[2025] KESC 45 (KLR)

[2025] KESC 45 (KLR)

The Supreme Court held that Article 24(4) of the Constitution does not provide a blanket exemption from equality rights for Muslims in matters of inheritance. The derogation is limited to what is strictly necessary and must be justified by proportionality. Excluding children born out of wedlock from inheriting their deceased Muslim father's estate solely on the basis of their birth status is unreasonable, unjustifiable, and fails the proportionality test. Such exclusion is contrary to the best interests of the child as enshrined in Article 53, and to the constitutional guarantee of equality and non-discrimination under Article 27. The Court affirmed that all children, regardless of the...

Citation
[2025] KESC 45 (KLR)
Parties
Appellant: FAAF; Respondent: RFM; Respondent: JMM; Respondent: MCP
Court
Supreme Court
Court Station
Supreme Court of Kenya
Jurisdiction
Kenya
Judgment Date
30 June 2025
Case Number
Petition E035 of 2023
Procedural Posture
Constitutional Petition / Supreme Court Final Judgment
Outcome
Appeal dismissed; Court of Appeal judgment affirmed; matter remitted to High Court for distribution of estate.
Judges
MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko
Legal Topics
Inheritance Rights, Muslim Personal Law, Children Born Out of Wedlock, Equality and Non Discrimination, Succession, Best Interests of Child
Source Language
English
Constitutional Law Family and Children Inheritance Rights Muslim Personal Law Children Born Out of Wedlock Equality and Non Discrimination Succession Best Interests of Child

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Parties

FAAF

Appellant

RFM

Respondent

JMM

Respondent

MCP

Respondent

Procedural Posture

Constitutional Petition / Supreme Court Final Judgment

Legal Issues

  1. 1 Whether exclusion of children born out of wedlock from inheriting under Muslim law is compatible with the Constitution.
  2. 2 Whether Article 24(4) of the Constitution permits derogation from equality rights to exclude such children in matters of inheritance before Kadhis' Courts.
  3. 3 Whether the Court of Appeal failed to apply the mandatory provisions of Muslim law under section 2(3) of the Law of Succession Act.

Ratio Decidendi

The Supreme Court held that Article 24(4) of the Constitution does not provide a blanket exemption from equality rights for Muslims in matters of inheritance. The derogation is limited to what is strictly necessary and must be justified by proportionality. Excluding children born out of wedlock from inheriting their deceased Muslim father's estate solely on the basis of their birth status is unreasonable, unjustifiable, and fails the proportionality test. Such exclusion is contrary to the best interests of the child as enshrined in Article 53, and to the constitutional guarantee of equality and non-discrimination under Article 27. The Court affirmed that all children, regardless of the...

Court Disposition

Appeal dismissed; Court of Appeal judgment affirmed; matter remitted to High Court for distribution of estate.

Orders

  • The appeal dated December 14, 2023 is dismissed.
  • The judgment of the Court of Appeal delivered on November 10, 2023 is affirmed, specifically that the children of the appellant and the 1st and 3rd respondents are beneficiaries of the deceased's estate.