Kenyan Supreme Court Upholds Inheritance Rights for Children Born Out of Wedlock Under Islamic Law

Kenya's Supreme Court has affirmed that children born outside of wedlock are entitled to inherit from their father's estate, even when Islamic law governs the inheritance. 

The unanimous ruling, delivered by a seven-judge bench, resolves a long-standing dispute and establishes a significant precedent regarding the intersection of religious law and constitutional rights in Kenya. The case centred on the estate of the late Salim Juma Hakeem Kitendo, whose succession was contested by Fatuma Athman, his legally recognised wife under Islamic law, and Rose Mwawasi, with whom Kitendo had cohabited and had four children before formally marrying her after her conversion to Islam in 2011. 

Athman argued that Islamic inheritance rules should exclude Mwawasi's children because they were born before her marriage to Kitendo, rendering them illegitimate under Muslim law. The Supreme Court rejected this argument, asserting that a child's legal rights cannot be diminished based on their birth status. The judges said that "denying children the same rights solely due to the circumstances of their birth is neither reasonable nor justifiable." 

The court clarified that while the Constitution acknowledges religious or customary laws, they must operate within the bounds of fairness and constitutional scrutiny.

The court's decision hinged on Article 24(4) of the Constitution, which permits the application of religious personal laws among adherents of specific faiths. However, the court emphasised that this provision does not supersede the overarching constitutional requirements for proportionality and reasonableness. The ruling underscored that while religious traditions are respected, they cannot be used to enforce discrimination, especially concerning the welfare of children.

The court upheld a previous ruling from the Court of Appeal, which had also favoured equal treatment for Kitendo's children. The Supreme Court reiterated that the best interests of the child must be paramount and that a parent's marital status cannot dictate a child's inheritance eligibility. The court effectively ruled that religious doctrines cannot be used to perpetuate inequity in personal status and inheritance matters.

As a result of the ruling, the bench directed that letters of administration for Kitendo's estate be issued jointly to both Athman and Mwawasi, facilitating inclusive management of the assets. The case now returns to the High Court in Mombasa, where the specific entitlements of each beneficiary will be determined.