In a landmark judgment, the Supreme Court of Kenya has ruled that children born out of wedlock are entitled to inherit from their deceased father’s estate, even in cases governed by Islamic law. The ruling marks a significant step toward reinforcing equality and non-discrimination within Kenya’s legal framework.
The case at the heart of the ruling involved a dispute over whether children born outside of marriage could be excluded from inheriting under Islamic inheritance laws. Traditionally, some interpretations of Muslim law have denied such children inheritance rights, raising concerns about conflict with the Kenyan Constitution.
The Court focused on Article 24(4) of the Constitution, which permits the application of Islamic law in matters of personal status, such as marriage, divorce, and inheritance, but only when “strictly necessary.” In its decision, the Court emphasized that this provision should not be interpreted to create blanket exemptions from the broader constitutional guarantees of equality and dignity.
According to the judges, any limitation on constitutional rights must be fair, reasonable, and absolutely necessary. They found that denying a child inheritance rights based solely on the circumstances of their birth fails this test. The Court cited Article 27 of the Constitution, which assures all Kenyans equal protection and benefit under the law, regardless of their background.
By declaring the exclusion of children born out of wedlock as discriminatory, the Court sent a strong message that all children must be treated equally. The judgment clarified that while Kenya recognizes religious freedom and personal law systems, these cannot be used to override fundamental constitutional rights.
The ruling also establishes a precedent that religious or customary laws must align with constitutional principles, especially on matters affecting vulnerable groups like children. This reinforces the idea that personal status laws must evolve to reflect Kenya’s commitment to equality, human rights, and social justice.
Legal experts have described the judgment as a watershed moment that will likely influence how courts address similar disputes in the future. Human rights advocates have praised the decision, noting that it provides much-needed legal clarity and protection for children who have often faced exclusion, stigma, or legal hurdles in matters of inheritance.
The decision affirms that no child should suffer discrimination because of their parent’s marital status. It sends a broader message that equality before the law is a fundamental principle that applies to all Kenyans regardless of faith, background, or the circumstances of their birth.