Application of Muslim Personal Law in the Kenyan Courts: Problems and Prospects

Abstract

Abstract This paper examines the application of Muslim personal law in the Kenyan courts. It addresses jurisprudential issues which engage conventional government judges, magistrates and kadhis (Islamic judges). The interaction between the conventional and religious courts has paved the way for a conflict of laws on matters related to Muslim personal law and has led to an interesting scenario of constructive conversation and criticism that in turn has set the stage for an emerging comparative jurisprudence within a pluralistic society. Factors which contribute toward conflicts include wholesale adoption of Common Law and Islamic law notions and exemption clauses in statutes. To overcome the challenges facing the kadhis’ courts and the application of Muslim personal law in Kenya, the paper proposes the adoption of a progressive comparative jurisprudential approach in responding to emerging legal issues facing Muslim litigants in the Kenyan courts.