CKC & another (Suing through their mother and next friend JWN) v ANC [2019] KECA 354 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that children of a Muslim father and non-Muslim mother can inherit under the Law of Succession Act in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Conditions precedent for application of Islamic law to limit equality and non-discrimination
Islamic law cannot be applied to non-Muslims who have not submitted to the Kadhi's court; the constitutional preconditions in Articles 24(4) and 170(5) are absolute and strictly construed
Article 24(4) read with Article 170(5) imposes strict conditions: derogation must be only to the extent strictly necessary, relate to personal status, marriage, divorce and inheritance, and involve persons professing the Muslim faith; before the Kadhi's court all parties must profess Islam and submit to its jurisdiction. The appellants do not profess Islam and have not submitted to the Kadhi's court. An interpretation applying Islamic law to them would render the words of Article 170(5) meaningless, which the Court cannot adopt.
Interpretive approach favouring enforcement of rights
The Court adopted the interpretation that most favours enjoyment of the right to equality and freedom from discrimination and develops the law to give effect to rights, as demanded by the Bill of Rights and Article 259
The Court set out the centrality of rights in the 2010 Constitution, noting that unlike the former Constitution it does not readily admit derogation except in clear, exceptional and tightly controlled circumstances. The chosen interpretation most favours enjoyment of the right to equality, develops the law, and promotes the purposes, values and principles of the Constitution under Article 259(1).
Forum and applicable law for the deceased's estate
The High Court must determine succession to S's estate under the Law of Succession Act because not all claimants are Muslims and the appellants have not submitted to the Kadhi's court
Not all claimants to the estate are Muslims; the appellants, in particular, have not submitted to the Kadhi's jurisdiction. The succession cause giving rise to the appeal was filed in the High Court under the Law of Succession Act, and Kenyan courts have long held that every litigant may go directly to the High Court. Any claims by other alleged dependants will be heard by the High Court together with the appellants' claims.
Nature and flexibility of Islamic law
Islamic law is dynamic, plural and not a single uniform code, characterised by justice and kindness, though the Court made no findings altering Islamic inheritance principles
Drawing on its earlier decision in Saifuden Mohamedali Noorbhai, the Court noted that Islamic law centres on justice and kindness, adapts to evolving conditions, and comprises multiple schools within Sunni and Shia branches. However, the record did not show the school of thought to which S belonged, and the Court found it unnecessary to pronounce on the constitutionality of the Islamic inheritance principles implicated.
Narrowing of derogation from equality under the 2010 Constitution
Article 24(4) narrowed the derogation that section 82 of the former Constitution permitted, now confining limitation to application of Muslim law before the Kadhi's courts to persons professing that religion
Section 82 of the former Constitution allowed derogation from equality in matters of personal law for all communities. Article 24(4) of the 2010 Constitution narrows that derogation, permitting limitation only to the extent strictly necessary for application of Muslim law before the Kadhi's courts to persons who profess the religion. The 2010 Constitution emphasises rights and permits derogation only in clear, exceptional and tightly controlled circumstances.
Legal principles established
#- Islamic law can apply to a person only where the strict constitutional preconditions are met: the person must profess the Muslim faith and, for the Kadhi's court, all parties must profess the Muslim religion and submit to that jurisdiction
- Article 24(4) has narrowed the scope for derogation from equality and non-discrimination compared to section 82 of the former Constitution, confining it to what is strictly necessary for application of Muslim law before the Kadhi's courts to persons professing that religion
- Where not all claimants to a deceased Muslim's estate are Muslims or submit to the Kadhi's court, the High Court determines succession under the Law of Succession Act
- The fact that only one party to a dispute professes the Islamic faith is not the decisive consideration in determining the forum and applicable law
- Every litigant, of whatever religious persuasion, may go directly to the High Court; a Muslim is not necessarily restricted to the Kadhi's court
Court orders
#- 1.Appeal allowed
- 2.It is the High Court that must determine the succession to S's estate under the Law of Succession Act because not all claimants to his estate are Muslims
- 3.Any claims by other persons alleging to be dependants of S entitled to inherit from his estate will be heard by the High Court together with that of the appellants
- 4.Each party to bear their own costs
- On appeal from
- High Court of Kenya (Mombasa)
- Succession Cause filed 11th March 2015 (arising from Mombasa High Court Succession Cause No. 436 of 2004 and Kadhi's Court Succession Cause No. 82 of 2012)
- Jurisdiction invoked
- First appellate jurisdiction under the Constitution over the High Court ruling in a succession dispute implicating Articles 24(4), 27 and 170(5) of the Constitution; the judgment does not cite a specific appellate-enabling provision
Key timeline
#Practical implications
#Frequently asked questions
#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.
- Mohamed v Ashraf (Environment and Land Case 41 of 2016) [2026] KEELC 5265 (KLR)[2026] KEELC 5265 (KLR)1 Aug 2026
- FAAF v RFM & 2 others[2025] KESC 45 (KLR)30 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "CKC & another (Suing through their mother and next friend JWN) v ANC [2019] KECA 354 (KLR)", Case Analysis (2019). Court of Appeal Appeal from Mombasa High Court Succession Cause (filed 11th March 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/354/eng@2019-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.