Supreme Court: Children born out of wedlock to Muslim fathers have right to inherit

The Supreme Court has ruled that children born out of wedlock to Muslim fathers are entitled to inherit from their father's estate, marking a significant development in the interpretation of Islamic personal law in Kenya.

This is after the apex court on Monday dismissed an appeal by Fatuma Athman Abud Faraj, who had sought to exclude the children of her late husband, Salim Juma Hakeem Kitendo, from his estate on grounds that they were born outside a recognized Islamic marriage.

Faraj, who had four children with the deceased within a formal Islamic union, argued that children sired by Kitendo with Ruth Mwawasi and Marlin Pownall were illegitimate under Islamic law and should not benefit from the inheritance.

However, the Supreme Court upheld the decisions of the High Court and the Court of Appeal, which had found that excluding children born out of wedlock amounted to unfair discrimination, contrary to the Constitution.

In their judgment, the Supreme Court emphasized the need to balance the application of Muslim personal law with constitutional protections.

The court cited Article 24(4), which permits the limitation of certain rights under personal laws such as Islamic law, but stressed that such limitations must be reasonable, justifiable, and narrowly defined.

“Denying children inheritance simply because they were born out of wedlock is unjustifiable and unreasonable, especially when viewed against the best interests of the child, as enshrined in Article 53(2) of the Constitution,” the court stated.

The judges further commended the Court of Appeal for harmonizing Islamic inheritance principles with constitutional values, particularly those under Article 20, which requires all laws to be interpreted in a manner that advances the enforcement of rights and freedoms.

The matter will now return to the High Court in Mombasa for a fresh determination on the distribution of the estate in accordance with the Supreme Court's guidance.