In a landmark ruling, the Supreme Court of Kenya has affirmed that children born out of wedlock to Muslim fathers have the right to inherit from their father’s estate.
The unanimous decision, announced on Monday, June 30, sets a major precedent in how Islamic law is interpreted in relation to Kenya’s Constitution.
This case stemmed from a prolonged legal battle involving Fatuma Athman Abud Faraj, the widow of the late Salim Juma Hakeem Kitendo.
Faraj had sought to exclude the children born out of wedlock to Kitendo with Ruth Mwawasi and Marlin Pownall from inheriting his estate, arguing that they were not legitimate under Islamic law.
Why did Supreme Court rule against Faraj?
However, the Supreme Court dismissed her appeal and upheld the earlier decisions made by the High Court and Court of Appeal, which ruled that excluding the children born outside of marriage was discriminatory and violated Kenya’s constitutional provisions on equality and non-discrimination.
In their ruling, the judges emphasised that the Constitution, particularly under Article 27, guarantees equality before the law for all, irrespective of their parents’ marital status.
Justices Koome, DCJ Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko reasoned that denying inheritance rights to children born outside of marriage was unjustifiable.
Article 53(2) of the Constitution protects the best interests of the child, and the court argued that such exclusions could not be justified when the child’s right to inheritance is in question.
Justice Martha Koome, delivering the judgment, reiterated that the Court of Appeal’s decision to recognise the children born out of wedlock as legal heirs was consistent with constitutional principles.
The apex court also found that the earlier judgments aligned Islamic inheritance principles with constitutional values, particularly the rights of children.
It noted that no basis existed to treat children born within wedlock as having greater claims to inheritance over those born outside of it.
In addition, the ruling stressed the importance of interpreting Islamic law in a way that does not conflict with fundamental constitutional rights.
