The Supreme Court Affirms the Right to Inheritance for Children Born Out of Wedlock Under Islamic Law

This digest examines the landmark decision of the Supreme Court of Kenya in Fatuma Athman Abud Faraj vs Ruth Faith Mwawasi & 2 Others, which addressed the critical legal question of whether children born out of wedlock to a deceased Muslim parent are entitled to inherit from their father’s estate, particularly when such exclusion is grounded in Muslim personal law. Crucially, the case navigates the intersection of religious pluralism, the right to equality, and the paramountcy of children’s rights under the Kenyan Constitution.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The dispute arose following the intestate death of Salim Juma Hakeem Kitendo (the deceased) on 23^rd February, 2015, in Tanzania. Subsequently, multiple parties initiated succession proceedings, each claiming heirship to the deceased’s estate.

The Appellant, Fatuma Athman Abud Faraj, asserted her status as the deceased’s widow, having solemnized her marriage under Islamic law on 4^th August, 2006, and named herself and her four children as the sole legitimate heirs. She initially filed succession proceedings in the Kadhi’s Court, Mombasa.

The 1^st Respondent, Ruth Faith Mwawasi, describing herself as the deceased’s widow, alongside her sister, the 2^nd Respondent, filed separate succession proceedings in the High Court at Mombasa. The 1^st Respondent claimed cohabitation with the deceased from 2000, during which they had four children. She later converted to Islam in 2011 and celebrated an Islamic marriage with the deceased in December 2011. She listed herself and her four children as heirs.

The 3^rd Respondent, Marlin Coram Pownali, also claimed to be the deceased’s widow and was joined as an interested party. She asserted cohabitation from 2011, conversion to Islam, and subsequent Islamic marriage with the deceased, resulting in one child.

The Appellant challenged the claims of the 1^st and 3^rd Respondents, alleging discrepancies in the 1^st Respondent’s marriage documentation and asserting that some of her children were not the deceased’s biological offspring or were born out of wedlock, thus being illegitimate under Muslim law and disentitled to inheritance. She similarly challenged the 3^rd Respondent’s marriage as null and void due to a subsisting civil marriage and contended that the 3^rd Respondent’s child was illegitimate. Both the 1^st and 3^rd Respondents defended the legitimacy of their marriages and children, with the 1^st Respondent asserting the Appellant’s marriage had been dissolved. The succession cause from the Kadhi’s Court was later transferred and consolidated with the High Court matter.

JOURNEY THROUGH THE COURTS

1. At the High Court

The High Court (Onyiego, J.) delivered its judgment on 25^th March, 2022. It found that Muslim law was the applicable law for the deceased’s estate, provided it was not “repugnant to justice and morality”.

• Widows: The High Court found both the Appellant and the 1^st Respondent to be legitimate widows entitled to a share of the estate. The 3^rd Respondent’s marriage was declared a nullity due to a subsisting civil marriage.
• Children: The Appellant’s children were recognized as legitimate heirs. The 1^st Respondent’s eldest son, SJ, was found not to be the deceased’s biological child and thus not entitled to inherit. However, the court took an expansive view on the entitlement of other children, holding that while Muslim law generally deems children born out of wedlock illegitimate for inheritance, a Muslim man’s biological children born out of wedlock should be treated as dependants and/or beneficiaries to avoid prejudice due to their parents’ choices.
• Paternity and DNA: The court ordered DNA testing for the 1^st Respondent’s three other children and the 3^rd Respondent’s child to establish paternity, with samples from the Appellant’s children. Letters of administration were issued jointly to the Appellant and the 1^st Respondent.

At the Court of Appeal

Aggrieved, the Appellant appealed, arguing that the High Court erred in recognizing the 1^st Respondent’s marriage, disregarding Muslim law on illegitimate children, and ordering DNA testing. The 3^rd Respondent also filed a cross-appeal.

The Court of Appeal (Gatembu, Nyamweya & Odunga, JJ.A) delivered its judgment on 10^th  November, 2023.

• Marriage Validity: The Court of Appeal upheld the High Court’s findings regarding the validity of the 1^st Respondent’s marriage to the deceased and the nullity of the 3^rd Respondent’s marriage.
• Children’s Entitlement: Crucially, the appellate court held that denying children born out of wedlock the right to inherit, while allowing those born within a marriage to benefit from the same deceased father, would constitute unfair and unjustified discrimination under Articles 27 (Equality and Freedom from Discrimination) and 53 (Children’s Rights) of the Constitution. The court stressed that children’s rights must be assessed independently of their parents’ marital status, and the best interests of the child must be paramount. It also invoked Article 10 (National Values), asserting that any cultural or religious practice discriminating against children based on their parents’ marital status contravenes constitutional values.
• DNA Testing: The Court of Appeal faulted the High Court for ordering DNA testing without a formal application and found no basis for it. It noted that there was uncontroverted evidence that the deceased treated the children as his own, entitling them to benefit as dependants.
• Orders: The appeal was partly allowed, setting aside the DNA testing order and substituting it with an order that the 1^st Respondent’s children (save for SJ) and the 3^rd Respondent’s son are entitled to benefit from the deceased’s estate. The matter was remitted to the High Court for determination of respective entitlements.

ANALYSIS BY THE SUPREME COURT

The Appellant filed a second appeal to the Supreme Court, challenging the Court of Appeal’s decision, primarily on the interpretation of Article 24(4) of the Constitution and its interplay with the rights to equality and non-discrimination. The Supreme Court identified three key issues for determination:

1. Jurisdiction to entertain the appeal.
2. Whether the Court of Appeal improperly limited Article 24(4) and misconstrued its relationship with Article 27.
3. Whether the Court of Appeal failed to give effect to the mandatory application of Muslim law under Section 2(3) of the Law of Succession Act.

• Jurisdiction to Entertain the Appeal

The Supreme Court confirmed its jurisdiction under Article 163(4)(a) of the Constitution, which allows appeals “as of right in any case involving the interpretation or application of the Constitution”. The Court reiterated that a bare assertion of constitutional issues is insufficient; it must be demonstrated that the issues were raised and determined in the lower courts and remain central to the appeal. Given that the dispute unequivocally turned on the interpretation and application of Articles 24(4), 27, and 53 of the Constitution, the Court was satisfied it had jurisdiction.

• The Intersection of Religious Pluralism and the Right to Equality: Articles 24(4), 27, and 53 of the Constitution

This was the central legal question. The Appellant contended that Article 24(4) provided a constitutional limitation to the right to equality (Article 27), allowing the application of Muslim law in inheritance without being subjected to a “repugnancy yardstick”.

The Supreme Court undertook a comprehensive interpretation of Article 24(4), which states:

• “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”.

The Court emphasized that the Constitution must be interpreted holistically, promoting its purposes, values, and principles (Article 259(1)) and advancing human rights and fundamental freedoms (Article 20(4)). Article 24(4) is recognized as a limited constitutional derogation designed to accommodate religious freedom and the pluralistic character of Kenyan society. It aligns with the institutional recognition of Kadhis’ Courts under Article 170(5).

Crucially, the Court analyzed the phrase “to the extent strictly necessary” within Article 24(4). Drawing persuasive parallels from Section 15(4)(c) of the Constitution of Botswana (Ramantele Vs Mmusi and Others) and international human rights conventions like the ICCPR and ECHR, the Court concluded that this phrase introduces the principle of proportionality. This means any derogation from the general right to equality is not open-ended but must be narrowly tailored, reasonable, justifiable, and strictly necessary. It does not authorize broad, indiscriminate, or automatic exclusions from constitutional equality protections.

Applying the established proportionality test (suitability, necessity, and proportionality in the strict sense, as articulated in Kandie Vs Alassane BA & another), the Supreme Court found no reasonable justification for distinguishing between children’s entitlement to their father’s estate based on the marital status of their parents. Denying inheritance to children born out of wedlock by the same deceased father, on the basis of their parents’ alleged “sins,” was deemed unreasonable and unjustifiable, thereby failing the proportionality test under Article 24(4).

This conclusion was further reinforced by the Constitution’s commitment to protecting vulnerable groups, particularly children, under Article 21(3), and the extensive provisions of Article 53. The Court highlighted Article 53(1)(e), which guarantees a child’s right to parental care and protection, including the equal responsibility of both parents, regardless of their marital status. Most importantly, Article 53(2) establishes the paramountcy of a child’s best interests in every matter concerning the child, which the Court in CMM (Suing as the Next Friend of and on Behalf of CWM) & 6 others Vs Standard Group & 4 others had affirmed as an enforceable right. Drawing on comparative jurisprudence (e.g., Re R (A Minor) (Religious Sect) in England and APDF and Another Vs Mali by the African Court on Human and Peoples’ Rights), the Supreme Court affirmed that in cases involving children and religious laws, the protection of the child’s welfare and best interests must be the paramount consideration.

Consequently, the Supreme Court dismissed the Appellant’s argument on this limb, affirming the Court of Appeal’s conclusion that denying a child parental care and protection based on the marital status or perceived “sins” of the parents would be contrary to the child’s best interests.

• Application of Muslim Law and the Law of Succession Act: Section 2(3)

The Appellant argued that Section 2(3) of the Law of Succession Act mandated the exclusive application of Muslim law to the deceased’s estate. Section 2(3) states that

“the provision of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of this death is a Muslim to the intent that in lieu of such provisions the devolution of the estate of any such person shall be governed by Muslim law”.

The Supreme Court acknowledged the applicability of Islamic law to the deceased’s estate but noted that the Court of Appeal had appropriately harmonized it with constitutional rights. This approach, the Supreme Court held, is consistent with Article 20(3)(a) and (b) of the Constitution, which obligates courts to develop the law and adopt interpretations that most favour the enforcement of rights and fundamental freedoms. The implication is that all laws, including religious or customary law, must be interpreted and applied through the lens of the Bill of Rights. Where a law does not yield an outcome consistent with constitutional values, courts must integrate the normative content of the Bill of Rights into its interpretation and application. The Court therefore dismissed the Appellant’s contention on this point, affirming the Court of Appeal’s decision.

CONCLUSION AND ORDERS

In light of the foregoing analysis, the Supreme Court dismissed the appeal and affirmed the Judgment of the Court of Appeal delivered on 10^th November 2023. This specifically upheld the finding that all of the Appellant’s four children, three of the 1^st Respondent’s children (LK, HK, and TK), and the 3^rd Respondent’s son (HM) are beneficiaries and/or dependants of the deceased’s Estate.

The Supreme Court directed that letters of administration for the deceased’s Estate be issued jointly to the Appellant and the 1st Respondent as the deceased’s widows. The matter was remitted to the High Court at Mombasa for the determination of the respective entitlements of the beneficiaries by a Judge other than Onyiego, J., on a priority basis.