By Joan Ogeto
How Kenyan Courts Are Resolving Inheritance Disputes for Muslim Families
When a Muslim person dies in Kenya, their estate is governed by Islamic inheritance law, a system that traditionally prioritizes spouses, parents, and children born within marriage. But what happens when these rules clash with Kenya’s Constitution, which guarantees equality for all children and prohibits discrimination? This article explores a landmark 2025 Supreme Court decision that redefined how Islamic succession law interacts with constitutional rights, specifically the constitutional dilemma: Can religious laws override equality rights? What does this mean for Muslim families navigating faith, fairness, and the law?
Section 2(3) of the Law of Succession Act expressly exempts the Act’s application to the estate of a deceased Muslim. It provides: –
“… the provisions of this act shall not apply to testamentary or intestate succession to the estate of any person who at the time of his death was a Muslim to the intent that in lieu of such provisions, the devolution of the estate of any such person shall be governed by Muslim law.”
Similarly, Article 24(4) of the Constitution of Kenya states: –
“The provisions of this Chapter on equality shall be qualified to the extent strictly
necessary for the application of Muslim law before the Kadhis’ courts, to persons who
profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.’’
Courts have interpreted these provisions as affirming the supremacy of Islamic law in succession matters involving Muslims. In Re Estate of Adamali Gulam Hussein Lakdawalla alias Gulam Hussein Mulla Allibhai Lakdawala (Deceased) [2015] eKLR, the court held that Part VII of the Law of Succession Act only applies to Muslim estates where it does not conflict with Islamic law. Thus, only procedural elements of the Act may apply, and even then, only when consistent with Sharia.
This distinction is echoed in the Marriage Act. Section 3 provides that although spouses generally have equal rights, parties to an Islamic marriage enjoy only those rights granted under Islamic law. Section 49(3) further excludes provisions inconsistent with Islamic practices.
A contentious issue that continues to generate debate is whether a marriage can be presumed under Islamic law. Divergent views exist, largely reflecting the different schools of thought and sects within the Islamic tradition. Some scholars and jurists have held that in specific circumstances such as long-term cohabitation, recognition of children, or the conduct of the parties a presumption of marriage may arise. Others assert that the concept of presumed marriage is entirely foreign to Sharia, which strictly defines valid marriage (Nikah) and condemns any sexual relationship outside of it as Zina (fornication), which carries religious and legal sanctions. This divergence has significant implications for succession rights, particularly where parties cohabit without formalizing their union under Islamic rites.
This position had long been upheld by Kenyan courts. In Re Estate of CCBH (Deceased) [2017] eKLR, the High Court emphasized that Islamic law does not recognize the concept of a presumption of marriage, and that such relationships are deemed unlawful under Islamic principles. This view was affirmed by the Court of Appeal in CKC & another (suing through their mother and next friend JWN) v ANC [2019] eKLR, where the court declined to entertain the concept of presumed marriage in a Muslim context, concurring with the High Court’s ruling that the doctrine is unknown in Islamic law.
Similarly, in Re Estate of CCBH, the High Court grappled with the question of whether children born out of wedlock or non-Muslims could inherit from a deceased Muslim. Citing precedent, including In the Matter of the Estate of Ishmael Juma Chelanga (Deceased) [2002] eKLR and Saifudean Mohamedali Noorbhai v Shehnaz Abdehusein Adamji [2011] eKLR, the court held that such children were not entitled to inherit under Islamic law. While expressing sympathy for the children, the court pointedly remarked:
“[M]ust fault the deceased and S. This is because, they being Muslims, were well aware that the Applicants are not recognised as heirs of either the deceased or S under Islamic Sharia… [T]he deceased and S ought to have made provision for them by way of will. Islam recognises the testamentary freedom of Muslims. A Muslim may dispose of his estate by will to non-heirs but up to 1/3 thereof.”
These decisions illustrate a consistent judicial approach that prioritizes Islamic law under Section 2(3) of the Law of Succession Act, even when this conflicts with constitutional equality claims under Article 27. However, it is important to recognize that the right to equality and freedom from discrimination under Article 27 is not absolute. Article 24(4) of the Constitution explicitly permits limiting equality rights where strictly necessary to apply Muslim law in personal status matters, including inheritance, for Muslims.
However, this long-standing position was re-examined in the recent Supreme Court decision in SC Petition No. E035 of 2023[2025], arising from Civil Appeal No. E043 of 2022. The judgment was delivered at Nairobi on 30th June 2025, making it a notably current and transformative decision in Kenya’s succession jurisprudence.
The case concerned the inheritance rights of children born out of wedlock to a deceased Muslim man. While it was not in dispute that the deceased died a Muslim thus triggering the application of Islamic law under Section 2(3) of the Law of Succession Act, the Supreme Court upheld the Court of Appeal’s conclusion that such law could not be applied in a way that violates constitutional rights, particularly Articles 27 and 53 which guarantee equality and the rights of children.
Although the Court acknowledged the mandatory nature of Section 2(3), it held that constitutional supremacy must prevail where a religious rule leads to discriminatory outcomes. Applying Article 20(3) of the Constitution, the Court affirmed that all law including religious or personal law must be interpreted in a way that enhances the enforcement of the Bill of Rights.
This decision marks a clear departure from earlier cases such as Re Estate of CCBH (2017) and Saifudean Mohamedali Noorbhai v Shehnaz Abdehusein Adamji (2011), where courts strictly applied Islamic inheritance rules even if they excluded certain dependants. The Supreme Court balanced constitutional guarantees with the application of Muslim law, stating that no personal or religious law can override the Constitution.
The appellant argued that the right to equality under Article 27 of the Constitution is not absolute in the context of Islamic law. She stressed that Article 24(4) allows for the limitation of such rights for persons who profess the Muslim faith, particularly in matters of personal status, marriage, divorce, and inheritance. She contended that the Court of Appeal erred by applying a repugnancy test to Islamic law, effectively subordinating Article 24(4) to the general equality provisions. In her view, this amounted to an improper rewriting of the Constitution. She argued that courts lacked the mandate to override constitutional provisions on the basis of fairness, public interest, or social morality.
The appellant also invoked Article 259 of the Constitution and the Final Report of the Constitution of Kenya Review Commission (CKRC, arguing that the historical and constitutional intent was to shield Islamic personal law from the application of Article 27, thereby preserving its independence in areas such as inheritance. She further emphasized that the appellate court erred by failing to apply Section 2(3) of the Law of Succession Act, which expressly mandates the application of Muslim law to succession matters for Muslims. She criticized the court for treating Islamic law as a form of customary law rather than a constitutionally recognized legal system. Moreover, she challenged the court’s reliance on the concept of “dependants” to justify the inheritance rights of children born out of wedlock, stating that this is a statutory construct under Section 29 of the Law of Succession Act and has no place in Muslim inheritance law.
In response, the 1st and 2nd respondents supported the Court of Appeal’s findings asserting that children born out of wedlock to a Muslim father are entitled to inherit. They relied on the appellate decision in CKC & Another v ANC, which recognized such inheritance rights. The respondents emphasized that Islamic law is rooted not only in legal rules, but also in moral values like love, justice, and compassion, which must inform its interpretation. They argued that Islamic law is not static but dynamic and adaptable to evolving social realities through jurisprudence. Additionally, they invoked international human rights instruments, including the UN Convention on the Rights of the Child (CRC), the African Charter on the Rights and Welfare of the Child, CEDAW, and the Protocol to the African Charter on the Rights of Women in Africa, which prohibit discrimination based on birth or parental status and emphasize the best interests of the child. The respondents urged the Supreme Court to uphold the Court of Appeal’s ruling as a progressive, and constitutionally sound interpretation that harmonizes Islamic principles with the constitutional mandate to protect all children equally.
The Supreme Court affirmed that while Islamic law governs the succession of a Muslim’s estate under Section 2(3) of the Law of Succession Act, this application is not absolute and must align with the Constitution’s fundamental rights. The Court held that the Court of Appeal rightly refused to exclude children born out of wedlock from inheriting solely on the basis of Islamic inheritance rules, as such exclusion contravenes constitutional protections under Articles 27 and 53, guaranteeing equality, non-discrimination, and the best interests of the child.
The Court emphasized that Article 24(4)’s exception allowing application of Muslim law within Kadhis’ Courts is narrow and does not exempt religious laws from constitutional scrutiny. All laws, including religious ones, must be interpreted and applied in harmony with the Bill of Rights, ensuring that discriminatory provisions are reformed or set aside in favor of constitutional values.
In this case, since the deceased had acknowledged and provided for all his children, denying inheritance to those born out of wedlock would be unjustifiable discrimination. The Court’s decision underscores the supremacy of the Constitution and its transformative vision, requiring courts to integrate constitutional rights into the application of religious laws, thereby protecting vulnerable groups and promoting justice in succession matters.
The author is a law graduate (LLB Keele University UK) and writer. She is pursuing the Advocates Training Program (ATP) at the Kenya School of Law.
