SK v HM [2018] KEKC 8 (KLR)

**REPUBLIC OF KENYA** **IN THE KADHI'S COURT AT NAIROBI** **CIVIL CASE NO. 339 OF 2013** **SK .............................PLAINTIFF** **-VERSUS-** **HM........................DEFENDENT** **_JUGDEMENT_** The background information to this judgment is that the Plaintiff moved to this court, by way of a plaint dated 26th November 2013 and filed on the same day, where she prays for:- a) A send off b) Full custody of both issues c) Maintenance of the children d) Any relief that the court may deem fit On 4th April 2014 this court rendered judgment in favor of the Plaintiff , by awarding her send off pending assessment of financial capacity of the defendant. The plaintiff filed her affidavit of means on 14th September 2015 while the defendant filed his affidavit of means on 19th August 2015 respectively. The instant suit came up for hearing on the 19th May 2016 after which both sides filed detailed written submissions in which they articulated their respective positions. The argument by the plaintiff is that the dowry of KES 300,000/- was never paid at all and that she wishes to have the same to be paid since it's obligatory by law for the husband to pay it unless the wife by her own will and without pressure forgives the husband in paying it. The plaintiff further submitted that the defendant despite being in a gainfully employed with Kenya Airways as a [Particulars Withheld] earning an estimate salary of not less than KES 250,000.00 per month ,he owns other assets not limited to a matrimonial home in Nyayo Estate Embakasi Court xxx Hse No. [xx], a Toyota Voxy Registration No. [Particulars Withheld] Y and a two acre piece of land in Syokimau , and is therefore capable of paying KES 2,000,000.00 as send off. The amount which she deserves owing to the psychological torture and trauma the plaintiff went through and further, that divorcing such a young lady after six(6) years of marriage is irresponsible , inhuman and inconsiderate. The argument by the defendant is that the amount of dowry agreed by the parties herein during their nikah ceremony was KES 30,000.00 which was fixed and recorded in the certificate of marriage marked as 'Ex 1' and that the said amount was paid to the plaintiff and the payment was confirmed when talaq was being given at Landies Mosque. The defendant further submitted that he earns a monthly salary between KES. 82,203.35 to KES. 116,429.15 which is never constant as it appears in annexure marked 'HM 1'. He further stated that his basic monthly expenses amount to KES. 136,000.00 as appears in annexure marked 'HM 2' , and that it was the defendant testimony that all properties he owns , including his residential home co-owned with National Social Security Fund, were bought and obtained before he got married to the plaintiff. The defendant further submitted that during the hearing no evidence was submitted to support the claim of KES. 2,000,000.00 send off and, that all the plaintiff could state was that she was a virgin, gave a defendant two children and her life is ruined. He futher asked the court to disregard the same I have given due consideration to the submissions by learned counsels. I have also considered the material and various authorities placed before me. The following issue rose for determination; I. Whether the plaintiff is entited to dowry of KES. 300,000.00 II. Whether the plaintiff is entitled to a send off of KES. 2,000,000.00 **Dowry** To answer the question as to whether the plaintiff is entitled to dowry of KES 300,000.00 ,the court attention was drawn to Holy Quran Chapter 4, verse 4 where it is stated that: **“And give to the woman (whom you marry) their Mahr (obligatory bridal – money given by the husband to his wife during marriage) with good heart.................”** It is the opinion of the court based on the above source that dower is enjoined by the law merely as a token of respect for its object (the woman) therefore the mention of it is not absolutely essential to the validity of a marriage and for the same reason, a marriage is also valid although the man is obliged in the contract to give out consideration as an essential condition for the validity of marriage. Unpaid Mahr (dower) is considered as an unsecured debt payable to wife by the husband or from his estate therefore Muslim widows and divorcee have a right to recover the debt during the life time of husband or his estate, if she predeceases her heir are entitled to the dower and such right is enforceable upon the termination of the marriage between the husband and wife. The plaintiff's evidence of nonpayment of dowry was corroborated by certificate of marriage marked as 'EX 1', further there was no serious rebuttal by the respondent against the nonpayment of dowry save for general denial in his testimony. The Court’ attention was drawn to the decision of Eunice Karimi Kibuja V Mwirigi M’ringera Kibunja Court of Appeal case No. 103 of 1996 wherein it is stated that; **‘A Court should not make a finding without evidence before it’.** The eventual objective of any judicial scrutiny is to unravel the truth on the face of clinching evidence the court must separate the grain from chaff by ascertaining if dowry was never paid and how much is the plaintiff entitled to, is it KES 30,000.00 or KES 300,000.00 ? The amount and method of payment is written into a contract, which is signed by the bride, groom and their witnesses. Following this, the _Aqd-Nikah_ (marriage contract) is announced to all who attend the _nikah_. Traditionally, _mahr_ would reflect the social status of the bride’s family. However, these days, the giving of _mahr_ is seen mainly as a symbol. From a face of the marriage certificate serial no. xxxx indicates that sometimes on 30th April 2006 the plaintiff and the defendant were joined in matrimony alliance at [Particulars Withheld] ,South C , in terms of the Mohammedan Marriage, Divorce and Succession Act _Chapter 156_ (repealed) and the agreed dowry is KES 30,000.00 to be paid upon demand. It is a common ground that the certificate of marriage serial no. xxxx and its particulars thereof are not in disputed by both the plaintiff and the defendant and in fact they appended their signatures in the said certificate. Consequently, the plaintiff has nothing to offer legally to compel the finding of this court on the quantum of the agreed dowry on her favor. It is not a duty of the Court to rewrite the contracts for parties but rather to enforce the contract entered by the parties. She thus failed to discharge the onus of proof. Thus the answer to the issue no. 1 is partially affirmed. **Quantum of send off** A close examination of the verse “Make fair provision for them, the affluent according to his means and the straitened according to his means; this is a duty for those who do good” (_Soorat_ _Al-Baqarah_ , 2:236) will reveal that jurists have expressed different opinions regarding the following points: 1\. What should be taken into consideration regarding the words, “the affluent according to his means and the straitened according to his means”? 2\. What is the nature of the consolatory gift? Regarding the first point, scholars have expressed three opinions:(_Badaa’i’ As-Sanaa’i’_ , 2/304) **First Opinion:** The husband's financial position is to be taken into account, for the verse addresses husbands. This is the view of the _Maalikites_ ,(_Jawaahir Al-Ikleel_ , 1/365) the _Hanbalites_(_Al-Mughnee_ , 10/143; and _Ash-Sharh Al-Kabeer_ , 21/274) and one of the views of the _Shaafi’ites_.(_Al-Majmoo’_ , 5/269) **Second Opinion:** The wife?s condition must be taken into account because the post-divorce compensation (consolatory gift) is for sexual intercourse. This is the other view of the _Shaafi’ites_. (_Al-Majmoo’_ , 5/269) **Third Opinion:** The condition of both the husband and the wife is to be taken into account. The husband's financial condition must be considered, as evidenced by the statement, “the affluent according to his means and the straitened according to his means.” The wife's condition must also be considered, as evidenced by the statement, “according to what is fair”. Thus, if a man marries two women belonging to two different social classes and then divorces them, he is required to give each one of them a consolatory gift that suits her position. It seems that it is the husband's condition that has to be taken into account when it comes to giving the consolatory gift, for the verse makes this categorical, and this is the view of the majority of Muslim scholars. Allah knows best. Regarding the second point, scholars have expressed different opinions including the following: 1\. As-Sarakhsee writes, “The consolatory gift consists of three types of garment, for a woman generally offers her prayers in three garments and goes out in three garments, and this is what she should be given. The consolatory gift, however, must not exceed the value of _mahr al-mithl_ _(_ dowry of equivalent).” (_Al-Mabsoot_ , 5/82.) 2\. Abu Bakr Al-Kaashaanee writes, “The required consolatory gift consists of three garments, a dress, a scarf and an outer loose garment. This is the view of Al-Hasan Al-Basree, Sa?eed ibn Al- Musayyib, „Ataa'' and Ash-Sha'bee. „Abdullaah ibn „Abbaas (May Allah be pleased with him) said, "...., if he gives her money instead of clothing, that would certainly suffice.” 3\. _Imaam_ Maalik asserts that there is no limit to the consolatory gift.(_Al-Mudawwanah_ , 2/231.) 4\. Al-Khateeb Ash-Sharbeenee writes, “It is recommended that the consolatory gift is not below thirty _dirhams_ or something of similar value. As Al-Buwaytee maintains, "This is the lowest recommended form of the consolatory gift,...." It is _Sunnah_ that the consolatory gift does not exceed the value of half the value of _mahr al-mithl (_ dowry of equivalent). If it does or is equivalent to it, it is acceptable due to the generality regarding it expressed in the Qur'anic verse. If husband and wife agree on a particular gift, that is fine, but if they do not agree on the value of the consolatory gift, its value is left to the discretion of the judge.”( _Mughnee Al-Muhtaaj_ , 3/242. See also _Rawdhat At-Taalibeen_ , 1295.) 5\. _Imaam_ Ahmad contends on the issue of the value of the send off ,it is left to the discretion of the judge, as it is something that has not been specified or determined by Islamic law. Just like other matters which require the judge's decision, it has to be decided by him, particularly when no agreement as to its value is reached. **The Preponderant View** By examining jurists' statements, it becomes clear that the determination of the value of the consolatory gift varies from one person to another and according to the particular circumstances of time and place. It is a matter which is left to the circumstances dictated by the husband's financial ability and the general circumstances of time and place. If, however, no agreement is reached between husband and wife regarding the value of the consolatory gift, it is to be determined by the judge. It's patently clear that under the principle of Muslim Law, the divorced wife is entitled to a send off and/or consolatory gift. The liability of the husband in any case cannot transgress his financial capacity. It's a common ground that the defendant despite being in a gainful employment with Kenya Airways he has also demonstrated he owns other assets which includes a matrimonial home in Nyayo Estate Embakasi Court xxx Hse No. xx, a Toyota Voxy Registration No. KBR xxxx, a two acre piece of land in Syokimau and an eighth acre piece of land in Kitengela. In _Ali v. Sufaira, (1988) 3 Crimes 147_ wherein a learned single Judge of the Kerala High Court held that- " **It is clear that the Muslim who believes in God must give a reasonable amount by way of gift or maintenance to the divorced lady. That gift or maintenance is not limited to the period of Iddat. It is for her future livelihood because God wishes to see all well."** Grant of Ma'ta to divorcee should been perceived as a measure of social justice Chap. 2 V 241 of the Holy Qur'an is a measure of social justice and is specially enacted to protect women and falls within constitutional sweep of Article 19(2) reinforced by Article 21(3). It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. Taking into account the tenet of **_' Make fair provision for them, the affluent according to his_** **_means and the straitened according to his means;.._** ' and upon considering the financial strength of the defendant the answer to the second issue is affirmed. **Disposition** In the result , I make the following orders 1\. That the plaintiff is entitled to dowry of KES 30,000.00 2\. That the plaintiff is entitled to a send off of KES 2,000,000.00 **Dated and delivered at Nairobi this 16th day of February 2018.** **Hon. A. I . Hussein** **Senior Resident Kadhi** **In the presence of:** **Mr. Timon Rotich - Court Assistant** **Mr. Abdi hlb for Mr. Kithi for the Plaintiff** **Mr. Avedi for the defendant**