Expert insights on navigating Kadhi courts and statutory law for property rights
Muslim women grinding maize using ancient grinding stones in this November 25, 2022 photo. Kenya's dual legal system of Islamic and statutory law shapes these women's marriage and inheritance rights.
What you need to know:
- Muslim women in Kenya face unique challenges in property rights due to the intersection of Islamic and statutory law.
- While Islamic law, administered through Kadhi courts, grants widows specific inheritance portions, women retain the right to seek additional justice through statutory courts.
- Faith Alubbe of Kenya Land Alliance emphasises that Muslim women should feel empowered to explore both religious and statutory legal avenues to secure their property rights.
“For us, Muslim women, we are often regarded as the property of men because our husbands pay [reverse] dowries, which leads to the assumption that they own us. Consequently, we do not expect to inherit anything from them when they pass away,” shares Dhahabu Golicha, a Muslim woman from Isiolo County.
In Kenya, the intersection of traditional Islamic law and statutory legal frameworks creates a unique landscape regarding marriages and succession for Muslim women.
Section 3 of the Marriage Act (2014) emphasises equal rights for spouses during and after marriage and adds that Islamic marriages are governed by rights granted under Islamic law. This distinction can create complexities concerning succession, particularly after a spouse’s death.
While the Law of Succession Act (Cap 160) governs the distribution of estates for many Kenyans, it does not apply to the estates of deceased Muslims.
As a result, many Muslim women seek recourse through Islamic law, primarily overseen by a Kadhi (judge). The preference for religious succession processes stems from cultural and religious inclinations, despite the prominence of statutory law under the Constitution.
Last May, when Chief Kadhi Abdulhalim Athman ruled on the validity of verbal divorce, commonly known as talaq among Muslim couples, he clarified the inheritance rights a wife is entitled to.
In the story written by Brian Ocharo, a woman approached the Kadhi’s court in Mombasa seeking intervention after being excluded from the list of beneficiaries of her late husband’s estate.
The woman sought to understand what constitutes a valid talaq, following allegations that she was not legally divorced from her previous husband. She maintained that she was married to her husband at the time of his death, having been divorced from her previous marriage.
Talaq refers to the dissolution of a marriage through specific words. According to Islamic law, the husband has the primary authority to grant a divorce.
Chief Kadhi Athman ruled that in Islam, a man does not need the permission of any court or organisation to exercise this inherent right.
He stated that the divorce becomes effective upon the husband’s pronouncement, but symbolic words must be intended to signify divorce for it to take effect.
“It should be written, dated, and witnessed to authenticate it,” he said.
A Muslim husband has two chances to reconcile with his wife after a divorce, but after the third pronouncement, the marriage becomes irrevocable.
The widow also sought clarification on her rights under Islamic succession law and her entitlement to inheritance as a widow.
The Chief Kadhi noted that a widow is entitled to a quarter (25 per cent) of the estate if the deceased had no children and she was the only wife at the time of his death. However, if the deceased is survived by a child, his widow is entitled to one-eighth (12.5 per cent) of the estate if she is the only widow.
It is important to note that obtaining a ruling from the Kadhi’s Court does not prevent a woman from seeking further legal recourse in statutory courts.
Faith Alubbe, the chief executive officer of the Kenya Land Alliance, explains that Kenyan law affirms every citizen’s right to seek justice in a court of law, irrespective of their religious affiliation or legal context.
“When Muslim women face the choice between religious and statutory courts, they might consider several questions to make an informed decision: ‘Am I satisfied with the remedy provided? Is justice being served? What are my future options?’” she observes.
“It’s crucial for women to feel that they have received a fair and just resolution of their succession matters. If a ruling from the Kadhi’s Court meets their needs, they are likely to feel secure in that outcome,” she adds.
If it does not, women must reflect on whether the legal remedy they pursued, whether through a religious court or statutory court, adequately addresses their rights and entitlements, she advises.
Alubbe emphasises that no ruling from the Khadi’s court eliminates the opportunity to engage with statutory processes. Women retain the right to appeal or explore statutory solutions, ensuring they are not confined to a single legal avenue.
