Inheritance by Children in Kenya Law: Rights Under Islamic Rulings & Supreme Court Decisions

Inheritance by children law in Kenya under Islamic rulings clarified by Supreme Court. Know rights of children born out of wedlock—Book our team of estate planning lawyers today.

Introduction

In line with Muslim Law, children who are born out of wedlock to Muslim parents may be prohibited from inheriting part of the estate of their deceased parent. This position has provoked different views regarding the compatibility of Muslim law with the Constitution, bearing in mind that as per the Constitution, the right to equality should be upheld by all. The Supreme Court (SC) being the highest court in the land, it’s opinion regarding the same was much needed.

As probate and succession lawyers in Kenya, we regularly advise families on inheritance disputes, will writing, and estate administration. This ruling is particularly important for clients dealing with Islamic inheritance matters, succession petitions, and contested wills.

Key Highlights of this Inheritance by Children Case

This case was premised on the question of whether a child born out of wedlock to a Muslim parent should be excluded from inheritance. It entails a dispute amongst three women, namely, Fatuma, Ruth and Marlin, who the deceased had sired children with. Fatuma had been married to the deceased under Islamic law and their union had been blessed with four issues (children). However, the other two women had had children with the deceased outside marriage. Owing to this, Fatuma intimated that, herself and her four children were the only legitimate beneficiaries of the deceased’s estate under Islamic Law.

This is a common scenario faced in probate and estate administration in Kenya, where multiple families or children of the deceased make competing claims. Succession lawyers often step in to guide beneficiaries through legal procedures under the Law of Succession Act and the Constitution.

Both the High Court and the Court of Appeal found that both Fatuma and Ruth were legally married to the deceased in light of the fact that there was nothing to justify that the evidence they had tabled before the court to prove their marriages was false. Both courts further held that Marlin’s marriage was void given that she had previously contracted a marriage, thus lacking capacity to enter into another marriage.

Fatuma was aggrieved by the decisions of the High Court and the Court of Appeal in holding that the deceased’s children who were born out of wedlock had a right to benefit from the deceased’s estate in accordance with the Principle of equality under Article 10 and 27 of the Constitution of Kenya. Consequently, she lodged an appeal at the Apex Court and was of the view that the decision of the Court of Appeal had not fully taken into consideration Article 24(4) of the Constitution of Kenya which stipulates that, the rights to equality in the Bill of Rights can be limited, to the extent strictly necessary for the application of Muslim law before the Kadhi’s courts for matters such as personal status, marriage, divorce, and inheritance involving Muslims. The Appellant was also of the view that, failure to apply Islamic Law was a violation of Article 2(3) of the Law of Succession Act (Cap. 160 of the Laws of Kenya), which provides that the provisions of the Act do not apply to the estate of persons who were Muslims at the time of their death. The SC affirmed the Court of Appeal’s decision that all law, religious or customary should be applied in a manner that is consistent with the Constitution.

This judgment has a direct impact on succession cases in Kenya, especially for Muslim families managing probate matters and estate distribution. It clarifies that inheritance disputes should balance constitutional rights, religious law, and the principles of equality.

Additionally, the SC held that, Article 24(4) does not give one discretionary powers for prevailing over the right to equality and freedom from discrimination. Being guided by several constitutional provisions such as Article 259(1), 20(4), 53 of the Constitution of Kenya, the Apex Court was of the view that, Courts have an obligation to promote human rights and fundamental freedoms in the Bill of Rights while also making sure their decisions are consistent with the Constitution.

The Apex Court went further to affirm that, Article 24(4) is subject to a proportionality test. This implies that, there must always be valid reasons or justification when courts depart from the right of equality. The Supreme Court found that, disinheriting children based on the marital status of their parents is unreasonable and unjustifiable thus the Islamic Law on this matter could not pass the Proportionality Test.

The sum of it all is that, being guided by Article 21(3) and 53 of the Constitution of Kenya, the SC held that, children are vulnerable groups within the society and their best interests are of paramount importance. Therefore, denying them the right to inherit based on religion and circumstances of their birth is discriminatory and against their best interests.

For clients seeking will writing services in Kenya, this decision also highlights the importance of drafting clear wills and succession plans to avoid inheritance disputes, particularly in blended families.

Conclusion

Drawing from the above, all Kenyan Courts are now legally bound to hold that children who are born out of wedlock to Muslim parents have a right to inherit part of the estate of their deceased parent. In final analysis, first, the decision laid down the principle of supremacy of the constitution in that, all laws, be it religious or customary must conform to the values, human rights and fundamental freedoms outlined in the Constitution, as such there can be no justifiable or reasonable explanation as to why children should be disinherited. Lastly, the judgement underpinned a transformative way to interpret laws so as to uphold constitutional values such as equality and human dignity.

As experienced succession and probate lawyers in Kenya, we guide clients on estate administration, inheritance disputes, and will drafting. This Supreme Court ruling provides much-needed clarity for families navigating Islamic inheritance and succession matters under Kenyan law.