Background of the Case
The Court of Appeal in Nairobi, on 10 November 2023, delivered a landmark judgment in Faraj v Mwawasi & 2 others (Civil Appeal E043 of 2022). The court held that children born outside marriage are entitled to inherit from their fathers, even in matters governed by Islamic law. The decision relied on the equality provisions under Article 27 of the Constitution, which guarantee equal treatment for all persons.
The judges reaffirmed that a child’s right to inheritance does not depend on the marital status of the parents. They drew from earlier authority such as Rono v Rono, which established that all children must be treated equally in succession matters.
Supreme Court Confirmation
In June 2025, the Supreme Court upheld the Court of Appeal’s decision, confirming that discriminatory succession practices cannot override the Constitution. The apex court stressed that both personal and religious laws must conform to the principle of equality and the best interests of the child must always take priority.
Court’s Reasoning
Both courts made it clear that the Constitution is the supreme law of the land and that no custom or personal law can be applied in a way that contradicts its provisions. They emphasised that all children, regardless of the circumstances of their birth, have the same inheritance rights under Kenyan law.
Impact of the Rulings
These decisions have now firmly established that children born outside marriage cannot be excluded from inheritance. The rulings come at a time when family law reforms are also being considered, including the creation of specialised family courts to handle divorce, custody, adoption, and succession matters. Mediation and arbitration are also being promoted to speed up the resolution of family disputes.
Together, the legal reforms and the inheritance rulings are expected to make family and succession processes faster, fairer and more accessible while protecting the rights of all children. Full petition HERE
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