The case stemmed from a dispute over the estate of Salim Juma Hakeem Kitendo, a Muslim man who died intestate in 2015. The appellant, Fatuma Athman Abud Faraj, with whom the deceased had four children, sought to exclude the children born out of wedlock from inheritance, citing Islamic law as applied via Section 2(3) of the Law of Succession Act. The Supreme Court’s task was to interpret Article 24(4) of the Kenyan Constitution, which states that equality provisions may be “qualified to the extent strictly necessary for the application of Muslim law” in matters like inheritance before Kadhis’ courts.

The Court’s reasoning pivoted on the phrase “to the extent strictly necessary.” It held that this introduces a proportionality test, ensuring any deviation from equality under Article 27—guaranteeing equal protection—must be narrowly tailored, reasonable, and justified [para 53]. This approach prevents Article 24(4) from being a blanket exemption for religious law to override constitutional norms.

Drawing from international law, the Court likened “strictly necessary” to Article 4(1) of the International Covenant on Civil and Political Rights (ICCPR),, which allows derogations only as “strictly required.” The UN Human Rights Committee’s General Comment No. 29 reinforces this, tying derogations to proportionality. Similarly, Article 15(1) of the European Convention on Human Rights uses parallel language, with the European Court of Human Rights in cases like Brannigan and McBride v United Kingdom (1993) emphasising proportionality.

The Court also cited the Botswana Court of Appeal’s decision in Ramantele v Mmusi and Others [2013] BWCA 1, where customary law excluding women from inheritance was narrowly construed to align with equality. Applying this lens, the Supreme Court found no compelling justification for barring children born out of wedlock from inheritance. Such exclusion, based solely on parental marital status, was deemed arbitrary and disproportionate, failing the “strictly necessary” threshold [para 53].

The ruling harmonised Article 24(4) with Articles 27 (equality and non-discrimination) and 53 (application of rights to children) of the Kenyan Constitution. Article 53(1)(e) ensures children’s rights to parental care “whether [parents] are married or not,” while Article 53(2) prioritises the child’s best interests. The Court argued that penalising children for their parents’ actions undermines these protections and the Constitution’s transformative vision of equality and dignity, as per Article 20(3), which mandates interpreting laws to promote the Bill of Rights.

This judgement reaffirms that religious laws, even when constitutionally recognised under Article 170(5) for Kadhis’ courts, must align with fundamental rights. By rejecting a rigid application of Islamic inheritance rules, the Court ensured that Muslim law evolves with Kenya’s constitutional values, a stance echoing the African Court on Human and Peoples’ Rights in APD v Mali (2018), which struck down discriminatory inheritance laws.

This Supreme Court’s judgment marks a transformative moment in Kenyan jurisprudence, as it sets a precedent for balancing religious autonomy against the constitutional guarantee of equality and the best interests of the child. By insisting that Article 24(4)’s derogation from equality be interpreted through a strict proportionality lens, the Court reaffirmed that constitutional rights, particularly a child’s right to equal treatment cannot be sidelined by religious personal laws. This decision not only safeguards the inheritance rights of children born out of wedlock but also underscores the judiciary’s pivotal role in harmonising plural legal systems with the Constitution’s transformative vision.

The court conducted a thorough analysis, guided by the principle of purposive interpretation. It concluded that the purpose and effect of Section 226 was inconsistent with the Constitution. The provision failed to address the root causes of suicide and instead perpetuated stigma, thereby violating fundamental rights. In particular, the provision violated the right to equality and non-discrimination under Article 27, as it disproportionately targeted individuals with mental health conditions, perpetuating stigma and discrimination. It also infringed on the right to human dignity under Article 28 by criminalising individuals experiencing suicidal ideation, treating them as offenders rather than individuals in need of care and support. Further, the provision impeded the right to health under Article 43, as the fear of criminal sanctions discouraged individuals from seeking mental health assistance. Finally, the court found that Section 226 contravened the rights of persons with disabilities under Article 54, recognizing that the Mental Health (Amendment) Act 2022 classifies suicidal ideation as a mental illness, thereby warranting constitutional protection. The judgment emphasised that criminalising suicide fails to address its root causes and exacerbates the challenges faced by affected individuals.

The judgment reiterated Kenya’s commitment to its obligations under international human rights treaties, aligning with global standards. The Court noted that its decision reflects the principles of the Universal Declaration of Human Rights (UDHR), particularly Article 7, which ensures equality before the law without discrimination. Additionally, it upholds the Convention on the Rights of Persons with Disabilities (CRPD) specifically Article 4, which mandates the modification of discriminatory laws. The judgment also aligns with the International Covenant on Economic, Social and Cultural Rights (ICESCR), and particularly Article 12, that recognises the right to the highest attainable standard of mental and physical health. Furthermore, it echoes the African Charter on Human and Peoples’ Rights where Article 16 obligates states to protect the health of their citizens.

The judgement is poised to serve as validation of the transition from punitive to reformative measures to address mental illnesses. Along with the declaration of unconstitutionality of the provision, it gave several other directions to ensure this. The court highlighted the need for comprehensive mental health services, as outlined in the Suicide Prevention Strategy (2021–2026) and the Mental Health Policy (2015–2030). The Court emphasised that these two policies provide vital frameworks for improving mental health care but require full implementation. These policies focus on reducing suicide rates, raising awareness, and expanding equitable access to quality mental health services, which the Court stressed as essential for addressing Kenya’s mental health challenges.

The Court further mandated the state to prioritise mental health care by ensuring accessible and affordable services for individuals with suicidal ideation, while also requiring a review of past convictions under Section 226 to deliver justice to those affected. However, the judgment stops short of explicitly detailing what such a review would entail. Questions arise as to whether this process includes reversing prior convictions, granting early release to those incarcerated under the repealed provision, or offering expungement of criminal records.

The court’s adoption of a human rights-based approach to mental health marks a historic step in recognising mental health struggles as a public health issue. Activists and NGOs have also hailed it as a significant milestone which will help in reducing stigma and encouraging open discussions on mental health. However, much of its impact hinges on the government’s next steps, which remain to be seen.