The Supreme Court has upheld a landmark ruling by the Court of Appeal affirming inheritance rights for children born to muslim fathers out of wedlock, citing the constitutional principle of non-discrimination.
In its verdict delivered on Monday, the apex court stated that all children, regardless of the marital status of their parents, must be treated equally under the law, including in matters relating to succession and inheritance.
This effectively bars any interpretation of Islamic inheritance principles that excludes children born outside marriage from benefiting from their father's estate.
“The Judgment of the Court of Appeal delivered on 10th November, 2023 is hereby affirmed and specifically the finding that the children of the appellant as well as the 1st and 3rd respondents are beneficiaries and/or dependents of the estate of the deceased,” read part of the judgment delivered by Chief Justice Martha Koome.
“For clarity, this refers to all of the appellant's four children; three of the 1st respondent's children, that is, LK, HK, and TK; and the 3rd respondent's son, HM.”
The case, which dates back several years, stemmed from a family dispute over the distribution of a deceased muslim man’s estate. His children from outside a formal Islamic marriage had been excluded from inheriting, prompting a legal challenge that culminated at the Supreme Court.
The Court of Appeal had, in November 2023, ruled in favour of the children, stating that such exclusion contravened Article 27 of the Constitution, which guarantees equality and freedom from discrimination.
A three-judge bench comprising Justices Gatembu Kairu, Pauline Nyamweya, and George Odunga agreed that religion abhors sex before marriage. It is unfair to sideline children born from such escapades when their fathers die.
Islamic law dictates that where a child has been born out of a marriage, he or she can only inherit from the mother and not the father. However, Justices Kairu, Nyamweya, and Odunga were of the view that the rights of a child supersede one's marital status.
They argued that there is no rational justification to prove that a child born in a marriage has a higher claim to wealth than one who is born outside matrimony. The ruling ignited a national conversation on the intersection of religious law and constitutional rights, particularly in a diverse society like Kenya’s.
The Supreme Court’s decision now sets a binding precedent that strengthens legal protections for children born out of wedlock, especially in communities where cultural or religious norms may have previously dictated otherwise.
Legal experts have termed the judgment a critical affirmation that constitutional rights cannot be limited by religious or customary laws when it comes to children’s welfare.
With this decision, families with similar disputes will now have clear legal backing when seeking equitable treatment for all children in inheritance matters, regardless of marital status or religious affiliation. The ruling also places greater responsibility on courts handling succession cases to ensure they uphold constitutional principles above sectarian interpretations, according to legal experts.
