Children born outside marriage now have legal rights to inherit from their deceased Muslim parent.
In a landmark ruling, Kenya’s Supreme Court has confirmed that children born out of wedlock can inherit from their Muslim father’s estate. The decision settles a long-running inheritance battle over the estate of Salim Juma Hakeem Kitendo, who passed away in 2015 without a written will.
The case, filed as Petition No. E035 of 2023 questioned whether Islamic law could be used to deny children born outside marriage their rightful share. At the centre was the late Kitendo’s estate, and whether all his children—regardless of their birth circumstances—deserve equal treatment under the law.
Chief Justice Martha Koome delivered the Supreme Court’s verdict, agreeing with an earlier decision by the Court of Appeal. She said the Constitution protects every child’s right to inheritance and that no law—religious or cultural—should take that away.
While Article 24(4) of the Constitution allows Muslim law in matters like inheritance, the Court noted this only applies if it doesn’t violate human rights. The phrase “to the extent strictly necessary” was emphasised, meaning any religious rule must be applied carefully and with limits.
The ruling is seen as a bold move toward equality. It challenges traditional Islamic views that often exclude children born out of wedlock, saying such practices go against Kenya’s promise of fairness for all.
Some Muslim scholars have praised the Court for upholding justice and giving guidance on balancing faith and law. Others are concerned about how this may affect religious autonomy. Many now say it’s time to have deeper discussions about how Islamic law fits into Kenya’s wider legal system.
The Court directed that Kitendo’s estate be split fairly between his two widows and all their children, including the one born out of wedlock. The High Court will now handle the finer details of who gets what.
