Want to collaborate or support access to justice?
Contact UsWant to collaborate or support access to justice?
Contact Us
Read this story on Esheria.
Introduction
Kenya’s Supreme Court has sent a powerful message: no child should be disinherited or stigmatized because of the marital choices of their parents. In the landmark Fatuma Athman Abud Faraj case, the Court affirmed that children born out of wedlock – including those in Muslim families – have equal inheritance rights. The ruling has stirred debate among some Muslim religious commentators,politicians, lawyers and Muslim interest groups. That said, the decision stands as a victory for children’s rights, constitutional equality, and human dignity. By rejecting archaic labels like “illegitimate” and “bastard,” the Court reinforced a simple truth: every child is born with equal worth under the law.
Best Interests of the Child is an absolute right
From the moment Kenya adopted its new Constitution in 2010, it enshrined a crystal-clear principle: “A child’s best interests are of paramount importance in every matter concerning the child.” Article 53(2) of the Constitution leaves no wiggle room. This mirrors international law – the UN Convention on the Rights of the Child (CRC), which Kenya ratified, forbids any discrimination against a child based on the circumstances of their birth. In other words, a child must not suffer for who their parents are or whether those parents are married or not.
Yet, if the law were to deny inheritance to children born out of wedlock, that is exactly what would happen punishing innocent children for the choices or “sins” of their parents. In the Fatuma Athman case, the initial stance in the lower courts was that only children born within a Muslim marriage could inherit, effectively disinheriting those born outside wedlock. This approach would have “constitute[d] unjustifiable and unfair discrimination,” as the Court of Appeal observed. It treats some children as lesser, as if they were responsible for the marital status of their parents. Thankfully, the High Court (on review) and the Court of Appeal saw the injustice in this. They ruled and the Supreme Court emphatically agreed that excluding children from their father’s estate just because of their birth status is unconstitutional and unconscionable.
The Supreme Court’s judgment is a resounding affirmation that no child is “illegitimate” in the eyes of the law. The judges underscored that denying inheritance to a child born out of wedlock is “unreasonable and unjustifiable, especially when viewed against the best interests of the child, as enshrined in Article 53(2) of the Constitution”. In practical terms, the Court put the child’s welfare first – ensuring that children are provided for, rather than cast aside due to antiquated social stigma. This aligns Kenya with a growing global consensus: every child, regardless of birth circumstances, deserves equal protection and care. As the South African Constitutional Court famously noted, “No child can in our constitutional order be considered ‘illegitimate’… our Constitution values all human beings equally, whatever their birth status.” Kenya’s Supreme Court has now echoed that wisdom on our own soil.
Article 24(4) Is No License to Discriminate
Critics of the ruling have pointed to Article 24(4) of the Kenyan Constitution, arguing that it allows Muslim personal law to trump equality rights. Article 24(4) does indeed permit the application of Muslim law by Kadhis’ courts in matters of personal status, marriage, divorce, and inheritance but with a vital caveat. It states this is allowed only “to the extent strictly necessary”. In other words, any departure from the general equality provisions must be narrowly tailored and absolutely necessary, not a broad carve-out of basic rights.
The Supreme Court took great care to interpret Article 24(4) in line with the rest of the Bill of Rights. The justices made it clear that this provision “does not authorize broad, indiscriminate or automatic exclusions” from equality protections for Muslims. Instead, any exception under Article 24(4) must pass the normal test for limiting rights set out in Article 24(1): it must be reasonable and justifiable in an open, democratic society. Blanket discrimination against children born outside marriage fails that test outright. There is nothing reasonable or justifiable about disinheriting a child purely because their parents weren’t formally married a point the Court drove home by calling such discrimination unjustifiable and unreasonable.
In its judgment, the Supreme Court effectively read Article 24(4) in harmony with Articles 27 (equality) and 53 (children’s rights). It held that any allowable difference in treatment under Muslim personal law must be “narrowly tailored and strictly necessary” to fulfill a religious tenet, and even then it cannot violate the core of equality and dignity. The ruling emphasized proportionality – that is, even if a religious or cultural practice is recognized, it must be balanced against constitutional guarantees. The Court cited with approval the Court of Appeal’s reasoning that allowing some children to inherit while barring others due to “the alleged ‘sins’ of their parents” would flout the Constitution’s guarantee of non-discrimination.
Kenya’s stance here is in step with global trends in pluralistic legal systems. Courts in other countries have likewise refused to let the banner of cultural or religious “law” be used to strip away fundamental rights. For example, South Africa’s Constitutional Court struck down a customary rule that prevented children born out of wedlock from inheriting under certain tribal laws, noting that such cultural practices must bow to the supreme principle of equality. And in India, the Supreme Court in Danial Latifi v. Union of India (2001) interpreted Islamic personal law in a manner compatible with constitutional rights, effectively holding that when personal laws conflict with basic rights, the latter must prevail. The Kenyan Supreme Court’s interpretation of Article 24(4) follows the same logic: our Bill of Rights cannot be overridden by tradition or personal law, except in the most limited way that is consistent with our values.
The new constitutional order
Underlying the Supreme Court’s decision is a philosophy of living, progressive constitutionalism. The framers of the 2010 Constitution intended it to be a transformative charter one that “breaks the shackles of past injustices” and replaces them with a new ethos of equality and human rights. In the Fatuma Athman case, the Court recognized that old customs labeling some children as “bastards” or unworthy are incompatible with modern constitutional values. The justices refused to uphold what one might call a dehumanizing formalism a rigid application of religious law that would produce an absurd and cruel result. Denying a child their identity and share of family property because their parents weren’t officially wed is the kind of oppression Kenya’s Constitution was written to abolish.
Importantly, the Court noted that Article 24(4) was not meant to fossilize discriminatory rules. That clause was a political compromise during constitution-making, acknowledging the role of Muslim personal law in specific matters. But it was never a green light for perpetuating injustice. As society evolves and as our understanding of rights deepens, constitutional provisions must be interpreted in line with the prevailing values of dignity, inclusion, and social justice. The Supreme Court’s reading of Article 24(4) is a textbook example of this evolution: it honors religious practice only to the extent that it does not violate the fundamental rights of the vulnerable. In practical effect, the Court acted as a guardian of those who might otherwise have no voice – children born outside marriage, who historically were marginalized. This is a judiciary fulfilling its highest duty in a constitutional democracy: to protect minorities and vulnerable groups from the tyranny of outdated norms.
The narrative of this case also highlights an often-misunderstood point: upholding children’s rights and equality is not an attack on religion. Rather, it’s a call to religious and customary norms to meet the standards of humanity set by the Constitution. Many Muslim scholars would agree that justice and compassion are core tenets of the faith. Indeed, some have argued that Islamic law, properly understood, does not seek to punish children for the circumstances of their birth. By aligning inheritance rules with the Constitution’s mandate of non-discrimination, the Supreme Court is nudging both state and religious institutions toward a more humane interpretation – one that reflects Kenya’s present-day ethos rather than the inequalities of the past.
Conclusion
The Supreme Court’s decision in Fatuma Athman Abud Faraj is more than just a resolution of one family’s inheritance dispute; it is a milestone in Kenya’s journey toward justice and equality. The Court has unequivocally affirmed that no child should ever be made to feel lesser or left destitute because of the marital status of their parents. In doing so, it has honored the Constitution’s promise of dignity for all and heeded the principle found in our laws and in our hearts that the best interests of the child must come first.
Some critics have voiced concern that the ruling might infringe on religious freedom or autonomy. But the Supreme Court’s message is that fundamental rights are not subject to a religious or majoritarian veto. Freedom of religion is protected, yes but not the freedom to use religion as an excuse to deny others their rights. Equality, dignity, and the protection of children are non-negotiable. These values represent the irreducible core of our constitutional order. Customs or interpretations of law that undermine this core have no place in a modern, democratic Kenya.
By upholding inheritance rights for children born out of wedlock, the Court has set a precedent that strengthens our social fabric. It ensures that Kenya’s legal system continues to evolve toward greater fairness and inclusivity. No longer can outdated notions of “legitimacy” be used to disenfranchise innocent children. In one decisive judgment, the Supreme Court has corrected a historical injustice and affirmed a truth we should all celebrate – that every child, regardless of birth, deserves equal protection under the law. In the words of Justice Njoki Ndung’u, “The Constitution is a transformative document meant to break the shackles of past injustices.”
