Abububakar Nakhisa Amutallah & 1 other v Rukia Nakhumicha Amisi

3. The trial Kadhi in his judgment found that the 2nd petitioner and the respondent were the deceased’s wives. With regard to the 2nd petitioner’s children, the Kadhi held that: “ With respect to the minor known as Philip Musa Simiyu, child of the 2nd petitioner and Osena Benson Sikinyi, I find that the two to be born out of wedlock. I have concerns about the legitimacy of Philip Simiyu, also known as Kuyabi. It’s surprising how would (sic)a muslim father name his child Philip. The 2nd Petitioner’s averments concerning the birth of the minor was not convincing.” 4. The appellants are dissatisfied with the trial Kadhi's finding regarding the children of the 2nd appellant and have filed this appeal on the following grounds: 1. That the learned trial kadhi erred in law and in fact in finding that the two sons of the deceased born out of wedlock namely: Philip Musa Simiyu and Osena Benson Sikinyi were not entitled to a share of the estate of the deceased as they were considered illegitimate children which fact was not only discriminatory but contrary to the evidence on record. 2. That the decision by the learned trial kadhi runs counter to the provisions of article 27 of the Constitution of Kenya 2010. 3. That the learned trial kadhi erred in law and in relying on the evidence of the respondent on distribution and hence occasioning a miscarriage of justice. 4. That the learned trial kadhi erred in law and in fact in finding that the respondent had proved her case on the balance of the probabilities when it was clear from the evidence of the petitioners that the respondent had a clearly demarcated portion of land which was allocated to her and her children by the deceased. 5. That the learned trial kadhi erred in law and in fact by solely relying on the evidence of the respondent and failing to consider and analyse the evidence of the appellants. 6. That the learned trial kadhi did not conclusively and exhaustively analyze the issues for determination in light of the evidence on record hence arriving at a wrong finding. 7. That the learned trial kadhi did not fairly analyze the appellant’s evidence vis a vis the respondent’s evidence on record and hence his judgment is against the weight of evidence on record. 8. The findings of the learned trial kadhi are insupportable in both fact and law. Submissions 5. 6. The appellants in their submissions identified two issues for the court’s consideration: a. Whether or not the children born out of wedlock are entitled to benefit from the estate of their deceased’s father. b. Whether the trial court applied the requisite standard of proof They relied on section 27 of the Constitution and submitted that holding that children born out of wedlock are not entitled to benefit from the estate would constitute unfair and unjustified discrimination. It was argued that children's rights must be distinguished from marital issues. Citing the case of FAAF v RFM & 2 Others [2023] KECA1322, the court adopted an interpretation that favours the appellants’ enjoyment of the right to equality and freedom from discrimination, and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18815/eng@2025-11-25 2

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develops the law to give effect to that right and fundamental freedom as demanded by the Constitution. Although the respondent argued that children born out of wedlock are not entitled to the deceased’s property under Islamic law, no evidence was presented to persuade the court. In Reveanasiddapa & Another v Mallikarjun & Others (Civil Appeal No 2844 of 2011), the court held that although the parents’ relationship may not be sanctioned by law, the birth of a child in such a relationship must be viewed independently of the parents’ relationship. 7. It was further submitted that the 2nd appellant produced the Certificate of Birth for Phillip Musa Simiyu, which indicated that the date of birth was 3/5/2016 and that the deceased was his father. Although the respondent argued that the child was born on 17/1/2020, after the deceased's death, there was no proof to support her assertion. Therefore, according to the evidence on record, the paternity of the minors was uncontroverted. Analysis And Determination 8. I have carefully considered the appeal, the rival submissions, and the issue that arises therefrom, namely whether the decision of the trial magistrate to exclude the appellant’s children from inheriting the deceased’s property on the basis that they were born out of wedlock offended Article 27 of the Constitution. 9. The respondent, on the other hand, submitted that there were no issues with the provisions of Article 27; however, in this case, Article 27 must be read together with Article 24(4) of the Constitution. 10. Article 27(1) to (5) of the Constitution, which provides as follows: 11. “ 1. Every person is equal before the law and has the right to equal protection and equal benefit of the law. 2. Equality includes the full and equal enjoyment of all rights and fundamental freedoms. 3. Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. 4. The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. 5. A person shall not discriminate directly or indirectly against another person on any of the grounds specified or contemplated in clause (4).” Article 24(4) provides as follows: “ 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18815/eng@2025-11-25 3

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12. The Supreme Court in FAAF v RFM & 2 others [2025] KESC 45 (KLR) considered the application of article 24(4) of the Constitution, the relationship between article 24(4) and article 27 of the Constitution. It held as follows: “ 51. Therefore, persuaded by the foregoing comparative analysis, and returning to article 24(4) of the Constitution, we can only come to the inevitable conclusion that the term “extent strictly necessary” introduces the principle of proportionality as the threshold for assessing whether any derogation is necessary or justified. In essence, any departure from the right to equality must be narrowly tailored and justified by compelling circumstances. Derogations under article 24(4) must also be confined within the bounds of absolute necessity and within the confines of the parties who profess the Muslim religion. Put differently, article 24(4) must be read as allowing only narrowly tailored and strictly necessary departures from the equality and freedom from discrimination provisions of the Bill of Rights. It does not authorize broad indiscriminate or automatic exclusions of Muslims from constitutional equality protections, but rather permits limited exceptions and under stringent conditions in any event. 52. Based on the foregoing, does the exclusion of children born out of wedlock from inheriting their deceased father’s estate under Islamic Law (although born by the same deceased) satisfy the test of proportionality so as to provide justification for denying them the protection of the equality provisions in the Bill of Rights in the manner envisaged in article 24(4)? In Kandie v Alassane BA & another [2017] KESC 13 (KLR) (28 July 2017), this court, at paras 73–77, affirmed that proportionality analysis in the context of adjudicating rights under the Bill of Rights involves a balancing exercise guided by the “reasonable and justifiable” test. The court explained that for the effect of impugned law on a right to be proportionate, it must pursue a legitimate objective and satisfy three subtests: First, the measure adopted must be suitable — meaning it must be capable of achieving the intended goal (suitability). Second, it must be necessary—there must be no less restrictive means available to achieve the same purpose (necessity). Third, the benefits of achieving the objective must outweigh the harm caused to the individual whose right is affected (proportionality in the strict sense). 53. Applying the foregoing “reasonable and justifiable” test to the circumstances before us, we find ourselves in agreement with the Court of Appeal that no reasonable justification has been advanced, nor can we discern any, that would warrant drawing a distinction between children in relation to their entitlement to their father’s Estate in departure from the guarantee to equal protection and benefit of the law in article 27(1) of the Constitution. In our view, 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. This therefore means that any attempt to exclude children born out of wedlock from benefitting from their father’s estate fails the proportionality test envisaged by the phrase “qualified to the extent strictly necessary” which is a condition under article 24(4) of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18815/eng@2025-11-25 4

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…. 59… What emerges from the foregoing is that in cases involving the welfare of children touching on religious laws, doctrines, teachings, rules, or tenets, the paramount consideration by the court must be the protection of the welfare and best interests of the child, taking into account the specific circumstances of each case. Accordingly, we find no reason to depart from the Court of Appeal’s conclusion that, since every child is entitled to parental care and protection under article 53 (1)(e) of the Constitution, it would be contrary to the best interests of the child for the courts to deny a child such care and protection on the basis of the marital status or perceived “sins” of the child’s parents.” 13. In this case, there was evidence that Osena Benson Sikinyi was the deceased’s son born out of wedlock. As regards Philip Simiyu, the trial Kadhi held that his legitimacy as a son was questionable because it was unlikely for a Muslim to name his son Philip. However, the appellants produced a birth certificate showing that the deceased was the father of Philip Simiyu. Therefore, excluding the two children from inheriting from their father on the basis that they were born out of wedlock fails the proportionality test envisaged by the phrase “qualified to the extent strictly necessary”, a condition under article 24(4) of the Constitution. The two children were entitled to parental care and protection under article 53(1) (e) of the Constitution. It would be contrary to the best interests of the children for the courts to deny them such care and protection based on the marital status or perceived “sins” of their parents. 14. Consequently, the appeal is allowed. I find that all of the deceased’s children were entitled to a share of the estate. Therefore, the deceased’s beneficiaries are: Rukia Nakhumicha Amisi, Nancy Chebet, Osena S. Benson, Fahimu Simiyu, Philip Kuyabi, Tabitha Luchimbo, Zuhura Simiyu and Namumbi Roda. The estate shall be distributed equally among them. DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 25TH DAY OF NOVEMBER 2025. R.E. OUGO JUDGE In the presence of: Mr. Murunga -For the Appellant Mr Kapten -For the Respondent Wilkister -C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18815/eng@2025-11-25 5

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