Coping with Conflicts: Colonial Policy towards Muslim Personal Law in Kenya and Post-independent Court Practice

Abstract

Formal and structured application of Islamic law along the East African coast dated from the establishment of the Sultanate of Zanzibar in early nineteenth century. Kadhi courts were established in major towns of the Sultanate along the East African coast. Territories of the Sultan of Zanzibar stretched from the Benadir coast in Somalia to northern Mozambique. However, with the establishment of the British Protectorate in Zanzibar and the Kenyan coast in 1890, the role of Islamic law and jurisdiction of Kadhi courts were subsequently diminished gradually. The aim of this chapter is to outline the application of Muslim personal law in Kenya from the beginning of British colonial period. It starts with the historical background that highlights the establishment of Kadhi courts in the colonial period. Based on court cases, I will examine how Muslim personal law was applied in post-independence Kenya. My analysis is based on court cases that were appealed from Kadhi courts to the High court and Court of Appeal. In order to link the colonial setting with the post-independent legal practice, I have selected a few court cases that reflect issues of conflict between the Kadhi courts and appellate courts in Kenya. Analysis of court cases reveals the practical application of Muslim personal law in Kenyan courts, and shows the continuity of the colonial legal legacy inherited by the independent Kenyan courts. Although the focus of the chapter is the application of Muslim personal law in Kenya, it also represents the general trend of British policy in the administration of Islamic law in other British territories.