In a powerful ruling that touches the lives of many, Kenya’s Supreme Court has declared that children born outside marriage have the same right to inherit from their father as those born within wedlock even under Islamic law.
The ruling came in the case of Fatuma Abud Farah v. Ruth Faith Mwawasi and 2 Others, and it could reshape how inheritance disputes are settled, especially in Muslim families.
At the heart of the case was a painful question: should a child’s right to inheritance be denied simply because their parents were not married?
The court said no.
Delivering the judgment on Monday, the judges found that barring such children from inheriting violates the Constitution. They pointed to Article 27, which guarantees equal protection and treatment for all Kenyans.
“Denying a child inheritance based on birth status is unfair and unjust,” the bench said. “The law must treat all children equally.”
Constitution Comes First
The court acknowledged that Article 24(4) of the Constitution does allow Islamic law to apply in personal matters like marriage, divorce, and inheritance. But it added a firm reminder that this is only permitted when “strictly necessary.”
In this case, the judges said, excluding children born out of wedlock was neither necessary nor justifiable.
“The application of Muslim law must never override the Constitution’s promise of equality,” they wrote.
A Landmark Moment
The ruling has sparked praise from legal experts and children’s rights defenders.
“This is a victory for fairness,” said lawyer and constitutional expert Esther Mwangi. “It ensures that no child is punished for the circumstances of their birth.”
Human rights groups have long argued that denying inheritance to children born out of wedlock deepens social stigma and economic hardship especially for women-led households. This decision, they say, gives hope.
What It Means
The judgment now sets a binding precedent. Families that follow Islamic traditions must still ensure their decisions respect Kenya’s Constitution.
Children, no matter the details of their birth, cannot be shut out of inheritance simply because of religious or cultural interpretations.
“This ruling is not about changing religion,” said Fatima Noor, a Muslim women’s advocate. “It’s about making sure justice applies to everyone even the smallest and most vulnerable.”
