Authored By: Gibran Akidah Wanje
University of Nairobi
Case Name: Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & 2 Others
Citation: [2025] KESC 48 (KLR)
Supreme Court of Kenya
Petition NO. E035 OF 2023
Bench: Koome; CJ & P, Mwilu; DCJ & VP, Ibrahim, Wanjala, Njoki, Lenaola & Ouko, SCJJ
Date of Judgement: 30 June 2025
- Background and Facts of the Case
The dispute centered on the succession of the estate of Salim Juma Kitendo, a Muslim who died intestate. Three Women claimed to be the deceased’s wives seeking for the recognition of their children as beneficiaries. The appellant, Fatuma Faraj, contracted an Islamic marriage with the deceased, a union from which four children were born. The deceased then started cohabitation with the first respondent, Ruth Mwawasi, during which they sired three children. Notably, the respondent already had a child who was not the deceased’s biological issue. Following the birth of their 3 children, the first respondent and the deceased solemnized their union under Islamic law following the respondent’s conversion to Islam. Salim then cohabited with the third respondent, Marlin Pownall, with whom they had a son with after celebrating an Islamic marriage.[1]
Following the deceased’s demise, a dispute arose regarding whether the first and third respondents, and their respective children were entitled to inherit from the deceased under Islamic law. The appellant contended that the first and third respondent’s children were all born prior to the celebration of their respective Islamic marriages. Consequently, she argued they were illegitimate under Islamic law having being born outside wedlock.[2] She also challenged the validity of the subsequent marriages of both the 1st and 3rd respondent. Regarding the first respondent, it was due to discrepancies between the names appearing on the conversion certificate and marriage certificate.[3] Regarding the 3rd respondent, she argued nullity due to a subsisting civil marriage.[4] On these grounds, she sought the exclusion of the respondents and their children from inheriting from the deceased’s estate.
The High Court ruled in favor of the 1st respondent, her biological children with the deceased, and the 3rd respondent’s son. The Court found no rational basis [5]for distinguishing between children born in or out of wedlock for inheritance under Islamic law. This was subsequently upheld by the Court of Appeal which only quashed the orders for DNA tests for the children, citing prevalence of dependency [6] over paternity.
- Salient Constitutional and Legal Issues
The core issue for determination was whether children born outside wedlock could inherit from their Muslim father, reflected in question number 1. The key Issues were:
- Whether the Court of Appeal improperly limited the application of Article 24(4) of the Constitution, thereby misconstruing its relationship with Article 27.
- Whether the Court of Appeal failed to give effect to the mandatory application of Muslim law as provided under Section 2(3) of the Law of Succession Act.[7]
- Arguments by Both Sides
Appellant (Faraj)
First, she contended that Article 27 of the Constitution on equality and non-discrimination is not absolute but subject to limitation under Article 24(4) for operation of Muslim law. Citing S Vs Makwanyane[8], she maintained that such limitations are reasonable and justifiable to ensure Muslim inheritance aligns to Quranic Principles.
Second, she argued that the Court of Appeal limitation of Article 24(4) is an attempt to rewrite the constitution by imposing a limitation that the constitution itself does not impose. Citing Re Wakim,[9] she asserts that the court does not have the power to amend the constitution to reflect its perception of public interest.[10]
Third, she contended that the court failed to apply Muslim law to her case as required by Section 2(3) of the Law of succession.
First and second respondents (Ruth Mwawasi and her sister)
They contended that Muslim law is a moral doctrine which must be interpreted through the Quran’s overarching teachings of kindness, love and care. Its application must also evolve to apply justifiably beyond fixed rigid rules. Further, they invoked the best interests of the Child principle anchored in international instruments including the UN convention on the rights of the Child[11] and principally in Kenya under Article 53 of the constitution which sets the child’s interest as the paramount consideration[12] in any matter concerning them. Therefore, they argue that the court arrived at a progressive decision in prioritizing child welfare.
Notably, the 3rd respondent did not appear and no submissions were filed by her or for her.
- Court’s Rationale and Analysis
Issue 1 (Main Issue)
To the extent strictly necessary
The court examined Article 24(4) and by focusing on the words “to the extent strictly necessary” determined that any deviation from the equality principles must be narrowly tailored[13] and justified through a proportionality test to permit no greater invasion of the right to equality.[14] The court also considered parallel provisions of Article 24(4) which spoke on the qualification of “to the extent strictly necessary” such as that in Section 15(4) of the Botswana Constitution. The Botswana Court of Appeal in Ramantele Vs Mmusi[15] utilized this threshold to struck down discriminatory customary laws. In adopting this comparative approach, the court reinforced that the standard serves to prevent disproportionate erosion of equality rights.
Proportionality
Applying the proportionality test as set out in Kandie Vs Alassane,[16] it evaluated whether the measure is suitable with no less restrictive means to achieve the same, proving necessity, and whether the benefits outweigh the consequential harm. It is through this test that the court agreed that excluding children born out of wedlock from benefitting from their father’s estate fails the proportionality check as envisaged by the wording “qualified to the extent strictly necessary”.[17]
Harmonious construction of Constitutional provisions
The court further deliberated reading together of Article 24(4) harmoniously with other provisions by drawing on the interpretative mandates of Articles 20 (3) and (4) and 259 (1) .These provide for courts to interpret the constitution particularly the Bill of Rights in a way that promote, advances and develop the law in line with the values of equality, equity and human dignity,[18] also an obligation to construe the constitution to in a manner that advances its purposes, values, human rights and the rule of law[19].
Best Interests of the Child
Central to this reasoning was the best interests of the child principle under Article 53(2) with the Court emphasizing that child welfare must prevail over any contrary religious laws which will infringe their rights. Citing CMM & 6 others Vs Standard Group[20], they recognized the principle as an enforceable right not merely a guiding principle. The court referenced of APDF v Mali (2018) AfCHPR 9[21], where the African Court on Human and Peoples’ Rights found similar Islamic inheritance laws in the Mali Family Code were discriminatory and violated children rights to inherit.
It is on these reasons that the court affirmed the court of appeals limitation of Article 24(4) and effectuation of Article 27 in finding that the children were entitled to inherit.
Issue 2
The court reasoned that the Court acknowledged that the deceased was a Muslim and that Islamic law was applicable. However, it affirmed the court’s interpretation in a manner that harmonized it with the values and rights enshrined in the Bill of Rights. This aligned with constitutional protections thus recognizing them as dependents as it would not be proportionate to deny children inheritance due to their parents’ marital status[22]. It was a necessary interpretation to reconcile Islamic law with constitutional provisions as illustrated in issue one, harmonizing it with other laws. It is on that ground that the court dismissed that limb of appeal.
- Holding
The Supreme Court dismissed the appeal and gave the following orders:
Affirmation of the court of appeal decision: finding that the children of the appellant as well as three of the First respondent’s and the 3rd respondents are beneficiaries and or dependents of the deceased’s estate.
Grant of Representation: Letters of administration to be issued jointly to the appellant and 1st respondent.
Remittal: The matter to be remitted to the High Court of Mombasa for determination of respective entitlements.[23]
- Significance and impact of the decision.
Best Interests of the Child: Reaffirmed the principle in succession and inheritance[24], that child welfare is paramount and prevails over detrimental religious norms or laws.
Non-discrimination in inheritance: In finding that barring children born out of wedlock from inheriting to be discriminatory as it is not reasonable to deny them their right on the basis of the alleged “sins” of their parents.[25]
Religious pluralism v Constitutional Supremacy: Muslim law though recognized under the constitution, it must align with constitutional guarantees under the bill of rights[26] thus the limitation of Article 24(4) from broad application.
Dependency over Paternity: Prioritization of proven dependency over strict paternity for qualification as a beneficiary in intestate inheritance, seen in the waiving of the required DNA tests.
While the ruling was a landmark decision, Muslim scholars and traditionalists argue that it compromises Islamic jurisprudence of prioritizing legitimate heirs, and that it signifies judicial outreach potentially undermining religious autonomy and operations of Article 24(4).[27] Conversely, the decision could be viewed in the positive light of balancing religious norms with constitutional imperatives. Ultimately, the judgement underscores the subsisting tension between cultural and religious traditions and universal rights.
- Conclusion
In conclusion the ruling affirmed that children born outside wedlock can inherit from their Muslim father’s estate. With constitutional equality and child welfare protection prevailing over the strict Islamic inheritance law. The decision clarified the operation of Article 24(4) not to allow broad exemptions for greater invasion of equality and that all pluralistic law must align with constitutional values which judicial officers must advance and promote in making decisions.
Bibliography
Table of Cases
Kenya
CMM (Suing as the Next Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others KESC 68 (KLR) (8 September 2023)
Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & 2 others [2025] KESC 61 (SCK)
Kandie v Alassane BA and Another [2017] KESC 13 (KLR)
Other Jurisdictions
Association pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and Another v Mali (Judgment) App No 046/2016 (11 May 2018)
Ramantele v Mmusi and Others [2013] BWCA 1
Re Wakim; Ex parte McNally (1999) 198 CLR 511
S v Makwanyane and Another [1995] ZACC 3, 1995 (3) SA 391
Table of Legislations
Kenya
Children Act 2022
Constitution of Kenya 2010
Marriage Act 2014
International Instruments
Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3
Secondary Sources
‘Client Alert: The Supreme Court of Kenya Affirms Equal Inheritance Rights for Children Born Out of Wedlock Under Muslim Law’ (CM Advocates, 5 July 2025) cmadvocates.com accessed 15 February 2026
‘Legal Digest: Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & Others’ (Legal Express Kenya, 30 June 2025) https://legalexpresskenya.com accessed 15 February 2026
Jadeed MA, ‘Developments in Islamic Family Law: Implications for Gender Equality and Freedom of Religion in Kenya’ EALJ
kmk, ‘Children born out of wedlock can inherit from their Muslim father’s estate under Islamic law: Supreme Court of Kenya’ (KMK Africa Advocates LLP, 5 July 2025) https://kmkadvocates.co.ke accessed 15 February 2026
Murray C, ‘Kenya’s 2010 Constitution’ (2013) 61 Jahrbuch des öffentlichen Rechts 761
Mwikali S, ‘Supreme Court Affirms Inheritance Rights of Children Born Out of Wedlock in Muslim Succession Cases’ (Prof Tom Ojienda & Associates, 8 August 2025) www.proftomojiendaandassociates.com accessed 18 February 2026
Supreme Court of Kenya, ‘Media Summary: Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & Others, SC Petition No. E035 of 2023’ (30 June 2025) supremecourt.judiciary.go.ke accessed 15 February 2026
[1] Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & 2 others [2025] KESC 61 (SCK).
[2] Supreme Court of Kenya, ‘Media Summary: Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & Others, SC Petition No. E035 of 2023’ (30 June 2025) https://supremecourt.judiciary.go.ke/wp-content/plugins/download-attachments/includes/download.php?id=5753 accessed [15 February 2026]
[3] Legal Digest: Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & Others’ (Legal Express Kenya, 30 June 2025) legalexpresskenya.com accessed [15 February 2026].
[4] Marriage Act 2014, s 9
[5] kmk, ‘Children born out of wedlock can inherit from their Muslim father’s estate under Islamic law: Supreme Court of Kenya’ (KMK Africa Advocates LLP, 5 July 2025) kmkadvocates.co.ke accessed [15 February 2026].
[6] ‘Legal Digest: Fatuma Athman Abud Faraj’ (n 3)
[7] Faraj (n 1) [29]
[8] S v Makwanyane and Another [1995] ZACC 3, 1995 (3) SA 391
[9] Re Wakim; Ex parte McNally (1999) 198 CLR 511
[10] Faraj (n 1) [23]
[11] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 art 3
[12] Constitution of Kenya 2010, art 53(2)
[13] Media Summary: Faraj v Mwawasi (n 2)
[14] Christina Murray, ‘Kenya’s 2010 Constitution’ (2013) 61 Jahrbuch des öffentlichen Rechts 761, 761–762.
[15] Ramantele v Mmusi and Others [2013] BWCA 1.
[16] Kandie v Alassane BA and Another [2017] KESC 13 (KLR)
[17] Sheila Mwikali, ‘Supreme Court Affirms Inheritance Rights of Children Born Out of Wedlock in Muslim Succession Cases’ (Prof Tom Ojienda & Associates, 8 August 2025) https://www.proftomojiendaandassociates.com/a-landmark-in-kenyas-family-and-succession-law/ accessed 18 February 2026.
[18] Media Summary: Faraj v Mwawasi (n 2)
[19] Constitution of Kenya 2010, art 10
[20] CMM (Suing as the Next Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others [2023] KESC 68 (KLR) (8 September 2023)
[21] Association pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and Another v Mali (Judgment) App No 046/2016 (11 May 2018).
[22] ‘Client Alert: The Supreme Court of Kenya Affirms Equal Inheritance Rights for Children Born Out of Wedlock Under Muslim Law’ (CM Advocates, 5 July 2025) https://cmadvocates.com/blog/client-alert-the-supreme-court-of-kenya-affirms-equal-inheritance-rights-for-children-born-out-of-wedlock-under-muslim-law/ accessed [15 February 2026].
[23] Faraj (n 1) [67]
[24] Children Act 2022, s 17
[25] ‘Client Alert’ (n 19)
[26] Mwikali (n 17)
[27] Moza Ally Jadeed, ‘Developments in Islamic Family Law: Implications for Gender Equality and Freedom of Religion in Kenya’ [2025] EALJ
