Children born out of wedlock under Islamic law are entitled to inherit their father’s estate, the Supreme Court has said.
In a unanimous decision, the full seven-judge bench on Monday held that treating children born within wedlock differently from those born outside of it during inheritance is both discriminatory and unlawful.
The court stated that although religion may condemn infidelity and sex outside of marriage, children born from such unions should not be denied their legal rights solely because of their parents’ actions.
“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 judges said.
“Any attempt to exclude children born out of wedlock from benefiting from their father’s estate fails the proportionality test envisaged by the phrase ‘qualified to the extent strictly necessary’, as stipulated under Article 24(4) of the Constitution,” they added.
The petition was filed by Ms Fatuma Athman concerning the succession of her late husband Salim Juma Hakeem Kitendo’s estate. The couple had four children together.
Ms Athman had asked the court to bar another woman, Ms Rose Mwawasi, who had cohabited with Mr Kitendo and had four children with him before converting to Islam in 2011, from inheriting the estate.
Upon conversion, Ms Mwawasi and Kitendo formalised their marriage. The children were born before this formal union.
Equal right to inherit the estate
Ms Athman claimed she was Mr Kitendo’s only legal wife and that being a Muslim, his estate should be distributed strictly under Islamic law, which, she argued, excludes children born out of wedlock from inheritance.
She argued that the constitutional right to equality and non-discrimination under Article 27 is not absolute, citing Article 24(4), which allows for the application of Muslim law in personal matters, including inheritance for those who profess the Islamic faith.
In response, Ms Mwawasi argued that Islamic law is not static and continues to evolve with changing social, political and economic realities.
Ms Athman escalated the matter to the Supreme Court after the Court of Appeal, through justices Gatembu Kairu, Pauline Nyamweya and George Odunga ruled that Kitendo’s other children had an equal right to inherit the estate.
Upholding the Court of Appeal’s finding, the Supreme Court noted that all laws, religious or customary, must be interpreted through the lens of the Constitution’s Bill of Rights.
“In cases involving the welfare of children, the paramount consideration by the court must be the protection of the welfare and best interests of the child, taking into account the specific circumstances of each case,” the bench said.
“We agree with the Court of Appeal that no reasonable justification has been advanced nor can we discern any for drawing a distinction between children regarding their entitlement to their father’s estate,” the court said.
The judges clarified that Article 24(4) is not a blanket justification for overriding the right to equality and non-discrimination. Instead, it must be applied within a framework of reasonableness, justification, necessity and proportionality. They also noted that children’s rights must be assessed independently of their parents’ marital status.
The Supreme Court ordered that letters of administration for the estate be issued jointly to the two women. It referred the case back to the High Court in Mombasa for the determination of the specific entitlements of the beneficiaries.
