Imams seek Court of Appeal's help in inheritance disputes
In Islamic law, a child born out of wedlock can only inherit from the mother and not from the father.
What you need to know:
- Children born out of wedlock to a Muslim father have no right to benefit from his property, according to the religion and the Kadhis Courts.
- However, Kenya's 2010 Constitution recognises such children as beneficiaries of their fathers’ estate.
The Council of Imams and Preachers of Kenya (CIPK) wants Parliament to enact a law for the establishment of a Kadhis Court of Appeal to deal with issues relating to inheritance and other property cases among Muslims through the guidance of the Quran.
Speaking at the opening of the Masjid Al-Huda Centre Mosque in Eldoret, Soy, Uasin Gishu County on Sunday, they said the absence of a Kadhis Court of Appeal has forced Muslims to rely on ordinary courts that make decisions against their faith.
Children born out of wedlock to a Muslim father have no right to benefit from his property, according to the religion and the Kadhis Courts.
However, Kenya's 2010 Constitution recognises such children as beneficiaries of their fathers’ estate.
Recently, the High Court in Mombasa overturned a ruling by the Kadhi’s Court that denied a beneficiary, who was allegedly born out of wedlock, the right to a share of his Muslim father's estate.
While ruling in favour of the child, the Court of Appeal said that it was discriminatory to deny a child inheritance simply because he or she was born out of an unlawful union.
In Islamic law, a child born out of wedlock can only inherit from the mother and not from the father.
Contrary to Islamic law, the Kenyan Constitution states that the rights of a child take precedence over marital status.
In the case three months ago, a three-judge bench of judges Gatembu Kairu, Pauline Nyamweya and George Odunga found that despite the religion's abhorrence of sex before marriage, it was biased to disregard children born of such relationships.
The law has no rational justification to prove that a child born in a marriage has a higher right to benefit from the estate of the deceased father than a child born out of wedlock, they noted.
“To deny illegitimate children the benefit enjoyed by other legitimate children because of the alleged 'sins' committed by their parents cannot, in our view, be justified," the judges ruled.
The Mombasa case concerned the estate of Mombasa tycoon Salim Juma Hakeem, who died without a will in Tanzania on February 23, 2015.
Following his death, his widow, Rubi Mwawasi, and her sister, Judith Malele, filed a succession petition in the High Court.
Meanwhile, Fatuma Athman, in her capacity as Juma's widow, filed a case at the Kadhi’s Court.
After learning that Mwawasi had filed an inheritance case in the High Court, Athman also went to the same court and filed a claim to the estate, saying that she was the deceased's legal wife. According to Ms Athman, she married the deceased on August 4, 2006 and they had four children.
