FAAF v RFM & 2 others
The bottom line
#Children born out of wedlock cannot be excluded from inheriting their father's estate under Kenyan law.
What this practically means
#The Kenyan Supreme Court has ruled that denying inheritance to children because their parents were not married is unconstitutional. The case involved a Muslim father who died without a will. His children born outside marriage claimed a share of his estate. The Court held that the Constitution's equality clause and children's rights override any religious law that would discriminate against them. All children, regardless of birth status, have equal inheritance rights.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to entertain the appeal
- 2.Whether the Court of Appeal improperly limited the application of article 24(4) of the Constitution, and in doing so, misconstrued the relationship between articles 24(4) and 27 of the Constitution
- 3.Whether the Court of Appeal failed to give effect to the mandatory application of Muslim law as provided under section 2(3) of the Law of Succession Act
- 4.What orders should issue
Key legal issues
#Whether the Court of Appeal improperly limited the application of article 24(4) of the Constitution and misconstrued its relationship with article 27
The Court of Appeal correctly interpreted article 24(4) as allowing only narrowly tailored and strictly necessary departures from equality, and properly applied the proportionality test to find that excluding children born out of wedlock from inheritance was not justified.
The Supreme Court held that article 24(4) uses the phrase 'qualified to the extent strictly necessary,' which introduces the principle of proportionality. Drawing on comparative jurisprudence from Botswana, the ICCPR, and the European Convention on Human Rights, the Court reasoned that any derogation from equality must be narrowly tailored and justified by compelling circumstances. Applying the proportionality test from Kandie v Alassane BA, the Court found no reasonable justification for discriminating against children based on their parents' marital status, and that such exclusion fails the suitability, necessity, and proportionality-in-the-strict-sense subtests.
Whether the Court of Appeal failed to give effect to the mandatory application of Muslim law under section 2(3) of the Law of Succession Act
The Court of Appeal did not fail to apply Muslim law; rather, it interpreted the relevant rule of Islamic law in a manner that harmonized it with the Bill of Rights, as required by article 20(3) of the Constitution.
The Supreme Court noted that the Court of Appeal acknowledged the deceased was a Muslim and that Islamic law was applicable. However, the appellate court declined to give effect to the rule excluding children born out of wedlock to the extent it infringed constitutional rights. The Supreme Court held that under article 20(3)(a) and (b), courts must develop the law to give effect to rights and adopt the interpretation most favorable to enforcement of rights. Therefore, the Court of Appeal's approach was consistent with the Constitution's transformative vision.
Whether the Supreme Court had jurisdiction under article 163(4)(a) of the Constitution
The Supreme Court had jurisdiction because the appeal involved the interpretation and application of constitutional provisions, namely articles 24(4), 27, and 53, which were central to the reasoning and disposition of the courts below.
The Court applied the test from Nduttu & 6000 Others v Kenya Breweries Ltd, requiring that the appeal originate from a Court of Appeal case where issues of constitutional interpretation or application were contested and determined. The record showed that articles 24(4), 27, and 53 were central to the dispute and were argued and determined in the courts below, satisfying the jurisdictional threshold.
Legal principles established
#- Any departure from the constitutional right to equality must be narrowly tailored and strictly necessary.
- Children born out of wedlock have the same inheritance rights as children born within marriage.
- Courts must interpret religious or customary laws through the lens of the Bill of Rights.
- The proportionality test requires any discrimination to be suitable, necessary, and proportionate.
- Article 24(4) of the Constitution does not allow automatic exclusion of Muslims from equality protections.
Court orders
#- 1.The appeal dated December 14, 2023 and filed on December 18, 2023 is hereby dismissed.
- 2.The Judgment of the Court of Appeal delivered on November 10, 2023 is hereby affirmed and specifically the finding that the children of the appellant as well as the 1st and 3rd respondents are beneficiaries and/or dependants of the Estate of the deceased.
- 3.The letters of administration for the Estate of the deceased be issued jointly to the appellant and the 1st respondent.
- 4.This matter be remitted to the High Court Mombasa for determination of respective entitlements of the beneficiaries by a Judge other than Onyiego, J on a priority basis.
- 5.Parties do bear their respective costs.
- 6.The sum of Kshs 6,000 deposited as security for costs upon lodging of this Appeal be refunded to the Appellant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Mombasa
- Civil Appeal No. E043 of 2023
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Setting aside the Court of Appeal judgment and substituting it with an order that the 1st and 3rd respondents' children are not entitled to inherit from the deceased
The Supreme Court found that denying children born out of wedlock the right to inherit would be unreasonable and unjustifiable, and that the Court of Appeal correctly applied the proportionality test under article 24(4) and the best interests of the child under article 53.
Costs
each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
denying children born out of wedlock by the same parents the same benefits accorded to children born within wedlock, on the basis of the alleged 'sins' of their parents, is unreasonable and unjustifiable
all laws, including religious or customary law, must be interpreted and applied through the lens of the Bill of Rights
The appeal dated December 14, 2023 and filed on December 18, 2023 is hereby dismissed.
The Judgment of the Court of Appeal delivered on November 10, 2023 is hereby affirmed and specifically the finding that the children of the appellant as well as the 1st and 3rd respondents are beneficiaries and/or dependants of the Estate of the deceased
This being a family matter, we order that Parties do bear their respective costs.
Key timeline
#Practical implications
#Proportionality test now required
When arguing cases involving religious or customary law, you must demonstrate that any departure from equality rights is narrowly tailored and strictly necessary. Use the four-part test from Kandie v Alassane BA: suitability, necessity, proportionality in the strict sense, and balancing. Courts will not accept blanket exemptions under Article 24(4).
Succession planning must include all children
If your business involves estate planning or administering trusts, ensure that wills and succession documents explicitly include children born out of wedlock. Relying on religious law to exclude them will be challenged. Review existing estate plans to avoid disputes and litigation. The ruling applies to all estates, not just Muslim ones.
Your children's inheritance rights protected
If you are a parent, all your children – whether born in or out of marriage – have equal rights to inherit from your estate. This applies even if you follow a religion that traditionally excludes them. If you die without a will, the court will distribute your property to all children equally. You cannot disinherit them based on birth status.
Frequently asked questions
#Does Kenya's law allow Muslim inheritance rules to exclude children born out of wedlock?+
No. The Supreme Court ruled that Muslim law cannot be used to exclude children born out of wedlock from inheriting their father's estate because it violates the constitutional rights to equality and children's protection. Any religious rule that discriminates must satisfy a strict proportionality test.
What is the impact of the FAA v RIM case on inheritance rights in Kenya?+
This case confirms that all children, regardless of whether their parents were married, have equal inheritance rights under Kenyan law. Courts must apply the Bill of Rights even when dealing with religious or customary succession laws. This protects children from discrimination based on their birth status.
Can a Kenyan father still write a will that excludes children born out of wedlock?+
Potentially, but the will must comply with the Constitution. The decision suggests that excluding children solely because they were born out of wedlock could be challenged as discriminatory. A will that deliberately ignores such children may be struck down for violating the rights to equality and non-discrimination.
Does the FAA v RIM case apply to all religions in Kenya, not just Muslims?+
Yes. The principles apply to any religious or customary law that conflicts with the Bill of Rights. The Court emphasized that all laws must be interpreted through the lens of the Constitution. So Christian, Hindu, or customary inheritance rules that discriminate against children based on birth status would also be invalid.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wekesa & 2 others v Simiyu & 2 others (Environment and Land Case 42 of 2019) [2026] KEELC 2972 (KLR)[2026] KEELC 2972 (KLR)13 May 2026
- Wandi v Muchira (Suing as the Administrator Ad Litem of Jane Muthoni Muchira)[2026] KESC 29 (KLR)31 Mar 2026followed
Cite this brief
#Cite this brief
Caselaw, "FAAF v RFM & 2 others", Case Analysis (2025). Petition E035 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2025/45/eng@2025-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.