INHERITANCE RIGHTS OF CHILDREN BORN OUT OF WEDLOCK IN KENYA

In Kenya, the law has come a long way in protecting the rights of children when it comes to issues of inheritance. One of the biggest questions in succession law has been whether children born outside of marriage have the same rights as those born within a marriage, particularly in religions that follow personal laws like Islam.

In this post, I’ll be discussing the inheritance rights of children born out of wedlock, and how the law handles such situations. I’ll be basing this discussion on the recent Supreme Court decision in Fatuma Athman Abud Faraj v. Ruth Faith Mwawasi & Others (Petition No. E035 of 2023), which was delivered on 30th June 2025. 

FACTS OF THE CASE 

The core of this dispute revolved around inheritance rights within a Muslim family. 

 Salim Juma Hakeem Kitendo, the deceased, was a Muslim man. He had an Islamic marriage with Fatuma Athman Abud Faraj, the appellant. They had four children together, and there was no dispute regarding these children's right to inherit from the deceased's estate. 

The deceased later began cohabiting with Ruth Faith Mwawasi, the 1st respondent. During this cohabitation, they had three children. Crucially, their Islamic marriage took place after these three children were born. 

The deceased also cohabited with Marlin Pownall, the 3rd respondent, and subsequently celebrated an Islamic marriage with her. They had a son less than six months after their marriage.  Following the deceased's passing, a dispute arose concerning whether the children of the 1st and 3rd respondents were entitled to inherit under Muslim law. 

Fatuma (the first wife) argued that Ruth's children were born before her Islamic marriage to the deceased, so they should be considered illegitimate under Islamic law and shouldn't inherit. She also argued the same for Marlin's son, not only because he was born a few months after the marriage, but also because she claimed Marlin's marriage itself wasn't valid. 

LEGAL ISSUES 

•  Interpretation of Constitutional Articles (Article 24(4) vs. Article 27): Did the Court of Appeal incorrectly limit the application of Article 24(4) of the Constitution, which allows for the application of Muslim law in certain matters, and in doing so, misinterpret the relationship between Article 24(4) and Article 27, which guarantees the right to equality and non-discrimination. This issue delves into how constitutional provisions interact, especially when religious law potentially conflicts with fundamental rights.
• Application of Muslim Law (Section 2(3) of the Law of Succession Act): Did the Court of Appeal fail to properly enforce the mandatory application of Muslim law, as stipulated in Section 2(3) of the Law of Succession Act, in an inheritance case involving a Muslim deceased?This question focused on whether the lower court adhered to statutory requirements regarding the application of religious personal law.
• Appropriate Orders: What final orders or directions should the Supreme Court issue given its findings on the preceding issues?

PROCEDURAL HISTORY AT THE COURTS 

 1. AT THE HIGH COURT 

This was the first court to hear the dispute. They held that even though Muslim law should generally apply to a deceased Muslim's estate, it shouldn't apply if it's "repugnant to justice and morality". They believed that if a Muslim man had a child, even if it was outside of marriage, that child should still be treated as a dependent or beneficiary of his estate. Why? Because a child shouldn't be punished or disadvantaged because of their parents' choices 

 2. AT THE COURT OF APPEAL 

This court reviewed the High Court's decision. They agreed with the High Court, saying that denying children born out of wedlock the right to inherit, while allowing children born within marriage to benefit, would be unfair discrimination. They found this went against Article 27 (the right to equality) and Article 53 (children's rights) of the Constitution. So, they decided that the children of Ruth and Marlin were indeed entitled to inherit from the deceased's estate. 

 3. AT THE SUPREME COURT 

Upon thorough consideration, the Supreme Court delivered its final judgment, dismissing the appellant’s appeal. This effectively upheld the decisions of the High Court and the Court of Appeal.  

SUPREME COURT'S HOLDING 

• On the clash between Muslim law and equality: The Court explained that Article 24(4) of the Constitution, which allows Muslim law to apply, is not a "blanket exemption" that lets Islamic law completely override the right to equality. They held that any time Islamic law is applied in a way that might limit fundamental rights, it has to be "strictly necessary, reasonable and justifiable". They found that denying children born out of wedlock the same benefits as other children, just because of their parents' "sins," is unreasonable and unjustifiable. They also emphasized that a child's best interests are always the most important thing in any matter concerning them, according to Article 53(2) of the Constitution.  
• On applying Muslim law correctly: The Court said that the Court of Appeal was right to interpret the relevant rule of Islamic law in a manner that "harmonized it with the values and rights enshrined in the Bill of Rights". This approach was consistent with the Constitution's requirements for courts to develop laws to give effect to rights and adopt interpretations that most favor the enforcement of a right or fundamental freedom. 
• On orders issued: The Supreme Court directed that the matter be remitted back to the High Court at Mombasa. The purpose was for a different judge to determine the "respective entitlements of the beneficiaries" on a priority basis. This means the Supreme Court settled the legal principle of who can inherit, but left the calculation of how much each beneficiary gets to the High Court. 

LEGAL PRINCIPLES ESTABLISHED 

•  Balancing Religious Law and Constitutional Rights: The Court made it clear that while religious laws, like Muslim law, are important and allowed by the Constitution (Article 24(4)), they cannot simply ignore or override fundamental rights like equality (Article 27). Any exceptions for religious law must be very specific, "narrowly tailored, reasonable, justifiable, and necessary".
• Children's Rights and Equality are Paramount: The principle that a "child’s best interests are of paramount importance" (Article 53(2)) was strongly affirmed. It was established that children "should not be prejudiced" or discriminated against "because of his/her parents’ choices" or "sins," especially when it comes to inheritance. Denying them benefits based on their parents' actions is considered "unreasonable and unjustifiable" 
•  Harmonious Interpretation of Laws: Courts have a duty to interpret religious laws in a way that "harmonized it with the values and rights enshrined in the Bill of Rights". This means that laws should be developed and interpreted in a way that "most favors the enforcement of a right or fundamental freedom. 

In conclusion, that’s how the Supreme Court of Kenya addressed the issue of inheritance by children born out of wedlock, even within the context of Islamic law. The Court’s decision reinforced the constitutional principles of equality, non-discrimination, and the best interests of the child, showing that no personal or religious law can override the rights protected by the Constitution. 

 

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

REFERENCES 

 Supreme Court of Kenya. (2025, June 30). Media summary: Fatuma Athman Abud Faraj v. Ruth Faith Mwawasi & Others (Petition No. E035 of 2023). Supreme Court of Kenya.