The Supreme Court is set to deliver a landmark judgment on whether children born out of wedlock under Islamic law are entitled to inherit the estate of their deceased father.
Under Islamic law, such children are considered illegitimate and traditionally barred from inheritance. The case raises critical questions about children’s rights and the right to equality and freedom from discrimination.
The legal dispute pits a Muslim woman, Ms Fatuma Athman, against Ms Rose Faith Mwawasi, who converted to Islam during her cohabitation with a man named Salim Juma Hakeem Kitendo, who died in 2015.
During proceedings, the Supreme Court judges stated that their determination would have a significant impact on the distribution of estates belonging to Muslims who die intestate (without a written will).
A full bench of the Supreme Court, led by Chief Justice Martha Koome, is expected to deliver the verdict on Monday at 10.00 a.m.
The judges are set to address two key questions. First, whether excluding children born out of wedlock from inheriting the estate of their Muslim father constitutes unfair and unjustified discrimination second, whether children born from a previous relationship and treated by their mother’s new partner as his own are entitled to benefit from his estate, even if paternity is disputed.
The court will also consider whether the right to equality and freedom from discrimination can be limited in the context of inheritance among Muslims.
The case reached the Supreme Court after Ms Athman filed a petition challenging a ruling by the Court of Appeal, which held that denying children born out of wedlock the right to inherit solely because of their birth status was discriminatory.
Court of Appeal Justices Gatembu Kairu, Pauline Nyamweya and George Odunga found no rational justification for creating a distinction between children born out of wedlock and those born within a marriage regarding inheritance under Islamic law.
The estate at the centre of the dispute belongs to Salim Juma Hakeem Kitendo, who died in February 2015 in Tanzania. His estate includes an apartment, 10 houses, two parcels of land, a business in Mtwapa, funds in eight bank accounts, two motor vehicles and two fuel stations.
In May 2015, Ms Mwawasi and her sister Judith Malele petitioned the High Court for a grant of letters of administration over the estate listing Ms Mwawasi as Kitendo’s widow and naming her four children as beneficiaries.
She claimed she had cohabited with Kitendo since 2000 but that they could not marry initially because she was Christian and he was Muslim. She later converted to Islam in July 2011.
Separately, Ms Athman also filed a succession case before the Kadhis Court claiming she married Kitendo under Islamic law in 2006. She listed herself and her four children as the sole beneficiaries and objected to the grant being issued to Ms Mwawasi and her sister.
Ms Athman argued that Ms Mwawasi’s children were born before the alleged marriage was formalized and under Islamic law, could not inherit their father’s estate, stating they could only inherit from their mother.
However, the Court of Appeal disagreed. The judges ruled that denying children born out of wedlock the same inheritance rights as those born in marriage amounted to “unfair and unjustified discrimination.”
“To deny children born out of wedlock the benefit which accrued to other children born in wedlock on the basis of the alleged “sins” committed by their parents, could not be justified since it would mean that the court would be adopting hurtful discrimination and stereotypical response to a clear case of discrimination,” the judges said.
They added that children's rights should be viewed separately from marital issues and that harmful cultural practices that deny children parental care and protection based on their parents’ marital status should be rejected.
However, Ms Athman argued that the Court of Appeal failed to consider Article 24(4) of the Constitution.
The said section says: "The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance".
She also cited Section 2(3) of the Law of Succession Act which says that the "Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim..."
