Kenya’s Supreme Court has affirmed the constitutional rights of children born outside marriage to inherit their deceased Muslim parent’s estate, marking a significant milestone in the interpretation of religious laws and constitutional protections.
The case, Petiton No. E035 of 2023, involved a complex succession dispute over the estate of the late Salim Juma Hakeem Kitendo, who died intestate in 2015.
The primary issues revolved around the inheritance rights of children born out of wedlock and the application of Islamic law under Kenya’s 2010 Constitution.
The Supreme Court, in a unanimous judgment delivered by Chief Justice Martha Koome, upheld the Court of Appeal’s decision that children born out of wedlock are entitled to benefit from their father’s estate, regardless of their parental circumstances.
The Court emphasized that the principles of equality enshrined in Article 27 of the Constitution cannot be overridden by religious laws that discriminate based on birth status, especially when such discrimination contravenes fundamental rights.
The Court further clarified that the constitutional provision under Article 24(4), which allows Muslim law to be applied in matters of inheritance, must be interpreted in harmony with the Bill of Rights.
The phrase “to the extent strictly necessary” was highlighted as a proportionality test, ensuring that any limitations on rights are narrowly tailored and justified.
This ruling is hailed as a progressive step toward harmonizing religious laws with Kenya’s constitutional commitments to equality and non-discrimination.
It challenges traditional interpretations of Islamic inheritance laws that exclude children born outside wedlock, asserting that such exclusions are incompatible with the Constitution’s values.
Religious leaders and Muslim scholars have expressed mixed reactions, with some welcoming the clarification and others calling for a broader dialogue on the application of Islamic law within Kenya’s legal framework.
The Court ordered that the estate of the late Salim Juma Hakeem Kitendo be distributed jointly to his two surviving widows, including the appellant, and their children, with the matter now remitted to the High Court for detailed determination of individual entitlements.
