Authored By: LYNCY TONIQUE OYUGA
Daystar University
Case Title: FAAF v RFM & 2 OTHERS
Citation: [2025] KESC 45 (KLR)
Court: Supreme Court of Kenya
Judges: MK Koome, PM Mwilu, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola, W Ouko
Date of Judgement: 30 June 2025
Parties: –
Appellant – FAAF
1st Respondent – RFM
2nd Respondent – JMM
3rd Respondent – MCP
INTRODUCTION
The case of FAAF v RFM[1] which was decided in 2025, embodies the issue of Constitutional interpretation of limitation of rights that are not absolute and affect the daily lives of individuals. Specially it deals with the issue of inheritance which is mostly governed by cultural and religious laws. The Muslim law on inheritance which does not allow children born out of wedlock to inherit of their Muslim parents even thought the Constitution and the Law of Succession Act[2] affirms otherwise. The court should therefore determine to what extent can the rights of a child to inherit be limited or whether the Muslim law is absolute since inheritance is a personal matter.
FACTS OF THE CASE.
The Appellant and 1st Respondent in this case were wives to the deceased (SJHK) who died intestate and was of the Muslim faith. The contention arose when letters of administration were sought by the appellant through the succession proceedings before the Khadi’s Court in Mombasa. The appellant in that application had named herself and her four children as the only beneficiaries to the estate having solemnized her marriage to the deceased under Islamic law on August 4, 2006. The 1st Respondent and the 2nd Respondent who is her sister also filed succession proceedings in the High Court stating that the 1st Respondent had cohabited with the deceased since 2000 and were blessed with four children. The question presented in this case lies at the intersection of equality and religious pluralism in a community that champions diversity such as in the Kenyan context. The appellant was contesting that the children to the 1st respondent; SJ born in 1998, LK in 2003, HK in 2006 and TK in 2007 were not entitled to benefit from the estate of the deceased since they were born out of a marriage institution and according to the Sharia Law they are not recognized as heirs and therefore should not benefit from the deceased estate.
The 1st Respondent had cohabited with the deceased since the year 2000 and therefore it was implied that three of the children birthed within the said period were his. SJ who was born before the cohabitation period started could not inherit as per the appellants allegation since he was not the biological child of the deceased. The Constitutional protection of the rights of a child and respect accorded to personal law applying to the Muslim believers were seemingly in contention and therefore raised a question of interpretation of the Constitution on both ends.
The dispute was about the right of children to inherit under the Muslim Law as the Law of Succession Act recognized the Sharia Law in governance of matters inheritance. The rights of the child were however being put in jeopardy by the perceived sins of the parents. Therefore, was it sufficient for the child to suffer harm on the basis of limitation of rights of the child and protection of personal beliefs?
Procedural History.
At the High Court, it was ordered that the appellant and the 1st Respondent are widows to the deceased and are therefore entitled to the share of the Estate in line with the Sharia law. The court also ordered for a DNA test to be conducted to affirm that the 1st Respondents and 3rd Respondent’s children were biological children of the deceased.
The Court of Appeal partly allowed the appeal to the extent of the order requiring a DNA test to be taken. The court stated that there was clear and undisputed evidence that the three children of the 1st Respondent were born during the time of cohabitation with the deceased and further that the deceased treated them as his children during his lifetime and therefore they were entitled to benefit from the Estate as dependents.
The Supreme Court upheld the orders of the Court of Appeal in finding that the four children to the appellant, the Respondents children who were born during cohabitation with the deceased; LK, HK & TK and the 3rd Respondents child HM are beneficiaries and/or dependents to the deceased estate. The letters of administration were therefore to be issued jointly to the appellant and the 1st Respondent. The appeal was thereby dismissed.
LEGAL ISSUES.
- Whether the limitation of children born out of wedlock by parents in the Muslim faith to inherit is proportionate according to Art 24(4) of the Constitution of Kenya or discriminatory according to Art 27 of the Constitution.
- Whether the application of the Muslim law in matters of inheritance as provided for under section 2(3) of the Law of Succession Act is absolute and mandatory.
ARGUMENTS PRESENTED
Arguments of the Appellant (FAAF)
The Appellant argued that the right of equality and freedom from discrimination was not absolute and is limited by virtue of Art 24(4) of the Constitution to the extent strictly necessary to the persons professing the Muslim faith hence subjected to Sharia Law. This being applicable in matters relating to personal status, marriage divorce and inheritance as is also recognized under Art 170.
She further averred that the Court of Appeal in entering its judgement erred in interpretation of the Constitution by deciding that the 1st Respondents children were entitled to benefit from the deceased estate. It was her position that this amounted to the court rewriting or attempting to amend the Constitution as it subjected the interpretation of Article 24(4) to a repugnancy yardstick which the Constitution did not impose and disregarded the guidelines prescribed under Art 259 of the Constitution.
It was further her position that the Court of Appeal failed to apply Muslim law to her as is required by section 2(3) of the Law of Succession Act. Under Islamic Law there is no classification of heirs known as dependants and this being an import of the Law of Succession Act should not be applied in this particular case since the law applicable should be in accordance to Quranic principles. The Appellant citing the case of S v Makwanyane[3] affirmed her position that the limitation was reasonable and justifiable as the matter relates to the inheritance of a deceased Muslim which has to be determined in line with the Islamic principles.
Argument of the 1st & 2nd Respondents
The Respondents in this case centered their argument on the fact that Muslim Law is moral law and is therefore governed by values such as love, care, justice and kindness. They further stated that it is dynamic and adapts to evolving social, political, cultural and economic conditions and realities therefore, the law on inheritance as is stipulated is not cast on stone and should not be treated as static. They further made reference to the case of CKC & another (Suing through their mother and next friend JWN) v ANC[4] to reiterate their position that children born out of wedlock are entitled to benefit from the estate of their deceased Muslim parent.
Additionally, they relied on the guidelines provided in various International laws such as the UN Convention on the Rights of a Child and the African Charter on the Rights and Welfare of a Child to assert and buttress their position.[5] They agreed with the conclusion the trial court and the court of appeal had come to as it was progressive finding regarding the matter on the Rights of children to inherit the estate of their Muslim parent. Therefore, they sought for dismissal of the appeal before the Supreme Court.
COURTS REASONING AND ANALYSIS.
The Supreme Court on the first issue took a holistic approach towards the interpretation of article 24(4) of the Constitution. They opined that, even though the Constitutional making process took an angle of preservation of the autonomy of Muslim personal laws in specified domains, it is exercised within certain parameters. Further, it was highlighted that Art 24(4) had internal qualifiers to demarcate the scope and boundaries of the application of the provision. First, it is limited to the provisions of the Bill of Rights in equality, it must be qualified to the extent strictly necessary, thirdly it applies to matters before the Khadi’s court and lastly, it is only applicable to persons who profess the Muslim faith.
The court sought to determine what entails the interpretation of the phrase “to the extent strictly necessary”. The court persuasively relied on the journal article by Prof Murray[6] who suggested that; the qualification of strictly necessary is to be interpreted to mean that no greater invasion to the right of equality will be permitted without the limitation being necessary, reasonable and proportionate to meet the goals. Therefore, the provision should not be used as a blank check to override the right to equality and the freedom from discrimination. They further relied on authorities from other jurisdictions including Botswana where they borrowed from the case of Ramantele v Mmusi (2013) where the Court of Appeal of Botswana applied itself thus: “Where there is a derogation from a freedom under the Bill of Rights, the Court must scrutinize it and test whether such derogation is necessary and justifiable.” [7]
The principle of the best interest of the court was also considered and the bench asserted that Art 53(2) of the Constitution is not merely a guiding principle but also constitutes an enforceable right of a child. The African Court on the Rights to Human and Peoples Right has also deliberated on the same issue where Mali’s New Family Code under article 751 violated the right to inheritance.[8] The Court held that the impugned provisions were discriminatory and violated article 4 of the African Charter on the Rights which upholds the principle of the best interest of a child.
The Supreme Court on this issue upheld the decision of the Court of Appeal that ordered for the 1st Respondents children to be included as beneficiaries to the estate of the deceased.
On the second issue, the Supreme Court also dismissed the appeal based on that limb as it stated that all laws including customary and religious rights must be interpreted in light to the Bill of Rights
The Court upheld the decision of the lower courts and granted orders for grant of joint letters of administration as the both the children of the appellant and the 1st respondent were beneficiaries. Therefore, upholding the right of inheritance for children born out of wedlock.
Significance of the decision.
The decision finally lay to rest the issue on the right to inherit for children born out of wedlock to Muslim parents. It further laid down the principle of interpretation of the Constitution in instances where the rights to equality and other fundamental rights may be limited and the principle behind the phrase ‘to the extent strictly necessary’ as is laid down under Art 24 of the Constitution of Kenya.
This decision aligned with the International laws and decisions pronounced in regional courts such as the African Court on People’s and Human Rights.
Implications and Impact.
This decision serves as a win for advocates of Human Rights since the protection of rights of children is pertinent an should not be taken merely as a guiding principle but a right that can actually be enforced. It also lays down and upholds the principle of Constitutional Supremacy such that any law whether cultural or religious must be confined within the precincts on the Constitution and the value embodied therein. This shows a societal shift that allows children and women to be viewed as humans deserving of equal rights hence serving as a step forward in building the world community that allows everyone to thrive.
CONCLUSION
The rights of a child are paramount and should not be taken as a suggestion but rather as a core right which the judiciary should strive to protect. Children form the society not just in the present but also in the future, therefore, allowing them to enjoy the basic needs and rights enables them form a perception of the society and the values they need to uphold. It is true that it takes a village to bring up a child and it is through such issues that the judiciary chips in to play their part and contribute towards raising a child.
In recognizing these rights, the court is not just training up a child in the way they should go but also keeping the spirit and tenure of the Constitution alive and ensuring that it lives on to survive their time as the children take up from them.
REFERENCE(S)
African Charter on the Rights and Welfare of a Child 1990
Association pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and another v Mali (Application No 046/2016) [2018] AfCHPR 9
Christina Murray, ‘Kenya’s 2010 Constitution’ [2013] Neue Folge Band Jahrbuch des öffentlichen Rechts; Volume 61 Issue 1 pp 747-788
CKC & CC (Suing through their mother and next friend JWN) v ANC KECA 354 (KLR)
Code of Persons and the Family of Mali, 2011 (Law No 2011-087)
Constitution of Botswana 1966
Constitution of Kenya 2010
FAAF V RFM & 2 OTHERS [2025] KESC 45 (KLR)
Law of Succession Act 2022
Ramantele v Mmusi and Others [2013] BWCA 1;
S v Makwanyane & Another (CCT 3/94) [1995] ZACC 3
UN Convention of the Rights of a Child 1989
[1] FAAF V RFM & 2 OTHERS [2025] KESC 45 (KLR)
[2] Law of Succession Act 2022; Constitution of Kenya 2010
[3] S v Makwanyane & Another (CCT 3/94) [1995] ZACC 3
[4] CKC & CC (Suing through their mother and next friend JWN) v ANC, KECA 354 (KLR)
[5] UN Convention of the Rights of a Child 1989; Art 4 African Charter on the Rights and Welfare of a Child 1990
[6]Christina Murray, ‘Kenya’s 2010 Constitution’ [2013] Neue Folge Band Jahrbuch des öffentlichen Rechts; Volume 61 Issue 1 pp 747-788
[7] Ramantele v Mmusi and Others [2013] BWCA 1; s15(4)(c) Constitution of Botswana 1966
[8]Association pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and another v Mali (Application No 046/2016) [2018] AfCHPR 9; Code of Persons and the Family of Mali, 2011 (Law No 2011-087)
