Family LawEXCLUSION OF CHILDREN BORN OUT OF WEDLOCK FROM INHERITANCE IN ISLAMIC LAW IS A COMPLETE VIOLATION OF ARTICLE 53 OF THE CONSTITUTION OF KENYA

INTRODUCTION

The Supreme Court of Kenya on 30/06/2025 declared itself in the case of FAAF v RFM & 2 others (Petition E035 of 2023) in an appeal concerning whether children born out of wedlock to a deceased Muslim parent could be excluded from inheritance under Islamic law. The appellant argued that section 2(3) of the Law of Succession Act mandated application of Muslim law, which barred such children from inheriting. The Court of Appeal, however, held that such exclusion would contravene articles 27 and 53 of the Constitution, which guaranteed equality and protected the best interests of the child. On further appeal, the Supreme Court affirmed that article 24(4) permitted only narrowly tailored derogations from equality rights in matters of Muslim personal law, “qualified to the extent strictly necessary.” Excluding children born out of wedlock failed the proportionality test and could not be justified on religious grounds. The Supreme Court emphasized that the best interests of the child were paramount, and all laws, including religious laws, must align with the Bill of Rights in accordance with Chapter 4 of the Constituion of Kenya.

BRIEF FACTS

The dispute was about the right of children to inherit under the Muslim law, where they were born out of wedlock by a deceased Muslim parent, and whether such children could be excluded from benefitting from the estate of the deceased Muslim parent.

The trial court found that SJ, the eldest child of the 1st respondent, was born before the 1st respondent and the deceased began cohabiting. As such, the court held that SJ was not entitled to benefit from the deceased’s estate. However, the trial court found that the other three children, being LK, HK and TK, although born prior to the formalization of the marriage between the deceased and the 1st respondent, were nonetheless born during their period of cohabitation and were therefore entitled to inherit.

On appeal, the appellant argued that under Muslim law, children born out of wedlock were not entitled to inherit from their deceased father’s estate. The appellant, in making that point, contended that the trial court erred by failing to apply that rule of succession as required under the Law of Succession Act and relevant Islamic principles.

The Court of Appeal, however, upheld the trial court’s decision on that issue. It held that article 27 of the Constitution prohibited the State from discriminating against any person, directly or indirectly, on any ground. The Court of Appeal reasoned that denying children born out of wedlock the right to inherit, while allowing those born within a marriage to benefit, would constitute unjustifiable and unfair discrimination. It emphasized that the rights of children must be assessed independently from the legal status of their parents’ union and the best interest of a child should always be of paramount consideration at all times.

COURT ORDERS AND CONSIDERATIONS

The Supreme Court of Kenya rendered itself thus:-

1. The Constitution was to be applied in a manner that promoted its purposes and principles, advanced the rule of law, and human rights and fundamental freedoms. Article 24(4) of the Constitution created a limited constitutional derogation from the equality provisions of the Bill of Rights to permit the application of Muslim personal law in personal status, marriage, divorce, and inheritance. That reflected the Constitution’s respect for religious freedom, as guaranteed under article 32, and its broader transformative commitment to pluralism. Kenyan society was pluralistic. The Constitution continually sought to strike a balance between fostering national unity and preserving ethnic, cultural, and religious diversity, declaring that there shall be no State religion.
2. The reach of the Kadhi’s Court was set out in article 170(5) of the Constitution as being limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties professed the Muslim faith and submit to the jurisdiction of the Kadhi’s courts.
3. Pertinent issues regarding Muslim law were not decided before the Kadhi’s Court as provided above as the succession cause filed there was consolidated with the petition filed before the High Court. Nonetheless, section 2(3) of the Law of Succession Act applied Islamic law to determine the beneficiaries of the deceased who indisputably professed Muslim faith.
4. The provision limited the scope of the qualification to matters before the Kadhis’ Courts.The provision was applicable only to persons who professed the Muslim faith.The qualification was limited to matters relating to personal status, marriage, divorce and inheritance.
5. The phrase, “qualified to the extent strictly necessary”; as specifically spelt out in article 24(4) of the Constitution signaled that any derogation from the general right to equality under the Bill of Rights was narrowly tailored and circumscribed. Article 24(4) was not a carte blanche for overriding the right to equality and freedom from discrimination; rather, it remained subject to the same proportionality test embodied in article 24(1). The effect therefore was to anchor any permissible departure within a framework of reasonableness, justification, necessity, and proportionality, thus ensuring that the principle of equality remained the default constitutional position even when Islamic legal norms were accommodated.
6. The notion of “qualified to the extent strictly necessary” was a formulation common in international human rights conventions. It closely mirrored article 4(1) of the International Covenant on Civil and Political Rights (ICCPR). The term “extent strictly necessary” introduced the principle of proportionality as the threshold for assessing whether any derogation was necessary or justified.
7. Any departure from the right to equality must be narrowly tailored and justified by compelling circumstances. Derogations under article 24(4) of the Constitution must also be confined within the bounds of absolute necessity and within the confines of the parties who professed the Muslim faith.
8. Article 24(4) of the Constitution must be read to allow only narrowly tailored and strictly necessary departures from the equality and freedom from discrimination provisions of the Bill of Rights. It did not authorize broad indiscriminate or automatic exclusions of Muslims from constitutional equality protections, but rather permitted limited exceptions and under stringent conditions in any event.
9. The exclusion of children born out of wedlock from inheriting from their deceased father’s estate under Islamic law did not satisfy the test of proportionality so as to provide justification for denying them the protection of the equality provisions in the Bill of Rights. For the effect of impugned law on a right to be proportionate, it must pursue a legitimate objective and satisfy three subtests;measure adopted must be suitable, meaning it must be capable of achieving the intended goal (suitability).
10. It must be necessary, there must be no less restrictive means available to achieve the same purpose (necessity).The benefits of achieving the objective must outweigh the harm caused to the individual whose right was affected (proportionality in the strict sense).No reasonable justification had been advanced that would warrant drawing a distinction between children in relation to their entitlement to their father’s estate in departure from the guarantee to equal protection and benefit of the law in article 27(1) of the Constitution. Denying children born out of wedlock by the same parents the same benefits accorded to children born within wedlock, on the basis of the alleged “sins” of their parents, was unreasonable and unjustifiable. Any attempt to exclude children born out of wedlock from benefitting from their father’s estate failed the proportionality test envisaged by the phrase “qualified to the extent strictly necessary” which was a condition under article 24(4) of the Constitution.
11. Article 24(4) of the Constitution must be read in harmony with other provisions, such as articles 21 (3) and 53 of the Constitution. The Constitution must be read as a whole and not in isolation between the lines. The Constitution expressed its commitment to the protection of the rights of the vulnerable groups including children. A child’s best interests were of paramount importance.
12. In cases involving the welfare of children touching on religious laws, doctrines, teachings, rules, or tenets, the paramount consideration by the court must be the protection of the welfare and best interests of the child, taking into account the specific circumstances of each case. Since every child was entitled to parental care and protection under article 53 (1)(e) of the Constitution, it would be contrary to the best interests of the child for the courts to deny a child such care and protection on the basis of the marital status or perceived sins of the child’s parents.
13. All laws, including religious or customary law, must be interpreted and applied through the lens of the Bill of Rights. Where the law applicable to a dispute did not yield an outcome consistent with those values and rights, the courts must integrate the normative content of the Bill of Rights into the interpretation and application of that law. In doing so, the law was transformed and applied in a manner that promoted the Constitution’s transformative vision.

CONCLUSION

The Appeal was dismissed for lacking merit.

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