The Supreme Court of Kenya, in Petition No. E035 of 2023, resolved a contentious dispute over inheritance rights under Islamic law, pitting Fatuma Athman Abud Faraj against Ruth Faith Mwawasi, Judith Malele Mwawasi, and Marlin Coram Pownai. The case stemmed from the intestate death of Salim Juma Hakeem Kitendo in 2015, provoking competing claims over his estate. The appellant, Fatuma, argued that only her children, born within a valid Islamic marriage, were entitled to inherit, while the respondents’ children, born out of wedlock, should be excluded under Muslim law.
The core issue was whether excluding children born out of wedlock from inheriting under Muslim law violates Kenya’s Constitution, particularly Articles 24(4), 27, and 53. Article 24(4) allows the application of Muslim law in matters of personal status, marriage, divorce, and inheritance, but qualifies equality rights only to the extent “strictly necessary.” Fatuma contended that the Court of Appeal improperly prioritized equality under Article 27 over Islamic law, which bars illegitimate children from inheritance. The respondents argued that such exclusion discriminates against children based on their parents’ marital status, contravening constitutional protections.
The Supreme Court unanimously dismissed Fatuma’s appeal on June 30, 2025, affirming the Court of Appeal’s decision. The Court ruled that denying children born out of wedlock inheritance rights fails the proportionality test under Article 24(4), as it unjustly discriminates against them based on their parents’ choices. Drawing on Articles 27 and 53, the Court emphasized that children’s rights to parental care and protection supersede rigid applications of religious law. The Court also found that Section 2(3) of the Law of Succession Act, mandating Islamic law for Muslim estates, must align with constitutional values, prioritizing the best interests of the child.
In its analysis, the Court adopted a holistic constitutional interpretation, balancing religious pluralism with equality. It clarified that Article 24(4)’s derogation from equality is narrowly tailored, requiring proportionality and necessity. The Court rejected the exclusion of out-of-wedlock children, noting that the deceased had treated them as his own during his lifetime.
Consequently, the Supreme Court upheld the entitlement of the appellant’s four children, three of the first respondent’s children (LK, HK, TK), and the third respondent’s son (HM) to inherit from the deceased’s estate. The matter was remitted to the High Court in Mombasa for determining each beneficiary’s share, with letters of administration issued jointly to Fatuma and Ruth. Given the case’s public interest, each party bears their own costs.
We hope this analysis clarified how the Supreme Court balanced religious tradition and constitutional equality to protect children’s rights. You can read more here. If you found this post informative, please like, share, and leave a comment; your engagement helps spread awareness and sparks important discussions.
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