KADHI’S COURT SERIES: PART 2
This is part of a Mini-series on jurisprudence, legislation and matters before the Kadhi’s Courts in Kenya. The link to Part 1 is here: https://mmsadvocates.co.ke/divorce-child-custody-under-islamic-law-sharia-law/
A BIRD’S EYE VIEW OF THE KENYAN COURTS
Emerging jurisprudence on the law of succession under Sharia law, particularly in plural legal systems like Kenya, is increasingly focused on harmonizing traditional Islamic inheritance principles with constitutional guarantees of equality, non-discrimination, and the best interests of the child. The most significant development is the re-evaluation of the rights of children born out of wedlock (illegitimate children) and the role of women in intestate succession.
It’s increasingly defined by a transformative constitutionalism that seeks to harmonize religious personal law with universal human rights.
Landmark Developments in Kenya (2025)
Inheritance Rights for Children Born Out of Wedlock: The most significant shift in recent jurisprudence is the recognition of inheritance rights for children born outside of a formal Islamic marriage (Nikah).
In a landmark ruling on June 30, 2025 (SC Petition No. E035 of 2023 – Fatuma Athman Abud Faraj vs Ruth Faith Mwawasi & 2 Others), the Supreme Court of Kenya affirmed that children born out of wedlock to Muslim fathers are entitled to inherit from their father’s intestate estate. The Court held that while Sharia law generally excludes “illegitimate” children from inheriting from their father, this exclusion is unconstitutional under the principles of equality (Article 27) and the best interests of the child (Article 53).
Such children are entitled to inherit provided their paternity is established and the father acknowledged them during his lifetime.
Constitutional Supremacy over Rigid Interpretation: Qualification of Article 24(4) (Strict Necessity): Courts are now applying a strict proportionality test to the constitutional provision that allows Sharia law to qualify the right to equality.
The Court held that while Islamic law is recognized under the Constitution (Article 24(4) and 170), its application is not absolute and cannot override fundamental rights to equality and the “best interests of the child”. The ruling found that excluding children born out of wedlock constitutes unfair discrimination.
Jurisdiction and Choice of Law: Emerging case law clarifies the boundaries between Kadhi’s Courts and civil courts:
Submission to Jurisdiction: Profession of the Islamic faith alone does not always compel a party to use the Kadhi’s Court. The High Court of Kenya has asserted jurisdiction where matters involve constitutional interpretation or customary law elements that fall outside the Kadhi’s specialized mandate.
Plural Legal Arrangements: In cases where a man marries under both civil statute and Sharia law, appellate courts have recently held that the statutory marriage does not necessarily vitiate the subsequent Islamic marriage, allowing both sets of families to potentially inherit.
Reconciliation of Faith and Rights: The judgment bridged the gap between Sharia principles—which typically preclude children born outside a valid Nikah (Islamic marriage) from inheriting—and constitutional rights, insisting on a “proportionate” application of religious law.
Recognition of Paternity: For children born out of wedlock to inherit, paternity must be established and the child must have been acknowledged by the father during his lifetime.
Testamentary Freedom and “Compulsory Wills”: While traditional Sharia limits testamentary freedom to one-third of the estate, modern judicial trends suggest alternative protections:
Compulsory Wills: Some lower courts have explored the concept of a “compulsory will” to provide for dependents (like children born out of wedlock) who were not included in a formal will but for whom the deceased had a moral and financial obligation.
Charitable Provisions: Courts may grant a “token share” to minor dependants on humanitarian and charitable grounds even if they do not qualify as formal Sharia heirs.
The key trends and evolving principles under Sharia Law, in a nutshell, are:
- Testamentary Freedom (Wasiyyah): Courts have emphasized that a Muslim can use their testamentary freedom (up to 1/3 of the estate) to provide for children born out of wedlock or other dependants, even if they are not legal heirs under Faraid (Islamic inheritance law).
- Life Interest vs. Absolute Ownership: Emerging, though contentious, jurisprudence has explored granting widows a “life interest” in the matrimonial home to protect them from being rendered homeless upon the husband’s death, which sometimes conflicts with strict Sharia distribution rules.
- Presumption of Marriage: There is conflicting, yet evolving, jurisprudence on the “presumption of marriage” (marriage by habit and repute) in the Kadhi’s Court and High Court, where long-term cohabitation may be recognized to protect the legitimacy of children, even if a formal Nikah cannot be proven.
- Intermeddling and Protection of Estates: Courts are taking a stricter stance against “intermeddling”—where relatives divide a deceased Muslim’s property immediately upon death without following proper legal processes or waiting for a grant of letters of administration.
Challenges and Divergent Views
Opposition to Judicial Activism: Some segments of the Muslim community, including religious leaders, have expressed strong opposition to these rulings, arguing that they constitute a “dangerous overreach” by the judiciary into sacred Sharia law.
Religious Autonomy: Critics argue that the Supreme Court is “reinterpreting” the Quran without proper expertise, undermining the authority of the Kadhi’s Courts.
Conflict with Religious Principles: The traditional view holds that inheritance is not a communal right but a divine obligation (Qadar) and that children born out of wedlock cannot inherit from the father, a view that is now being restricted by the judiciary to promote equality.
These developments signify a transformative moment in African legal systems, specifically Kenyan courts; where Sharia is being interpreted through a modern, human-rights-focused lens; ensuring that religious norms do not result in the marginalization of vulnerable family members. MMS Advocates are, have been and will be keenly following all major and minor developments on these issues, as well as offering legal advice to our clients when need arises.
Disclaimer: The content of this article is intended for general informational purposes only and should not be relied upon as a substitute for specific legal advice.
