Failure by parents to formalise their marriage cannot be used to deny children the right to inherit wealth they are entitled to by law, the High Court in Mombasa has ruled.
Family Division Judge John Onyiego has ruled that children cannot be locked out of inheritance because their parents merely lived together but failed to formalise their union.
The judge made the ruling in a case where a widow and her two children had been denied inheritance for being non-Muslims, and that the woman was not legally married to her deceased husband under Islamic law.
“Since paternity is not denied or challenged, the failure of the children’s parents in formalising their marriage cannot be visited on them (children) to deny them what they are by law entitled (to),” said the judge.
The judge ordered that the property that their deceased father was entitled to be distributed to them in equal share.
“The administrators of the estate have no choice but to deliver and execute their mandate by transferring 9.21 per cent of the share entitled to the deceased to his two children,” said the judge.
The ruling comes as a relief for Ms Josephine Wanjiru and her two children after more than eight years of litigation.
The three had been denied Mr Swauriqy Chuba’s share of the Sh176 million property left behind by his father Bakari Hamisi, also deceased.
The woman’s attempts to fight for her children’s right to inherit their father’s property failed twice – at the Kadhi’s Court and the Family Division Court in Mombasa in 2013 and 2015.
Chuba died in 2012, and had lived with Ms Wanjiru as husband and wife since 1992.
At the time of his death, Chuba had petitioned the Kadhi’s Court in Mombasa, seeking determination of the individual beneficiaries’ shares of their deceased father’s property in accordance with the Islamic law on inheritance.
Chuba’s brother, Mr Ali Chuba, then took over and prosecuted the case before the kadhi. The court, in a judgment delivered on August 29, 2013, held that the widow and her children were not entitled to inherit the estate according to Islamic law.
The kadhi, however, recognised that the late Chuba was entitled to 9.21 per cent of his father’s estate.
Ms Wanjiru, who had not participated in the proceedings before the Kadhi’s Court, then went to the court, seeking to overturn the judgment that disinherited her children.
She argued that the kadhi’s decision was an abuse of the court process and that she was condemned unheard.
Ms Wanjiru also lamented that not being Muslim, she had been wrongly subjected to Islamic law. But her request was denied, with the kadhi ruling that under Islamic law, the woman and her children could not inherit the deceased’s property by virtue of them being non-Muslims.
She moved to the High Court, where she asked Justice Mugure Thande to determine her late husband’s 9.21 shares in the larger estate and an additional injunction restraining the administrators from distributing or alienating the said share.
“I am not a Muslim; hence I could not be subjected to its application or jurisdiction. In any event, the Islamic law is discriminatory, hence unconstitutional,” she said.
Her in-laws opposed the application and urged the judge to uphold the Kadhi Court’s position. In her ruling dated December 15, 2015, Justice Thande dismissed her request and upheld the kadhi’s finding that she and her children could not inherit Chuba’s estate.
Aggrieved by the ruling, the widow moved to the Court of Appeal, which agreed with her, noting that being non-Muslims, she and her children were wrongly subjected to the Kadhi’s Court’s jurisdiction.
The appellate judges then directed the High Court to hear the matter under the Law of Succession Act and make a determination on any dispute that was pending or that might arise.
The court held that the two children are innocent and were born out of a long relationship between the widow and the deceased.
Justice Onyiego picked up the case in 2020 and took oral evidence from all the parties. In her evidence, Ms Wanjiru said her in-laws knew her very well as the wife of Chuba, and she was shocked when they turned against her to the extent of threatening to evict her from one of the estate’s house, disconnected electricity and refused to pay school fees for her children.
She then urged the court to distribute her late husband’s share of the property to her, to hold in trust for their children. She did not ask for any share for herself but urged the court to consider the children.
“Children cannot be victimised and suffer on account of religion,” she said.
Mr Ali Chuba, as the administrator of the estate, stood his ground, reiterating the judgment of the Kadhi’s Court, while insisting that his late brother was not legally married to Ms Wanjiru under Islamic law, and therefore, the children were not entitled to his property.
Justice Onyiego noted that the circumstances of the children’s birth did not disentitle them their right to inherit in a situation where their late father took and accepted them as his children over a long period of time.
The judge noted that it was clear from the evidence in the case that the deceased had assumed full parental responsibility over the two as his children.
“The fact that the two children were born during the subsistence of their cohabitation and birth certificates issued with the deceased as their father, the presumption is that they were sired by him,” said the judge.
The judge directed that the 9.21 per cent share of the property valued should go to Chuba’s two children.
