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.
Citation
Hashim, A (2009). Coping with Conflicts: Colonial Policy towards Muslim Personal Law in Kenya and Post-independent Court Practice. Muslim Family Law in Colonial and Postcolonial Sub-Saharan Africa. , Amsterdam: University of Amsterdam PublishersPublisher
University of Amsterdam Publishers Department of Philosophy and Religious studies, University of Nairobi
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