Judges rule on whether children born out of wedlock can inherit parent's wealth

The Kenyan Court of Appeal has ruled that children born out of wedlock are entitled to inheritance even if the deceased father was a Muslim. 

In a judgment delivered by justices SG Kairu, Pauline Nyamweya & G.V. Odunga in November, the court said that cultural practices that discriminate against others violate the Constitution. 

In the previous judgement by the high court, the judge relied on Sharia Law to rule that children born out of wedlock were not entitled to inheritance after Salim Juma Hakeem Kitendo died without a will. 

The deceased’s property included a fuel station in Diani, several plots of land, vehicles, businesses and bank accounts. 

In the latest ruling, the Court of Appeal judges, in summary, said no rational justification warrants them to deny the children a fair share of their father's estate.

“To deny children born out of wedlock the benefit which accrues to other children born in wedlock on the basis of the alleged “sins” committed by their parents, in our view, cannot be justified since it would mean that this Court would be adopting “hurtful discrimination and stereotypical response” to a clear case of discrimination. It is our view that the rights of the children must be distinguished from marital issues,” the judgement read. 

The judges held that a culture which is harmful to a child, in the sense that it denies such a child the right to parental care and protection, on the grounds of the marital status of the father and the mother, cannot be allowed.

“We find that the 1st respondent and her children born from the relationship between the deceased and the 1st respondent are entitled to benefit from the estate of the deceased,” the judgement read. 

The bench then referred the case back to the high court to handle the distribution of the deceased’s property.