On 30 June 2025, the Supreme Court of Kenya delivered a groundbreaking judgment in Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & 2 Others [2025] KESC 35, addressing whether children born out of wedlock can inherit from their deceased Muslim father’s estate under Islamic law. This ruling, rooted in a nuanced interpretation of the Constitution of Kenya 2010, clarifies the interplay between religious autonomy and constitutional rights, particularly equality.

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.