A marital dispute played out before a Kadhi’s court in Kericho three weeks ago where a woman complained that her husband was so addicted to Muguka that he neglected his conjugal obligations.
Kadhi Idris Nyaboga was told the man preferred to chew muguka on the night of their wedding in December 2023 “instead of concentrating (on) his newly wedded wife”.
This happened in a case where the man went to the Kadhi court seeking a declaration that the wife was disobedient for having moved out of their residence in Kisii and gone back to her parents in Mombasa. Her brother had picked her up and taken her back to her parents.
In the official law reporting, the names of the couple have been redacted, with the husband (petitioner) being identified as NMO and the wife (respondent) as AHO.
When she gave her side of the story after being sued, the wife brought out the issue of muguka, and the Kadhi records that the stimulant was at some point described as an evil product.
“The respondent stated that it is unfortunate that the petitioner is a muguka addict,” wrote the Kadhi in his verdict issued on December 18.
The wife was pregnant in July 2024 when she went back to her parents, and the judgement records a submission saying that the pregnancy was “by chance”.
The Kadhi, however, did not find a reason to terminate the marriage.
Why? First, he found that the two had not exhausted all the dispute resolution mechanisms before the matter reached his bench.
“The parties herein, being Muslims, should have first at least utilised the alternative dispute resolution techniques stipulated by Islamic law in dealing and handling disputes before utilising the court process and among that is the concept of sulhu (conciliation). The Qur’aan states: ‘And if a woman fears from her husband injustice or desertion, then there is no wrong in both of them to make conciliation, for conciliation is better,’” ruled the Kadhi.
“The (husband) wants the (wife) to return to him but has not shown any effort and alternative means he has utilised to convince her to return. He has not tried to engage the respondent herself or local elders and religious leaders to assist in settling down the disputes,” the Kadhi added.
In August 2024, the court ordered mediation between the two. However, this did not happen as the man refused to participate in the process.
“The marriage between the petitioner and the respondent was arranged during a time when the respondent was a labourer in Qatar,” the Kadhi wrote, noting that the wife accepted the arrangement because she belonged to “a decent and religious family”.
They first stayed in Lamu before they moved to Kisii. The court heard that the wife was uncomfortable with the fact that the couple lived with the man’s parents and that she had little say in the running of the affairs of the homestead.
The wife also complained that the man did little to take care of her as she had to look for money to go to the hospital and to shoulder household expenses. On some days, she said, he would come back home past 2 am “with hostilities, arrogance and defiance.”
The Kadhi declined the invitation to declare the wife disobedient because she was living with the man’s parents and not a matrimonial home per se.
“Muslim jurists have opined that the husband shall provide a separate accommodation for the wife,” said the Kadhi.
“They state that accommodating the two parents and the wife together (and other relatives) in one house is not allowed. So, the wife can decline to be accommodated with anyone…”
On the issue of muguka, the Kadhi ruled that the wife had not proven her claims, as the man denied the claims of consumption and addiction. He also denied the wife’s allegation that he had been sleeping with a commercial sex worker.
“It is upon the respondent to prove her claims or else the petitioner confesses, which he didn’t. Thus, the onus probandi is upon the claimant, and taking of an oath is upon the one denying,” ruled the Kadhi.
Muguka became an item of controversy last year when six coastal counties banned it, saying it caused mental health challenges and also affected the reproductive health of its consumers.
Muguka is a type of miraa (khat) consumed by chewing leaves and extracting the juice from them. It is cheaper than other miraa variants.
However, the muguka ban in Mombasa, Kwale, Kilifi, Tana River, Lamu, and Taita Taveta was stayed by a court order.
While dismissing the case, the Kadhi said the two should try to iron out their issues.
“It would have been wise for the petitioner and the respondent to first try to resolve and sort out their issues before engaging other alternatives like court processes. In fact, the petitioner filed his petition only three days after the respondent had travelled (to her parents’ home) while the respondent’s documents filed in response to the petitioner are dated July 5, 2024, as if immediately after being served, she started preparing to deal with the petition before court,” stated the Kadhi.
Kadhis’ courts handle matters relating to Muslim law where both parties are Muslims and agree that the court has jurisdiction over the issue in question. According to the Judiciary website, there are 14 stand-alone Kadhis’ courts in Kenya. In some areas, Kadhis’ courts are located at magistrates’ courts.
