According to the Kenyan Court of Appeal, even if the father who passed away was a Muslim, his children born outside of marriage are still eligible for inheritance.
The court declared in a November ruling by justices SG Kairu, Pauline Nyamweya, and G.V. Odunga that discriminatory cultural practices against other people are unconstitutional.
After Salim Juma Hakeem Kitendo passed away without a will, the judge in the previous high court ruling based her decision on Sharia Law, which states that children born outside of marriage are not entitled to inheritance.
Among the deceased’s belongings were numerous land parcels, automobiles, businesses, bank accounts, and a fuel station located in Diani.
In a nutshell, the judges of the Court of Appeal ruled in their most recent decision that there is no reasonable basis for them to deny the children a just portion of their father’s estate.
“In our opinion, it is not justified to deny children born out of wedlock the benefits that other children born in wedlock receive because of the alleged “sins” committed by their parents. This is because doing so would amount to this Court’s adoption of “hurtful discrimination and stereotypical response” to an obviously discriminatory case. We believe that marital concerns and children’s rights need to be kept separate,” the ruling stated.
The judges ruled that a culture that harms children cannot be tolerated because it deprives them of parental care and protection based only on the father and mother’s marital status.
The ruling stated: “We determine that the first respondent and her offspring born from the deceased’s relationship with the first respondent are entitled to benefit from the deceased’s estate.”
In order to handle the distribution of the deceased’s property, the bench then sent the case back to the high court.