The apex court on Monday made a landmark judgement by dismissing an appeal that had challenges the inheritance rights of children born out of wedlock to a Muslim father.
In the case, Fatuma Athman Abud Faraj had challenged inheritance being awarded to her late husband Salim Juma Hakeem Kitendo’s children who were born out of wedlock.
She has argued that children born before formal Islamic marriages are not entitled to inherit from their deceased Muslim father.
Faraj who had four children with her husband within a recognized Islamic marriage argued that children from the deceased’s later partners, Ruth Mwawasi and Marlin Pownall, were born outside wedlock and therefore illegitimate under Islamic law. She asserted they were not entitled to inherit from the deceased’s estate.
However, the Supreme Court judges upheld the decision by the high court and the appeal court which had ruled that the children should not be left out of the inheritance as it amounted to unfair discrimination.
The court said the principle of proportionality must apply when limiting rights under Article 24(4), which allows application of Muslim law in personal matters. Such limitations must be narrowly tailored, reasonable, justifiable, and necessary.
“Denying children inheritance because they were born out of wedlock is unjustifiable and unreasonable, especially when considering the best interests of the child, as provided under Article 53(2),” the court said
The court noted that The Court of Appeal had rightly harmonized Islamic inheritance rules with the Constitution, favoring rights enforcement in line with Article 20
The case has now been returned to the High Court in Mombasa for a fresh determination on how the estate should be shared.
