The historical development of Muslim courts: the Kadhi, Mudir and Liwali courts and the Civil Procedure Code and Criminal Procedure Ordinance, c. 1963

Abstract

The encounter between Muslims and the colonial state in eastern Africa remains an under-researched field of study. This article discusses British interactions with Muslims in colonial Kenya, giving particular attention to the institutionalization of the Muslim courts of the Kadhi, Liwali and Mudir. Control and regulation of all aspects of law became a crucial mechanism in the expansion of British influence, as is to be seen in the struggles over these Muslim courts. The Kadhi, Liwali and Mudir courts were established to implement Muslim laws, but colonial rulers also saw them as instruments of imperial authority and a key element in the bureaucracy of the colonial state. It will be shown that the courts strengthened the state's authority over Muslim communities, allowing colonial officials to influence legal change through initiating social changes, modernising legal structures, and suggesting new legal procedures in the context of Muslim institutions facing the challenges of a modernizing African state.

Keywords:

• Muslim law
• courts
• colonialism
• Islam
• Kenya

Notes

1. I have borrowed this from Moosa, “Colonialism and Islamic Law.”

2. Suggestions for such an approach were found in Hailey, African Survey; Anderson, Islamic Law in Africa, v–viii; and Jeppie et al., Muslim Family Law, 9–13.

3. Jeppie et al., Muslim Family Law, 26, from Harrison, France and Islam.

4. Kamanda, Study of the Legal Status, 97–8.

5. McIlwraith, “Declaration of a Protectorate,” 246.

6. Tupper, “Customary and Other Laws,” 173.

7. Jeppie et al., Muslim Family Law, 25.

8. See Hashim, “Coping with Conflicts”; also Mwakimako, “Conflicts and Tensions.”

9. For histories of the appointments of Shaykh-ul-Islam and Chief Kadhi, see Mwakimako, “Conflicts and Tensions.”

10. Mann and Roberts, Law in Colonial Africa, 3.

11. Mann and Roberts, Law in Colonial Africa, 4.

12. Ranger, “Invention of Tradition Revisited,” 106.

13. This is gleaned from the communication from Chief Kadhi Mohamed bin Umar Bakore advising Kadhi to avoid presiding over criminal cases because such were beyond their jurisdiction. See KNA/AP/1/205.

14. Chief Kadhi Mohamed bin Umar Bakore to all Kadhi on June 25, 1925, in KNA/AP/1/1205.

15. Chief Kadhi Mohamed bin Umar Bakore to all Kadhi on June 25, 1925, in KNA/AP/1/1205.

16. Reported by S.V. Cook, District Commissioner, Lamu to Provincial Commissioner, Coast, ref no. 1518/11 of May 15, 1930, in KNA/AP/1/205.

17. Reported by S.V. Cook, District Commissioner, Lamu to Provincial Commissioner, Coast, ref no. 1518/11 of May 15, 1930, in KNA/AP/1/205.

18. J.C.R. Stephen, Ag. Chief Justice to Provincial Commissioner, Coast on June 14, 1930.

19. District Commissioner, Lamu to Registrar, Supreme Court of Kenya, ref. no. L and O 17/7/3 of June 17, 1932, in KNA/AP/1/1205.

20. District Commissioner, Lamu to Registrar, Supreme Court of Kenya, ref. no. 17/1/1 of March 19, 1932, in KNA/AP/1/1205.

21. Murray M. Jack, Registrar, Supreme Court to District Commissioner, Lamu on July 25, 1932, in KNA/AP/1/1205.

22. Chief Kadhi, Shaykh Al-Amin bin Ali Mazrui to District Registrar, Supreme Court, Msa on February 26, 1941, in KNA/AP/1/1206.

23. Circular from E.J. O'Farrell, Registrar, Supreme Court of Kenya to Muslim Subordinate Courts in Coast Province on September 24, 1941, in KNA/AP/1/1206.

24. Mombasa Law Society memorandum of February 4, 1943 on the procedure and evidence to be applied to Muslim Subordinate Courts.

25. Mombasa Law Society memorandum of February 4, 1943 on the procedure and evidence to be applied to Muslim Subordinate Courts.

26. Justice R.S. Thacker to Registrar, Supreme Court of Kenya, ref. no. C. 268/1943 of March 17, 1943, in KNA/AP/1/1206.

27. Justice R.S. Thacker to Registrar, Supreme Court of Kenya, ref. no. C. 268/1943 of March 17, 1943, in KNA/AP/1/1206.

28. G.G. Atkinson to Registrar, Supreme Court on May 14, 1943, in KNA/AP/1/1206.

29. J.A. Burke to Registrar, Supreme Court of Kenya, on May 25, 1943, in KNA/AP/1/1206.

30. A. Morrison to Registrar, Supreme Court of Kenya, ref. no. M.1/43/444 of May 25, 1943, in KNA/AP/1/1206.

31. Chief Kadhi, Shaykh al-Amin bin Ali Mazrui to Justice Hayden, ref. no. C.K. 13/44 of April 4, 1944, in KNA/AP/1/1206.

32. Chief Kadhi, Shaykh al-Amin bin Ali Mazrui to Justice Hayden, ref. no. C.K. 13/44 of April 4, 1944, in KNA/AP/1/1206.

33. John Kelly, District Registrar, to Secretary, Mombasa Law Society on November 20, 1944, in KNA/AP/1/1206.

34. See Memorandum from Deputy Registrar, Supreme Court to Provincial Commissioner, Coast, ref. no. 47/21/86 of November 29, 1961, in KNA/CA/9/6.

35. See D.W. Hall, Provincial Commissioner, Coast to Permanent Secretary, Office of the Chief Secretary, ref. no. L and O 1/3/12 of December 7, 1961, in KNA/CA/9/6.

36. D.W. Hall to Chief Commissioner, ref. no. L and O 1/3/17 of January 3, 1962, in KNA/CA/6/9.

37. D.W. Hall to Deputy Registrar, Supreme Court of Kenya, ref. no. L and O 1/3/13 of December 7, 1961, in KNA/CA/9/6.

38. The Tullabat Society was founded in 1941 by Sayyid Ali Ahmad Badawy, a former Chief Kadhi, as its President. Other officials included Sharif Abdul Rahman Ahmad Badawy, who taught theology at the Muslim Institute, Abdulrahman Mohamed Khitamy, the Secretary, and Ahmad A. Jezan, the Treasurer. By then, Abdulrahman Mohamed Khitamy was said to have qualified as a Muslim vakil (lawyer) and was trying to use this society to re-organize the Kadhi courts.

39. Memorandum of the Tullabat Society to Government of Kenya, written by A. Mohamed, Secretary, ref. no. AM/1/62 of January 2, 1962, in KNA/CA/6/9.

40. Memorandum of the Tullabat Society to Government of Kenya, written by A. Mohamed, Secretary, ref. no. AM/1/62 of January 2, 1962, in KNA/CA/6/9.

41. Memorandum of the Tullabat Society to Government of Kenya, written by A. Mohamed, Secretary, ref. no. AM/1/62 of January 2, 1962, in KNA/CA/6/9.

42. Memorandum of the Tullabat Society to Government of Kenya, written by A. Mohamed, Secretary, ref. no. AM/1/62 of January 2, 1962, in KNA/CA/6/9.

43. D.W. Hall to Chief Commissioner, ref. no. L and O 1/3/18 of January 8, 1962, in KNA/CA/6/9.

44. D.W. Hall to Permanent Secretary, Office of the Minister of State for Constitutional Affairs and Administration, ref. no. L and O 1/3/26 of July 19, 1962, in KNA/CA/6/9.

45. D.W. Hall to Permanent Secretary, ref. no. L and O 1/3/27 of September 14, 1962, in KNA/CA/6/9.

46. J.A. Gardner, African Courts Officer to Provincial Commissioner, Coast, ref. no. AA/37/1.vol II/ 64 of September 18, 1962, in KNA/CA/6/9.

47. D.W. Hall to Permanent Secretary, Office of the Minister of State for Constitutional Affairs and Administration, ref. no. L and O 1/3/29 of December 19, 1962, in KNA/CA/6/9.

48. J.A. Gardner to J. Pinney, Ag. Provincial Commissioner, Coast, ref. no. AA/37/1/9/81 of March 18, 1963, in KNA/CA/6/9.