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In a recent judgment, the Supreme Court of Kenya affirmed that children born out of wedlock are entitled to inherit from their deceased Muslim father’s intestate estate.
This landmark case involved competing inheritance claims between children born both within and outside of marriage, raising questions about the interplay between Islamic inheritance law and the constitutional principle of equality.
14 July 25
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The Supreme Court held that it is unconstitutional to deny children born out of wedlock the right to inherit from their father’s estate while allowing only children born within wedlock to do so. The Court emphasised that all children are equal before the law and the circumstances of a child’s birth should not operate as a bar to inheritance.
Key Implications of the Decision
This decision cements a growing judicial trend in favour of harmonising personal law with constitutional principles of non-discrimination and child welfare. Islamic law prohibits children born out of wedlock from inheriting from their biological father. However, the Supreme Court held that Islamic law, while recognised under the Constitution of Kenya, cannot override the rights guaranteed under the Constitution, specifically, the right to equality and the best interests of the child.As a result of this judgment, children born out of wedlock to Muslim fathers are entitled to inherit from their father’s estate.
This decision cements a growing judicial trend in favour of harmonising personal law with constitutional principles of non-discrimination and child welfare. Islamic law prohibits children born out of wedlock from inheriting from their biological father. However, the Supreme Court held that Islamic law, while recognised under the Constitution of Kenya, cannot override the rights guaranteed under the Constitution, specifically, the right to equality and the best interests of the child.As a result of this judgment, children born out of wedlock to Muslim fathers are entitled to inherit from their father’s estate.
The Constitutional Framework
The Court’s reasoning was rooted in constitutional provisions which guarantees every child the right to parental care and protection, including equal responsibility from both parents, whether or not they are married, mandates that the best interests of the child be of paramount importance in every matter concerning the child and enshrines the right to equality and freedom from discrimination.
Although Kenyan law provides that the estates of Muslims shall be governed by Islamic law in inheritance matters, the Court held that Islamic law application must still comply with the Constitution’s overarching principles.
Historical Context and Legislative Gaps
Historically, Kenyan law did not impose parental responsibility or inheritance obligations on Muslim or non-Muslim fathers of children born out of wedlock.
In 2019, in a succession matter concerning a non-Muslim family, the High Court declared certain provisions of the Children Act and the Law of Succession Act (Cap. 160) unconstitutional for failing to align with the Constitution’s guarantees of equality and non-discrimination. The Court directed the Attorney-General to amend the relevant statutes and align them with the Constitution.
The current Children Act, 2022, reflects these constitutional values and principles as it recognises equal parental responsibility regardless of marital status of the parents and further affirms a child’s right to inheritance, subject to the Law of Succession Act.
The Law of Succession Act remains unchanged and does not impose inheritance obligations on a father who has not recognised or accepted a child born out of wedlock to be his. In practice, though, courts have continued to invoke constitutional principles to bridge this gap, thereby upholding a child’s right to inherit from the father’s estate.
What this means for a Muslim family
This decision has practical consequences for Muslims, and some solutions that could be considered when a Muslim man has children born out of wedlock are:
- Preparing a will that allocates up to one-third of his estate to children born out of wedlock, in line with Islamic testamentary limits, and/or
- Set up a lifetime trust, which could conform to Islamic principles. Assets settled into the trust during the settlor’s lifetime would not be subject to probate proceedings.
Courts are now more likely than ever to enforce inheritance rights for children born out of wedlock, and thus, planning one’s estate becomes more important than ever.
Should you have any questions regarding the information in this legal alert, please do not hesitate to contact Atiq Anjarwalla and Mona Doshi.
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Contributor
Mahnaaz Dormohamed – Trainee Lawyer