Islam(ic Law)||Constitution adopted 12th December 1963; amended in 1964 when Kenya became a republic and amended several times thereafter; major amendment in 1991 reinstated multiparty system. Adopts no official state religion. Article 66(1) to (5) provides for establishment of Kadhis’ Courts.�|
|Court System||Local courts applying customary law abolished in 1967. Four levels of courts: Resident Magistrates’ and District Magistrates’ Courts (1st, 2nd and 3rd classes), Senior Resident Magistrates’ and Chief Magistrate’s Courts, High Court, and Court of Appeal as highest court. Islamic law applied by Kadhis’ Courts where “all the parties profess the Muslim religion” in suits involving “questions of Muslim law relating to personal status, marriage, divorce, or inheritance”. Eight Kadhis’ Courts in Kenya, presided over by Chief Kadhi or a Kadhi appointed by Judicial Services Commission; appeals lie to High Court which sits with Chief Kadhi or two other Kadhis as assessor(s).|
|Relevant Legislation||Mohammedan Marriage and Divorce Registration Act 1906Mohammedan Marriage, Divorce and Succession Act 1920
Guardianship of Infants Act
Kadhis’ Courts Act 1967 (no.14/67)
|Notable Features||Marriage Age: minimum 16 for statutory marriages under the Marriage Act Marriage Registration: statutory (includes Christian), customary, Muslim and Hindu marriages recognised as valid Polygamy: governed by classical law; a criminal offence to marry under civil regime (i.e. under terms of Marriage Act) and contract subsequent marriage under Islamic or customary law.Talaq: governed by classical law
Judicial Divorce: governed by classical law Post-Divorce Maintenance/Financial Arrangements: governed by classical law.
Child Custody and Guardianship: Kadhis’ Courts generally grant custody to mother until 7 years for boys and 14 for girls at which point custody reverts to father; regular court system generally grants longer periods of custody to divorced Muslim mothers.
Succession: governed by classical law; uniform legislation on intestate succession made applicable to all Kenyans in 1972 but 1990 amendment to Succession Act inserted exemption for Muslims
|Law/Case Reporting System||Case reporting through Kenya Law Reports, Kenya Appeal Reports and Kenya Court of Appeal Decisions.|
|International Conventions (with Relevant Reservations)||ICCPR & ICESCR- accession 1972, with reservation to Art. 10(2) of ICESCR CEDAW- accession 1984, without reservationsCRC- signature and ratification 1990, without reservations|
European colonial interest in Kenya began with Portuguese efforts to establish safe ports in the area of Mombasa from 1498. The Omanis captured Mombasa in 1696. British interests in the East African region in the mid to late 19th century led to the formation of the British East Africa Company. In 1895, within a decade of the founding of the East Africa Company, the area from the coast to the Rift Valley was declared the British East Africa Protectorate. Kenya gained independence in June 1963. Under the British protectorate, Kenya had parallel legal systems with African courts applying customary law, and appeals lying with the African Appeal Court, then with the District Officer and then a Court of Review. Muslim personal law was applied by Courts of Liwalis, Mudirs and Kadhis, with appeals lying with the Supreme Court (renamed the High Court after independence). The process of integrating the judicial system began in 1962 when powers of administrative officers to review African Courts’ proceedings were transferred to magistrates. The process was completed by the passage of two acts in 1967. The Magistrates’ Courts Act 1967 abolished African Courts and the Court of Review and established District and Resident Magistrate’s Courts and a High Court. The Kadhis’ Courts Act 1967 established six Kadhis’ Courts for the application of Muslim personal status law.
���������� In 1967, two Presidentially-appointed commissions began looking into marriage and divorce law and inheritance law. The commissions produced drafts of uniform family and inheritance codes to replace the existing customary, statutory, Islamic and Hindu laws then in force. The commission dealing with inheritance laws recommended a uniform code applicable with certain exceptions for customary laws. The bill based on its recommendations led to much heated debate. Criticisms included that the proposed law was too foreign, anti-Muslim, and afforded too many rights to women and illegitimate children. The bill was eventually passed in 1972. The marriage and divorce laws commission produced a draft code that was as uniform as the commission deemed feasible, but since the 1970s efforts to enact a uniform marriage law have been unsuccessful. Marriage law continues to be governed by several regimes: civil, Christian, Hindu and Muslim marriages are governed by separate legislation and communal laws and customary law marriages are also afforded official recognition.
The protectorate-era legislation relating to application of Muslim personal law has been retained. The Acts in force basically afford recognition to marriages solemnised under Islamic law, provide for the registration of Muslim marriages and divorces, delineate the jurisdiction and procedure of Kadhis’ Courts and instruct the application of the principles of personal law applicable to the parties involved, without substantive codification of that law.
Schools of Fiqh: Kenya has a very diverse Muslim population due to Arab and South Asian settlement, local conversion and intermarriage, thus various schools represented. The majority are Shafi’i, and there are also sizeable Hanafi communities as well as Ja’fari, Isma’ili, Zaydi and Ahmadi minority communities.
Constitutional Status of Islam(ic Law): The Constitution was adopted on 12th December 1963, and has been amended several times; most notably in 1964 when Kenya became a Republic and in 1991 when a multiparty system was restored. The Constitution does not provide for any official state religion. Article 66(1) to (5) provides for the establishment of Kadhis’ Courts.
Court System: Local courts applying customary law were abolished in 1967 when reform and unification of the judiciary was completed. There are four levels of courts: Resident and District Magistrates’ Courts (1st, 2nd and 3rd classes), Senior Resident and Chief Magistrates’ Courts; a High Court, and the Court of Appeal.
Islamic law is applied by Kadhis’ Courts where “all the parties profess the Muslim religion” in suits relating to “questions of Muslim law relating to personal status, marriage, divorce or inheritance”. There are eight Kadhis’ Courts in Kenya, presided over by a Chief Kadhi or a Kadhi appointed by the Judicial Services Commission. Appeals lie to the High Court, sitting with the Chief Kadhi or two other Kadhis as assessor(s).
Notable Features: The minimum marriage age is governed by the Marriage Act for statutory marriages (requiring parties to be 16 years of age) and by the relevant personal laws applicable; for Muslims, neither the Mohammedan Marriage, Divorce and Succession Act nor the Mohammedan Marriage Registration Act provide a specified minimum age. The applicable legislation refers only to Muslim law and does not specify any particular school. Although there are provisions for marriage registration, registration does not define validity and marriages conducted under statutory (includes the Marriage Act as well as the African Christian Marriage Act), customary, Muslim and Hindu law are all recognized. Polygamy is governed by classical law. Although it is a criminal offence to marry under statutory law and contract a subsequent marriage under Islamic or customary law, there are no legislative restrictions to polygamy outside of the statutory regime.
Talaq and judicial divorce are governed by classical law, as are post-divorce maintenance provisions. In matters of child custody and guardianship, Kadhis’ Courts generally grant custody to the mother until 7 years for boys and 14 for girls at which point custody reverts to the father. The statutory legislation applicable (the Guardianship of Infants Act) directs that Courts must adjudicate with the interests of the ward as the primary consideration., and an increasing number of women are applying to the regular court system where custody over boys and girls under 16 is generally awarded to the mother.
Under the Law of Succession Act 1981, uniform legislation on intestate succession was made applicable to all Kenyans, with specific exemptions for the application of customary laws; a Muslim testator could provide in his/her will that the estate should devolve according to Islamic law. In 1990, an amendment was passed inserting an exemption for Muslims.
Law/Case Reporting System: Case reporting is through the Kenya Law Reports, Kenya Appeal Reports and Kenya Court of Appeal Decisions.
International Conventions (with Relevant Reservations): Kenya acceded to the ICCPR and ICESCR in 1972, with a reservation to Article 10(2) of the ICESCR.
Kenya acceded to the CEDAW in 1984 without reservations.
Kenya signed and ratified the CRC in 1990 without reservations.
Background and Sources: Anderson, Islamic Law in Africa, London, 1954; Butegwa, “Kenyan Women’s Awareness of their Rights: Report of a Field Study,” in Women and Law in Kenya: Perspectives and Emerging Issues, Mbeo & Ooko-Ombaka, eds., Nairobi, 1989; Hirsch, Pronouncing and Persevering: Gender and the Discourses of Disputing in an African Islamic Court, Chicago, 1998; Kabeberi-Macharia & Nyamu, “Marriage by Affidavit: Developing Alternative Laws on Cohabitation in Kenya,” in The Changing Family: Family Forms and Family Law, Eekelaar and Nhlapo, eds., Oxford, 1998; “Kenya” in Women of the World: Laws and Policies Affecting Their Reproductive Lives- Anglophone Africa, Center for Reproductive Law and Policy & International Federation of Women Lawyers (Kenya Chapter), New York, 1997; Mwangi, “The Application and Development of Sharia in Kenya: 1895-1990,” in Islam in Kenya: Proceedings of the National Seminar on Contemporary Islam in Kenya, Bakari & Yahya, eds., Mombasa, 1995; Redden, “Kenya” in Modern Legal Systems Cyclopedia, vol. 6, Buffalo, NY, 1990; Rubin & Cotran, “Kenya” in Annual Survey of African Law, vols. I-IV, 1967-1970.