Issue No. 92

Kenya's Supreme Court Reconfigures Islamic Inheritance

On 30 June, Kenya's Supreme Court issued a landmark ruling affirming the inheritance rights of children born out of wedlock to Muslim fathers. Amid ongoing debates about the relationship between religion and the state in Kenyan society today, the unanimous decision has thrown down a gauntlet to traditional interpretations of Islamic inheritance law, which typically deny estate rights to out-of-wedlock children. Intended to bring such statues in line with mainstream Kenyan law and better ensure these children's rights, it has triggered uproar in the Muslim community surrounding Kenya's pluralistic legal system. How to marry the two-- the rights of the child and respect for religious pluralism-- is a taxing question, and one with no simple answer. 

The 30 June ruling on Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & 2 Others, (SC Petition No E035 of 2023) began in 2015 when two parallel succession causes—one before the Islamic Kadhi's Court and another before the High Court at Mombasa—sought distribution of the late Salim Juma Hakeem Kitendo's estate. The appellant, Fatuma Athman Abud Faraj – who had four children with the deceased – sought to exclude the children born out of wedlock from inheriting, citing Islamic law under Section 2(3) of the Law of Succession Act. The Court of Appeal had, in November 2023, ruled in favour of the children, stating that such exclusion contravened Article 27 (equality and freedom from discrimination of the Constitution). 

Upholding the Court of Appeal ruling, the Supreme Court dismissed the appeal on the grounds of Article 24(4) of the Kenyan Constitution, which states that equality provisions may be "qualified to the extent strictly necessary for the application of Muslim law", and held that this introduces a proportionality test, ensuring any deviation from Article 27 (Equality and freedom from discrimination) must be narrowly tailored, reasonable, and justified. Applying this proportionality test, the Supreme Court held that there was no compelling justification for excluding children born out of wedlock from inheriting under Islamic law. Such exclusion, the Court argued, punishes the child for circumstances beyond their control—contravening Article 53(2), which mandates that a child's best interests are of paramount importance in every matter concerning them. 

In response to the ruling, Muslim communities across the country have reacted strongly, with leading voices – including the Council of Imams and Preachers of Kenya (CIPK) – describing it as an overreach beyond constitutional bounds and an affront to Islamic legal principles. Sheikh Mohamed Khalifa, Secretary to CIPK, declared that the Court had acted "against the ways of Islam", calling the ruling "an abomination." In particular, their opposition is centred on the Surah An-Nisa (Chapter 4) in the Quran, which provides an ordered structure for succession, premised on legitimate lineage (nasab) established through valid marriage. Any infidelity or bearing children outside of these structures is regarded as deeply immoral.

Most prominently, the Muslim community's response has centred on claims that the Supreme Court disregarded the constitutional and historical role of the Kadhi courts. Such Islamic legal institutions in Kenya predate both colonial intervention and modern constitutional frameworks and have long been embedded in the socio-political fabric of Muslim communities in Kenya. Pre-colonial Swahili city-states, including Lamu, Mombasa, and Malindi, operated under sophisticated Islamic legal systems, applying fiqh (jurisprudence) to regulate commerce, family relations, and inheritance. And the legal status of these systems was formally acknowledged during the colonial era, with Britain pledging to preserve existing Islamic legal institutions after securing administrative control of the Swahili coast in the late 19th century. 

Such recognition was perhaps cynically intended to secure British interests by ensuring greater stability, but it nevertheless laid the groundwork for Kenya's legal pluralism. Post-independence negotiations, particularly the Kenya Coastal Strip Agreement in October 1963, formally integrated the Muslim-majority areas into the Kenyan state, contingent on Muslim rights protection, including constitutional guarantees for Islamic personal law. Yet over the succeeding decades, even with these guarantees, Muslim communities have experienced systematic marginalisation, including economic exclusion and the securitisation of the North Eastern region.

The status of Kadhi courts proved one of the most contentious religious debates of Kenya's 2010 Constitution – which in itself came after nearly 20 years of reform efforts aimed at addressing historical injustices and building a more inclusive nation. While Muslim communities fought to preserve the Kadhi Courts, some Christian groups opposed their inclusion, viewing it as a threat to secularism and religious equality. The Constitution ultimately upheld the Kadhi courts but placed them within a framework of constitutional supremacy. Article 170 recognises Kadhi courts as part of Kenya's legal system, on the condition that all parties are Muslim and are in agreement on going to the Kadhi courts, and allows for the limitation of certain rights under Article 24(4). In the case of conflict and help guide courts in this case, Article 20(3) explicitly states that "In applying a provision of the Bill of Rights, a court shall—(a) develop the law to the extent that it does not give effect to a right or fundamental freedom; (b) adopt the interpretation that most favours the enforcement of a right or fundamental freedom." This carefully designed system was intended to safeguard both religious autonomy and constitutional oversight.

By asserting constitutional supremacy over inheritance rules governed by Islamic law, the ruling has been perceived as undermining Kadhi courts on a consequential issue in Muslim family life. Moreover, the case has laid bare the still-contested nature of legal pluralism in Kenya, as for many Muslims, the protection of Islamic personal law functions serves as a safeguard against long-standing marginalisation and assimilationist state policies. And yet this specific ruling also provides new avenues for those born out of wedlock and cast off by their fathers to pursue legal action and secure their rightful inheritance-- potentially proving highly consequential for those painfully abandoned in the coming years. Men may think twice about their infidelities if such indiscretions could result in a hefty lawsuit. So, in theory, it may even help diminish issues of infidelity, but for Muslim communities that have long considered the state as a threat, such a ruling-- even if well-intentioned for children's rights-- is regarded as an attack on their way of life. This broader, decades-old issue of Muslims feeling divorced from the Kenyan state should not go unnoticed amidst this latest debate.

The Horn Edition Team