Nairobi – The Supreme Court of Kenya has ruled that children born out of wedlock to Muslim fathers are entitled to inherit from their father’s estate, affirming constitutional protections against discrimination.
The unanimous decision, delivered by email on Monday, upheld a 2023 Court of Appeal ruling that found it unlawful to deny inheritance based solely on the marital status of a child’s parents. The appeal was filed by Fatuma Athman Abud Faraj, who challenged the inclusion of children born outside marriage in the estate of the late Salim Juma Hakeem. Hakeem, a Muslim, died without a will in 2015.
The seven-judge bench led by Chief Justice Martha Koome declared that excluding children based on whether their parents were married at the time of birth violates Articles 27 and 53 of the Constitution, which guarantee equality and the rights of children.
“Denying children born out of wedlock by the same parents the same benefits accorded to children born within wedlock, on the basis of the alleged ‘sins’ of their parents, is unreasonable and unjustifiable,” the bench stated.
Justices Koome, Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola, and William Ouko found that all acknowledged children of the deceased regardless of birth circumstances must be treated equally in inheritance matters.
At the center of the dispute was whether Article 24(4) of the Constitution, which allows Muslim personal law in certain cases, can override the constitutional protection against discrimination. The judges concluded it could not.
“Article 24(4) must be read as allowing only narrowly tailored and strictly necessary departures from the equality provisions in the Bill of Rights,” the ruling stated. “It does not authorize broad, indiscriminate exclusions of Muslims from constitutional equality protections.”
The court also issued further instructions on the administration of Hakeem’s estate. It ordered that letters of administration be jointly granted to Faraj and Rose Faith Mwawasi, both recognized as widows of the deceased. The High Court in Mombasa will now determine how the estate will be distributed among the eligible beneficiaries.
However, the court declined to recognize one child, identified as SJ, after paternity was disproved. The other three children from Mwawasi and one child from a third respondent were confirmed as heirs, having been acknowledged by the deceased during his lifetime.
The Supreme Court directed that each party bear their own legal costs, citing the significant public interest raised by the case.
This ruling sets a binding legal precedent that balances constitutional rights with religious practice, establishing that all children, regardless of how they were born, have equal standing in matters of inheritance under Kenyan law.
