Appellate Court Decides on Inheritance Rights of Children Born Out of Wedlock

November 22, 2023

The Kenyan Court of Appeal has affirmed that children born out of wedlock are eligible for inheritance, regardless of whether the deceased father adhered to the Muslim faith.

In a November judgment delivered by Justices SG Kairu, Pauline Nyamweya, and G.V. Odunga, the court stated that cultural practices discriminating against certain individuals contravene the Constitution.

A previous ruling by the high court, which denied inheritance rights to children born out of wedlock based on Sharia Law, was overturned by the Court of Appeal.

High Court Decision Followed Lack of Will in the Estate of Late Businessman Salim Juma Hakeem Kitendo

The High Court ruling followed the death of businessman Salim Juma Hakeem Kitendo, who passed away without a will.

The assets of the deceased included a fuel station in Diani, multiple land plots, vehicles, various businesses, and bank accounts.

In the recent ruling, the Court of Appeal judges succinctly stated that there is no rational justification 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 ruling read in part.

The Appellate Judges ruled that cultural practices that deny children the right to parental care and protection based on the marital status of the father and mother cannot be tolerated.

“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 court adjudicated.

The bench subsequently directed the case back to the high court for the adjudication of the distribution of the deceased’s property.

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