Supreme Court Affirms Inheritance Rights of Children Born Out of Wedlock in Muslim Succession Cases
On 30th June 2025, the Supreme Court of Kenya issued a groundbreaking ruling in SC Petition No. E035 of 2023 – Fatuma Athman Abud Faraj vs. Ruth Faith Mwawasi & 2 Others[2024] KESC 61 (KLR), marking a historic turning point in the legal treatment of children born out of wedlock within Muslim intestate succession. The Court affirmed that such children, where paternity is acknowledged during the deceased’s lifetime, have an equal right to inherit. This decision aligned personal law with constitutional guarantees of equality, dignity, and child protection.
The Supreme Court has boldly asserted that dignity, equality, and the best interests of the child are not negotiable, even in the face of deeply rooted religious norms!
Background of the Case:
The dispute concerned the estate of Salim Juma Hakeem Kitendo, a Muslim man who died intestate in 2015. The succession matter was initiated by three women who each claimed to be widows of the deceased and sought recognition of their children as beneficiaries. The Appellant, Fatuma Faraj, objected to the inclusion of children born out of wedlock, relying on Islamic law to argue that such children lacked inheritance rights.
The case journeyed through the Kadhi’s Court, High Court, and Court of Appeal, before being determined by the Supreme Court, which issued a progressive and holistic interpretation of Kenya’s plural legal system.
Key Constitutional and Legal Issues
- Whether Article 24(4) allows absolute application of Muslim law in succession matters;
- Whether children born out of wedlock can be disinherited under Islamic inheritance law;
- How courts should reconcile Muslim personal law with Articles 27 (Equality) and 53 (Best interests of the child) under the Constitution;
- The role of Section 2(3) of the Law of Succession Act in intestate Muslim estates.
Supreme Court’s Determination
- Jurisdiction
The Court held that the matter raised constitutional issues under Article 163(4)(a) and was properly before it.
- Equality Trumps Blanket Discrimination
While Article 24(4) permits the application of Muslim law, the Court found that this cannot be used to justify blanket discrimination against children born out of wedlock. Any such departure must meet a “strictly necessary” proportionality test, which the Appellant failed to demonstrate.
- Primacy of Child Welfare
Referring to Article 53(2), the Court emphasized that the best interests of the child are paramount. It held that it was unjustifiable to disinherit children for the circumstances of their birth, especially where the deceased acknowledged them in life.
- Inclusion of All Acknowledged Children
All children fathered and acknowledged by the deceased were declared beneficiaries or dependants, with the exception of one whose paternity was disproved.
Legal and Societal Impact
- Constitutional Supremacy Over Religious Norms
In a landmark affirmation of the 2010 Constitution as the grundnorm, the Supreme Court held that while religious pluralism is respected and recognized under Article 24(4), it cannot supersede the Bill of Rights. The Court clarified that any application of Islamic personal law, particularly in matters of inheritance, must align with constitutional guarantees such as equality (Article 27), human dignity, and the best interests of the child (Article 53).
The purport of this interpretation was to harmonize personal law with the Constitution, ensuring that religious practices do not undermine constitutional values, especially those protecting vulnerable populations such as children born out of wedlock. Thus, constitutional supremacy overrides religious pluralism where the two conflict, reaffirming that no child should suffer legal exclusion due to their birth circumstances.
- Protection of Vulnerable Children
This decision shields children born out of wedlock, often the most marginalized, from structural disinheritance.
- Recognition of Blended Families
The ruling modernizes the approach to blended and multi-spousal families, affirming the rights of children from all unions, formal or informal.
Reflections and Islamic Perspectives
While some members of Kenya’s Muslim community have expressed reservations about the ruling, progressive Islamic scholars note that the Qur’an, specifically Chapter 4: Verses 8–9, supports compassionate and equitable treatment of children, including inheritance where appropriate. This ruling opens the door to a more inclusive reading of Islamic texts, aligning faith with Kenya’s supreme legal framework.
Conclusion
This ruling is more than a legal pronouncement; it’s a moral recalibration of how Kenyan law treats children, families, and religious diversity. It underscores that no child should suffer legal exclusion due to parental circumstances, and sets a precedent for reconciling personal law with constitutional imperatives in a plural society.
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By: Sheila Mwikali
