On 30th June 2025, the Supreme Court of Kenya delivered a landmark decision concerning the inheritance rights of children born out of wedlock in Petition No. E035 of 2023, Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & 2 Others. The deceased, Salim Juma Hakeem Kitendo, died intestate, leaving behind biological children. The appellant contended that these children were born outside a recognised Islamic marriage and, consequently, were not entitled to inherit from the deceased’s estate under Islamic law.
The decision attracted considerable public interest because it raised important constitutional and religious law questions. The appellant argued that Islamic law should exclusively govern inheritance disputes involving persons who profess the Muslim faith. Central to the dispute was the interpretation of Article 24(4) of the Constitution of Kenya, 2010, which provides for the application of Muslim law by the Kadhi's Courts in matters relating to personal status, marriage, divorce, and inheritance where all parties profess the Muslim religion.
The interpretation and scope of Article 24(4) formed the central issue before the Supreme Court. The Court’s determination has significant implications for the relationship between constitutional rights, Islamic personal law, and the inheritance rights of children born outside a recognised Islamic marriage, making it a landmark decision in Kenyan jurisprudence.
Article 24(4) and the Constitutional Recognition of Muslim Law
At the heart of the appeal before the Supreme Court of Kenya was the interpretation and application of Article 24(4) of the Constitution of Kenya, 2010. The appellant challenged the decisions of the superior courts on the basis that, because the deceased professed the Muslim religion, the distribution of his estate ought to have been governed exclusively by Muslim law.
In particular, the appellant contended that only children born within a marriage recognised under Islamic law were entitled to inherit the deceased’s estate. She further argued that Article 24(4) expressly permits a qualification of the constitutional right to equality and non-discrimination in matters relating to inheritance where Muslim law is applicable.
Article 24(4) provides:
“The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.”
The central question before the Supreme Court was therefore not merely whether Muslim law applies to the inheritance of a Muslim’s estate, but rather the extent to which Article 24(4) permits Muslim law to qualify the constitutional right to equality and freedom from discrimination, particularly where its application may affect the constitutional rights of children.
“Strictly Necessary”; Proportionality and the Limits of Religious Law
In interpreting Article 24(4), the Supreme Court identified a number of internal qualifiers that define the scope and limits of the provision. First, the qualification is confined to the provisions of the Bill of Rights relating to equality. Secondly, the phrase “qualified to the extent strictly necessary” demonstrates that the derogation from the right to equality is neither general nor unlimited. Thirdly, the qualification is confined to matters before the Kadhis’ Courts. These qualifiers collectively demonstrate that Article 24(4) does not create a blanket exemption from the constitutional guarantee of equality, but rather permits a limited qualification of that right within the specific circumstances contemplated by the Constitution.
The Supreme Court further examined the meaning of the phrase “qualified to the extent strictly necessary.” The Court held that this requirement introduces the principle of proportionality as the appropriate framework for determining whether a particular derogation from the right to equality is necessary and justified.
In applying the proportionality analysis, the Supreme Court relied on Kandie v Alassane BA & Another (2017) eKLR and observed that proportionality analysis in the context of adjudicating rights under the Bill of Rights involves a balancing exercise guided by the requirement that any limitation must be reasonable and justifiable. The Court therefore approached Article 24(4) on the basis that any qualification of the right to equality must be carefully assessed to determine whether it is necessary and proportionate to the purpose sought to be achieved.
Consequently, the Court examined whether excluding children born out of wedlock from benefiting from their father’s estate satisfied the proportionality test envisaged by the phrase “qualified to the extent strictly necessary.” In undertaking this assessment, the Court held that Article 24(4) must be read in harmony with other constitutional provisions, including Articles 21(3) and 53, rather than in isolation. Such an approach, the Court observed, is necessary to give effect to the Constitution’s commitment to the protection of the rights of vulnerable groups, including children.
The Child’s Right to Equality and Inheritance: Principle of best Interest
The Court further considered the principle that the best interests of the child are of paramount importance in every matter concerning a child. In this regard, the Court held that Article 53(2) constitutes an enforceable right of the child and is not merely a guiding principle for courts to consider. The Court further affirmed that the best-interests principle is a self-standing right that reinforces the broader framework of human rights guaranteed under the Bill of Rights in Chapter Four of the Constitution.
The Court emphasized that in cases concerning the welfare of children, including those involving religious laws, doctrines, teachings, rules or tenets, the paramount consideration must be the protection of the welfare and best interests of the child, having regard to the specific circumstances of each case.
Against this background, the Supreme Court held that children born out of wedlock could not be excluded from inheriting from their deceased father solely on the basis of their birth status. Such exclusion would constitute discrimination contrary to Article 27 of the Constitution and would be inconsistent with the constitutional protection afforded to children under Article 53.
When Religious and Customary Norms Meet Constitutional Limits
From the facts of the case, one may be inclined to sympathize with the appellant, not necessarily because the position she advanced was legally or morally correct, but because she appears to have expressed a belief grounded in what she had been taught, had come to understand, and had been accustomed to regard as the proper application of Muslim law.
The facts therefore reveal a broader reality of life; that practices and beliefs deeply rooted in religious and cultural instruction may, when examined against contemporary constitutional standards, be characterized as discriminatory. This creates a difficult tension between respecting religious tradition and giving effect to evolving constitutional norms.
Of particular significance is paragraph 26 of the Supreme Court’s decision, where the Court refers to the submissions of the 1st and 2nd Respondents and their reliance on CKC & another (Suing through their mother and next friend JWN) v ANC (2019) eKLR. In that case, it was observed:
“Firstly, Muslim law is a moral doctrine at whose heart lies the values of love, care, justice and kindness. Secondly, that in interpreting the Quran-inspired law, regard must be given to the Quran’s moral teaching as a whole. Thirdly, that Muslim law is dynamic and adapts to evolving social, political, cultural and economic conditions and realities, and that not all rules of inheritance are rigidly fixed for all times since the development of Muslim jurisprudence continues to be a search for the good law to be applied in differing times and situations.”
This observation is particularly instructive in understanding the significance of the present decision. It suggests that the development of Muslim law cannot be divorced from the social realities within which it operates. If Muslim law is understood as a moral doctrine founded upon values such as justice, care, kindness and love, its application must necessarily engage with changing circumstances and the legal and constitutional framework within which Muslim communities live.
The Supreme Court’s decision may therefore be understood not merely as a conflict between Muslim law and constitutional law, but as part of the continuing evolution of Muslim law within Kenya’s constitutional order. The decision does not necessarily signify the rejection of Muslim law; rather, it demonstrates how its application may develop when confronted with contemporary questions concerning equality, discrimination and the rights of children.
Reconciling Religious Autonomy with Children’s Constitutional Rights
In this sense, the case illustrates that evolution is inherent in legal and social practice. Religious and customary norms do not exist in a vacuum, but operate within changing social, cultural and constitutional environments. The Supreme Court’s decision can consequently be viewed as another stage in the continuing development of Muslim law in Kenya, one in which the constitutional recognition of Muslim personal law is maintained, while its application is examined through the lens of the Constitution and, particularly, the rights and best interests of the child.
The decision nevertheless raises a deeper constitutional tension concerning the relationship between religious law, cultural and customary practices, and the constitutional prohibition against discrimination. While Article 24(4) expressly recognizes the application of Muslim law in matters of inheritance, the Supreme Court’s interpretation makes clear that such recognition does not operate independently of the broader constitutional framework.
Where the application of a religious rule has the effect of discriminating against a child on the basis of birth, the question becomes whether such a distinction remains constitutionally permissible or whether the Constitution requires the protection of the child’s rights to prevail.
The controversy therefore lies not necessarily in whether religious or customary law should be recognized, but in determining the point at which its application becomes inconsistent with constitutionally protected rights. The Court’s decision suggests that religious freedom and personal law are constitutionally protected, but their application remains subject to constitutional standards, particularly where the rights and welfare of children are implicated.
Conclusion: Beyond Legitimacy in Kenya’s Constitutional Order
The Supreme Court’s decision in Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & 2 Others demonstrates the continuing interaction between Muslim personal law and Kenya’s constitutional framework. The recognition of Muslim law under Article 24(4) remains an important aspect of Kenya’s constitutional order, but that recognition is not unlimited. The provision itself contains internal safeguards, including the requirement that any qualification of the right to equality be strictly necessary.
The Court’s approach places particular emphasis on the constitutional rights of children, including the right to equality and non-discrimination and the right to have their best interests treated as paramount. In this context, the exclusion of children from inheritance solely because they were born outside a recognized Islamic marriage cannot be sustained where it results in discrimination contrary to the Constitution.
At the same time, the decision need not be understood as a rejection of Islamic law or religious autonomy. Rather, it illustrates the continuing development of Muslim law within Kenya’s constitutional order and the need to consider its application alongside contemporary constitutional principles.
Ultimately, the controversy lies not necessarily in whether religious or customary law should be recognized, but in determining the point at which its application becomes inconsistent with constitutionally protected rights. The Supreme Court’s decision suggests that religious freedom and personal law are constitutionally protected, but their application remains subject to constitutional standards, particularly where the rights and welfare of children are implicated. In that sense, the decision moves the discussion beyond the question of legitimacy and towards a broader constitutional inquiry into equality, religious law, and the rights and best interests of the child.
