This analysis explains the Supreme Court of Kenya’s decision in Fatuma Athman Abud Faraj v. Ruth Faith Mwawasi & Others, a case which has been subject to debate following Supreme Court’s decision:
Facts
To begin, the case revolves around a dispute over the estate of Salim Juma Hakeem Kitendo, who passed away without a will in Tanzania on February 23, 2015. Fatuma Athman Abud Faraj, the appellant, claimed she was the deceased’s wife, married under Islamic law in 2006, and asserted that her four children were the sole rightful heirs. She initiated a case in the Kadhi’s Court in Mombasa to distribute the estate under Islamic law. Simultaneously, Ruth Faith Mwawasi (1st respondent) and her sister Judith Malele Mwawasi (2nd respondent) filed a case in the Mombasa High Court, stating Ruth was also a widow, having lived with the deceased since 2000, converted to Islam in 2011, and married him under Islamic law. Ruth named her four children as heirs, though one (SJ) was later excluded as not being the deceased’s biological child. Another woman, Marlin Coram Pownai (3rd respondent), claimed to be a wife, married under Islamic law in 2013, with one child. Fatuma contested Ruth’s marriage due to name discrepancies and argued that Ruth’s and Marlin’s children, born before their respective marriages, were illegitimate under Islamic law and ineligible to inherit. She also challenged Marlin’s marriage, citing an existing civil marriage.
Issues
The Supreme Court addressed two primary questions. Did the Court of Appeal incorrectly restrict Article 24(4) of the Kenyan Constitution, which permits Islamic law in matters of personal status, marriage, divorce, and inheritance for Muslims, and in doing so, misjudge its interaction with Article 27, which ensures equality and non-discrimination? Furthermore, did the Court of Appeal neglect to apply Islamic law as mandated by Section 2(3) of the Law of Succession Act, which requires a Muslim’s estate to follow Islamic law? Beyond these, the case raised larger questions about reconciling religious law with constitutional protections, especially for children born outside marriage.
Ruling
Subsequently, on June 30, 2025, the Supreme Court rejected Fatuma’s appeal and affirmed the Court of Appeal’s decision. The Court recognized Fatuma and Ruth as widows entitled to the estate. It also ruled that all children—Fatuma’s four, Ruth’s three (LK, HK, TK), and Marlin’s son (HM)—could inherit as beneficiaries or dependents, regardless of their legitimacy under Islamic law. The Court held that excluding children born out of wedlock would breach Articles 27 (equality) and 53 (children’s rights). It clarified that Article 24(4) allows Islamic law only to the “extent strictly necessary,” and any exclusion must be proportionate, which was not justified here. The Court directed the High Court to prioritize estate distribution, with Fatuma and Ruth as joint administrators, and ordered each party to cover their own costs, citing the case’s public interest.
Application
Moreover, the Supreme Court first verified its authority to hear the case, as it involved interpreting Articles 24(4), 27, and 53. Regarding the first issue, the Court examined Article 24(4), which allows Islamic law to limit equality rights in specific matters for Muslims. However, it emphasized that any deviation from equality must be narrowly tailored and justified through a proportionality test, assessing whether the measure achieves a valid goal, is necessary, and balances benefits against harm. The Court found no valid reason to deny inheritance to children born out of wedlock, as this would unfairly penalize them for their parents’ marital status, violating Article 27’s equal protection guarantee. Article 53, prioritizing children’s best interests and parental care regardless of marital status, reinforced this stance. The Court referenced international law, such as the African Charter on the Rights and Welfare of the Child, and cases like Ramantele v. Mmusi (Botswana), which struck down discriminatory customary laws.
Concerning the second issue, the Court acknowledged Section 2(3) of the Law of Succession Act, which mandates Islamic law for Muslim estates. Nevertheless, it held that courts must interpret Islamic law in alignment with constitutional values, per Article 20(3), which requires developing laws to uphold rights. The Court of Appeal appropriately reconciled Islamic law with constitutional protections by recognizing the children as dependents, supported by evidence that the deceased treated them as his own. The Supreme Court rejected Fatuma’s claim that Islamic law strictly bars illegitimate children from inheriting, finding such exclusion incompatible with constitutional principles.
After the ruling, debates emerged. Muslim scholars and traditionalists argue the decision weakens Islamic law, as the Quran and Hadith prioritize legitimate heirs, and Article 24(4) should fully exempt Muslim inheritance from equality rules. They worry about eroding religious autonomy. On the other hand, human rights advocates and progressive scholars applaud the ruling for safeguarding vulnerable children and aligning with global anti-discrimination trends. Legal experts are divided: some criticize the Court for overriding clear Islamic law, while others praise its balance of religious and constitutional norms, noting Article 24(4)’s “strictly necessary” limit. Public discussions, particularly on platforms like X, highlight tensions between cultural traditions and universal rights, with calls for clearer guidelines on applying religious law constitutionally.
Conclusion
In summary, the Supreme Court’s ruling in Fatuma Athman Abud Faraj v. Ruth Faith Mwawasi & Others confirms that children born out of wedlock can inherit from their Muslim father’s estate, prioritizing constitutional equality and children’s rights over strict Islamic law. By affirming the Court of Appeal, the Court ensures Fatuma, Ruth, and their children share the estate, while Marlin’s invalid marriage excludes her but not her son. The decision clarifies that Article 24(4) does not permit broad exemptions from equality protections, and Islamic law must align with constitutional values. The ruling has fueled debate, with traditionalists concerned about religious law’s erosion and progressives welcoming fairness for children. The case returns to the High Court for distribution, underscoring Kenya’s challenge of balancing religious pluralism with constitutional rights. Whole Case HERE
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