Keeping Faith with Equality – the Supreme Court of Kenya’s Clarion Call on Muslim Inheritance and Children’s Rights – Constitutional Law and Philosophy

[This is a guest post by Miracle Okoth Mudeyi and Ochiel Dudley.]

Introduction

On 30 June 2025 the Supreme Court of Kenya delivered its decision in Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & 2 Others, SC Petition No E035 of 2023 (the Faraj judgment). The Court faced a deceptively simple question: may children born out of wedlock to a Muslim father be excluded from their parent’s estate because classical Islamic inheritance rules brand them “illegitimate”? In answering “no”, the Court recast the relationship between religious personal law and the Bill of Rights, insisting that equality is the default and that any departure must be “strictly necessary” as required by Article 24(4) of the Constitution. The decision has immediate consequences for succession law, children’s rights, and the continuing project of constitutional transformation in plural societies. This piece walks through the judgment, traces its doctrinal moves, and anticipates its ripple effects across Kenyan equality jurisprudence.

The Road to the Supreme Court

The dispute began in 2015 when two parallel succession causes—one before the Kadhi’s Court and another before the High Court at Mombasa—sought distribution of the late Salim Juma Hakeem Kitendo’s estate. Three women each claimed to be the deceased’s widow, while eight children claimed to be heirs. At first instance Onyiego J. applied Islamic law yet still directed DNA tests to confirm paternity for children whose legitimacy was questioned. (Para.10).

On appeal the Court of Appeal (Gatembu, Nyamweya, and Odunga JJ.A.) set aside the DNA order and held that excluding children on the basis of their parents’ marital status would offend Articles 27 and 53 of the Constitution. Having remitted the cause for redistribution, the appellate court triggered an appeal as of right to the Supreme Court under Article 163(4)(a).

Article 24(4) Under Careful Scrutiny

Article 24(4) is a curious constitutional clause. It permits a qualified departure from equality “to the extent strictly necessary” for the application of Muslim personal law before the Kadhi’s Court and only for persons who profess the Muslim religion. The appellants urged a literal reading: once Muslim law governs succession, children born outside a valid Islamic marriage must be excluded.

The Supreme Court rejected that absolutist view. Beginning with the text, the Court read Article 24(4) alongside Articles 20, 21, 27, 32, and 53, then consulted the Final Report of the Committee of Experts to uncover the clause’s history. The phrase “strictly necessary” was treated as a proportionality command.(Paras. 42-47) Religious norms may depart from equality only when the objective pursued is legitimate, the chosen means are suitable, no less-restrictive alternative is available, and the benefits clearly outweigh the harm. Blanket exclusion of children failed every limb because it punished minors for their parents’ choices and undermined the Constitution’s commitment to human dignity. The Court reinforced its reading with its previous decisions(Nduttu & 6000 Others Vs Kenya Breweries Ltd and Kandie v Alassane Ba) and comparative authority from Botswana’s Ramantele v Mmusi.

Proportionality in Action

Having clarified the test, the Court applied it to the record. Four children were contested: LK, HK, and TK were born while their mother co-habited with the deceased but before an Islamic marriage ceremony; HM was born to a woman whose civil marriage had not been dissolved when she later married the deceased. The deceased had acknowledged, named, and maintained all four. To deny them inheritance would breach Article 27 on equal protection and Article 53(1)(e) on equal parental care. The decision also refused to elevate the label “illegitimate” into a controlling legal category. The Constitution nowhere employs that term, and the best-interests principle in Article 53(2) ranks higher than personal-law labels. Where the two conflict, the child’s interest prevails.

Children’s Rights at Centre Stage

The 2010 Constitution elevates the best interests of the child to paramount status. Reading Article 53(2) together with Article 21(3), the Supreme Court framed a hierarchy of obligations: religious autonomy is respected only after the State has secured the dignity, equality, and welfare of the child. Placing children’s rights at the core of a succession dispute provides a template for future clashes between personal law and the Bill of Rights in areas such as marriage, adoption, and guardianship. (Para. 44).

Implications for Law and Society

The judgment clarifies the reach of Article 24(4). “Strictly necessary” now demands a fact-sensitive inquiry rather than automatic deference to tradition. By insisting on that inquiry, the Court harmonises Kenya’s plural legal orders—state, customary, and religious—under a single constitutional canopy. The decision also strengthens a burgeoning line of child-centred cases that includes CMM (Suing as the Next of Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others [2023] KESC 68 (KLR) & CKC & CC (Suing through their mother and next friend JWN) Vs ANC Another v ANC, signalling that every measure touching children must pass a best-interests audit.

Judicial Method as a Lesson in Itself

The reasoning in Faraj exemplifies the “contextual, purposive, and value-oriented” approach endorsed in In re Kenya National Human Rights Commission. The Court began with constitutional text, considered its historical setting, engaged comparative jurisprudence, and drew upon Islamic doctrine itself. That layered method not only produced a robust outcome but also models how future courts can adjudicate value conflicts without erasing cultural difference.

Doctrinally, the Court adopted proportionality as its analytic engine. Drawing on its own decision in Kandie, it articulated the familiar trilogy of suitability, necessity and strict balancing, then showed how that trilogy is latent in the words “to the extent strictly necessary”. Comparative jurisprudence reinforced the choice: Botswana’s Ramantele decision, Article 4 of the ICCPR, Article 15 of the European Convention and the UN Human Rights Committee’s General Comment 29 all employ identical language to cabin derogations from equality.

Finally, the judges applied a fact-rich proportionality inquiry, refusing to rely on abstractions. They weighed the real harms to children against any asserted religious objective and found the exclusion rule wanting. Throughout, the Court insisted on reading the Constitution as a single coherent instrument rather than “between the lines,” echoing its earlier advisory opinion in the Kenya National Human Rights Commission reference.

Seen as a whole, the method is dialogic rather than confrontational. Text, structure, history, values, comparative law and lived facts converse until a harmonized answer emerges. For lower courts and scholars alike, Faraj thus supplies both a substantive holding and a template: fidelity to the Constitution demands a purposive, value-infused, proportional and historically aware approach, one that listens to global conversations yet remains rooted in Kenya’s transformative project.

Conclusion

Faraj is more than a family-property dispute. It is a constitutional morality tale about harmonising faith and freedom in a plural society. The Supreme Court declares that personal law remains valid only when it meets the twin tests of necessity and proportionality. Children, the most vulnerable rights-holders, cannot become collateral damage in that negotiation.

The Post-2010 Constitution Kenyan judges have long invoked the promise of transformative constitutionalism. In translating that promise into concrete relief for children once branded illegitimate, Faraj shows what transformation looks like: careful reasoning, respect for diversity, and unwavering fidelity to the equal dignity of every person.