Court Grants Children Born Out of Wedlock Right to Inherit Father’s Wealth

NAIROBI, Kenya, Jun 30 — The Supreme Court has affirmed the entitlement to ineritance for children born out of wedlock to Muslim fathers in a decision that places the constitutional right to equality above cultural or religious practices.

In a unanimous ruling delivered via email on Monday, the apex court dismissed an appeal by Fatuma Athman Abud Faraj, who had challenged the inheritance rights of children born outside marriage in the estate of the late Salim Juma Hakeem, a Muslim who died intestate in 2015.

The court affirmed the 2023 judgment of the Court of Appeal, which held that denying such children inheritance based on the marital status of their parents amounted to unfair discrimination contrary to Articles 27 and 53 of the Constitution.

“The superior court below reasoned that denying children born out of wedlock the right to inherit, while allowing those born within a marriage to benefit, would constitute unjustifiable and unfair discrimination,” a full bench of the court led by Chief Justice Martha Koome noted.

Justices Koome, DCJ Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko asserted that the deceased’s children—born both within and outside marriage—must be treated equally when it comes to succession matters.

“In our view, 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 declared.

Constitutional guarantees

At the heart of the case was whether Article 24(4) of the Constitution, which allows for the application of Muslim personal law in certain matters, could override the constitutional guarantees of equality and non-discrimination.

The court ruled that while Muslim law is recognized, it must be interpreted in harmony with the Bill of Rights and subjected to a proportionality test.

“Article 24(4) must be read as allowing only narrowly tailored and strictly necessary departures from the equality and freedom from discrimination provisions of the Bill of Rights,” the bench reasoned.

“It [Article 24(4)] does not authorize broad indiscriminate or automatic exclusions of Muslims from constitutional equality protections, but rather permits limited exceptions and under stringent conditions in any event,” the judges explained.

Joint administrators

The court further directed that the letters of administration over the estate of the deceased be issued jointly to Faraj and the 1st respondent, Rose Faith Mwawasi, both recognized as widows of the deceased.

Justices of the Supreme Court further directed the transmittal of the matter to the High Court in Mombasa to determine the individual entitlements of the beneficiaries.

The court agreed with the Court of appeal that the matter of entilements must be placed before a different judge.

The court however declined to recognize one child (SJ) of the 1st respondent, whose paternity was disproved, but upheld the rights of the other three children and one from the 3rd respondent to inherit, having been acknowledged by the deceased during his lifetime.

The judges ruled that each party shall bear their own legal costs due to the public interest nature of the case.

“At first instance, the trial court found that SJ, the eldest child of the 1st respondent, was born before the 1st respondent and the deceased began cohabiting,” the bench stated.

The ruling sets a constitutional precedent on how religious practices intersect with fundamental rights, with the Supreme Court affirming that the best interests of children remain paramount in all legal proceedings.