the Supreme Court of Kenya Decision on Children born out of Wedlock

Judgement of the Supreme Court of Kenya in the Case of FAAF v RFM & 2 others (Petition E035 of 2023) [2025] KESC 45 (KLR) delivered on 30th June, 2025

Republic of Kenya

In the Supreme Court of Kenya

Petition E035 of 2023

(MK Koome, CJ & P, PM Mwilu, DCJ & VP, MK Ibrahim, SC Wanjala, N Ndungu, I Lenaola & W Ouko, SCJJ)

June 30, 2025

Introduction

This Case had a long history of Litigation in Court for a decade. It started all the way from the Kadhi Court, High Court, Court of Appeal and finally at the Supreme Court.  The main issue in this case was; whether children born out of wedlock could inherit from their deceased Muslim father’s estate, an issue traditionally barred by Islamic law.

Facts of the Case

Salim Juma Hakeem Kitendo alias SJHK (the deceased),passed away on the February 23, 2015 in Tanzania.The Deceased left behind Assets comprising of (particulars withheld): 

A petrol station in Diani, plot no xxxx–Diani, Plot no xx/xxx/MN-Kilifi, Lorry registration. No xxxS-Mitsubishi Fuso, Barclays Bank Account, Blue Jay Barclays Account, Cooperative Bank Account and Imperial Bank Account, particulars of whereof they gave.

Having died intestate, on May 20, 2015, the appellant filed succession proceedings before the Kadhi’s Court in Mombasa being Succession Cause No. 92 of 2015 seeking distribution of the deceased’s Estate under Islamic law. In that regard, she named herself and her four children as the only heirs/beneficiaries to the said Estate. 

At the same time on May 22, 2015 the 1st and 2nd respondents herein, in their capacities as wife and sister-in-law respectively, petitioned for a grant of Letters of Administration Intestate of his estate in Mombasa High Court Petition No 200 of 2015. They listed the deceased’s dependants as RFM (wife), S (son-minor), L (daughter-minor), H (son-minor) and T (son-minor) Upon realizing that the there was a petition filed before the High Court by the 1st and 2nd respondents, the appellant lodged an objection dated July 9, 2015 opposing the making of a grant to the 1st and 2nd respondents on grounds that they were not beneficiaries to the estate. Subsequently, on 22nd September, the appellant filed an answer to the petition for grant and petition by way of cross- petition for a grant in opposition to the 1st and 2nd respondent’s petition.

The High Court matter and the Kadhi’s Court one were eventually consolidated under the High Court Cause. The 3rd respondent herein was joined as an interested party before the trial court.

Litigation History

At the High Court (Trial Court)

At the High Court, the appellant contended that she was the lawful wife to the deceased, having been married vide Islamic law and they were blessed with four children who were the rightful heirs of the deceased’s estate. Further, she stated that the 1st respondent’s children were not heirs to the estate of the deceased since they were born before the deceased officiated his alleged marriage with the 1st respondent and under Islamic law, illegitimate children could not inherit the estate of their father.

The 1st respondent’s case was that she was the widow to the deceased and were blessed with four issues. They solemnized an Islamic marriage and duly issued with a marriage certificate. 

The 3rd respondent’s case was that she was the deceased’s third wife and that they solemnized their marriage before the Kadhi and were blessed with one issue; that she was previously married to a foreigner and that the law allowed her to remarry after seven years of disappearance of her husband.

Holding

In his judgement, the learned Judge of the High Court identified the issues for determination as: the applicable law pertaining to the estate of the deceased; the widows to the deceased; the bona fide beneficiaries of the estate of the deceased; the deceased’s dependants and their rights; the assets of the deceased’s estate; outstanding liabilities of the estate; and distribution of the estate.

The High Court(Trial Court) issued among other orders: a declaration that the appellant and the 1st respondent were widows of the deceased and therefore beneficiaries of the deceased’s estate; that the 3rd respondent’s marriage to the deceased was void for lack of capacity to get married to the deceased and therefore not a beneficiary; the children of the appellant born within wedlock were heirs hence beneficiaries to the estate and that the fate of the three children sired by the 1st  respondent and the 3rd respondent whose paternity was in dispute shall be subjected to a DNA test. Aggrieved, the appellant preferred an Appeal to the Court of Appeal while the 3rd Respondent preferred a cross-appeal

At the Court of Appeal

Being aggrieved by the Decision of the Trial Court, the Appellant, lodged an Appeal to the Court of Appeal at Mombasa being, FAAF v RFM & 2 others (Civil Appeal E043 of 2022) [2023] KECA 1322 (KLR).

At the Court of appeal, the appellant argued that under Muslim law, children born out of wedlock were not entitled to inherit from their deceased father’s estate. The appellant, in making that point, contended that the trial court erred by failing to apply that rule of succession as required under the Law of Succession Act and relevant Islamic principles.

On her part the 3rd respondent’s cross-appeal challenged the learned Judge’s finding that the 3rd respondent’s marriage with the deceased was null and void for want of capacity and for finding that the 3rd respondent was not a widow of the deceased and therefore not a beneficiary to the deceased’s estate; and that he further erred in directing that the 3rd respondent’s and the 1st and 2nd respondents’ children be subjected to DNA test and the samples compared with the samples from the appellant’s children to establish paternity.

Holding

Being a first appeal, the court was mindful of its duty to reconsider the evidence, evaluate it and draw its own conclusion of facts and law.

In a judgment dated 10th November, 2023, the Court framed a number of issues for determination before it, one of them being; whether excluding children born out of wedlock from benefitting from the estate of their deceased father under Islamic Law amounted to unfair and unjustified discrimination.

The Court of Appeal, upheld the trial court’s decision on that issue.  It held that article 27 of the Constitution prohibited the State from discriminating against any person, directly or indirectly, on any ground. The Court of Appeal reasoned that denying children born out of wedlock the right to inherit, while allowing those born within a marriage to benefit, would constitute unjustifiable and unfair discrimination. It emphasized that the rights of children must be assessed independently from the legal status of their parents’ union and the best interest of a child should always be of paramount consideration. It also held that children born of relationships not formally recognized as marriages, including those involving one partner already in a monogamous marriage, should not be denied their entitlements from the deceased’s estate due to the circumstances of their birth.

Ultimately, the Court of Appeal allowed the appeal to the extent that it set aside the High Court’s order for DNA testing of the 1st and 3rd respondents’ children, and substituted the same with an order that the 1st respondent’s children (save for SJ) as well as the 3rd respondent’s son are entitled to benefit from the deceased’s Estate. The court further remitted the matter back to the High Court for the determination of the respective entitlements of the beneficiaries of the deceased’s Estate.

At the Supreme Court of Kenya

Aggrieved by the Court of Appeal decision, the appellant filed an appeal to the Supreme Court where she contended that in arriving at its decision, the Court of Appeal disregarded the tenor, and constitutional significance of article 24(4) of the Constitution. She contended that the Court of Appeal erred in failing to apply the Muslim law of inheritance which was the personal law of the deceased as required under section 2(3) of the Law of Succession Act.

The appellant, appearing for herself at the hearing of the appeal, adopted the written submissions dated 14th December, 2023 and went on to make oral highlights. She asserted that the right to equality and freedom from discrimination as enshrined under article 27 of the Constitution is not absolute. Rather, it is limited by virtue of article 24(4) to the extent strictly necessary for the application of Muslim law to persons who profess the Muslim religion in matters relating to personal status, marriage, divorce and inheritance. she argued that such limitation is reasonable and justifiable as it relates to the inheritance of a deceased Muslim which has to be in accordance with Quranic principles.

Furthermore, and citing the Principles of Mohammedan Law by Dr (Mrs) Nishi Patel 1995 CTS Publication Cap XIII, the appellant asserted that children who were not born in a lawful Islamic marriage have no right to inherit from their biological father.

In opposing the appeal, the 1st and 2nd respondents reiterated and maintained their position in the superior courts. Making reference to CKC & another (Suing through their mother and next friend JWN) v ANC [2019] KECA 354 (KLR), the respondents urged that the Court of Appeal therein found that children born out of wedlock are entitled to inherit from the Estate of their late Muslim father.

The 3rd respondent neither appeared in person nor was she represented in the appeal before this Court despite having been served. Equally, no submissions were filed by her or on her behalf.

Holding

The Court framed four issues for determination before it being: whether this court has jurisdiction to entertain the appeal; Whether the Court of Appeal improperly limited the application of article 24(4) of the Constitution, and in doing so, misconstrued the relationship between articles 24(4) and 27 of the Constitution; 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; and What orders should issue?

In determining the Appeal, the Supreme Court issued among other orders that: The appeal dated December 14, 2023 and filed on December 18, 2023 is hereby dismissed; The Judgment of the Court of Appeal delivered on November 10, 2023 is hereby affirmed and specifically the finding that the children of the appellant as well as the 1st and 3rd respondents are beneficiaries and/or dependants of the Estate of the deceased. For clarity, this refers to all of the appellant’s four children; three of the 1st respondent’s children, that is, LK, HK and TK; and the 3rd respondent’s son, HM.

The Supreme court held that denying these children the right to inherit would violate the constitutional guarantees of equality (Article 27) and the protection of a child’s best interests (Article 53).

Conclusion

It is apparent that Children born out of wedlock have a rightful claim to inherit from their deceased Muslim Father’s Estate. The Landmark judgment overturned traditional Islamic succession practices in Kenya that excluded illegitimate children from inheritance, ensuring that all children fathered by the deceased are considered rightful beneficiaries or dependants.

It also affirms the fact that the best interests of a Child should always be prioritized as provided under Article 53 of the Constitution of Kenya and the Children’s Act.