Zis v Mjm & 1 other

descent from the mother or occasionally employed to all relationships] [Muhammad Yusuf op cit, lI, II, 404; Bailie, op cit, 391]. The definition of marriage as' a contract for the purpose of legalizing generation' implies the legal paternity of the man who has begotten a child in lawful wedlock [kanz ul-daqa'iq]. 5. Paternity does not admit of positive proof, because the connection of the child with its father is secret. But it may be established by the word of the father himself, or by a subsisting, legally constituted relationship between him and the mother of the child. There are three degrees in the establishment of paternity. At first, it is by a valid marriage, secondly, an irregular or fasid contract of marriage coming near to the former, and lastly by bondage. The effect of the first degree is to establish paternity without any claim [rejected by a process of li’an only]. 6. Where there exists between a man and a woman the relationship of husband and wife or such semblance as is recognized by the law, the children are either admittedly the lawful children of the man or capable of being made so by his acknowledgment. The semblance of lawful marriage for this purpose includes fasid marriage, and even batil marriage, where it subsisted in bona fide ignorance of the bar or shubha. Legitimacy results from the absence of criminal intent on the part of parents. Indeed, in Sunni law, even the child of criminal intercourse or walad-ul-zina has full rights of inheritance to its mother, though not to its father. 7. The Shariah law provides four principles for the establishment of paternity. According to the first principle [above], a valid marriage contract itself is sufficient for paternity. If the wife bears a child before the marriage contract is entered into, the paternity is established with the husband. The Hanafi jurists do not make it a condition that the two spouses must have come together after the marriage. The presumption of paternity in the Sunni law is so strong that in cases where the child is born six months from the date of the marriage and even within two years after the dissolution of the marriage contract, either by death of the husband or by divorce, a simple denial of paternity on the part of the husband would not take away the status of legitimacy from the child. However, this presumption, since it is based on the 'bed', may be disavowed by the husband for want of access and the ultimate probability of adultery by the li'an procedure. For it, the Maliki, Shafi'i, and Hanbali jurists hold that a valid marriage contract is a cause for fixing paternity if the coming together has been possible, and if it is established that a coming together was not possible, then the paternity is not fixed. Ibn Taimiyyah goes so far and holds that the existence of the contract is a cause for the determination of paternity only in the event that the marriage has actually been consummated; in this view, a mere coming together or the possibility thereof is not sufficient. As a second principle, the jurists consider that the minimum age for a child to be born alive and properly formed on the basis of the Qur'an is six months, which is the shortest period of gestation according to all schools. If a married woman bears a child less than six months after the marriage, its paternity is not attributed to the husband, since she was undoubtedly carrying the child before her marriage, unless the husband claims and declares it as his on condition that he does not state that it was the product of fornication. 8. The third principle relates to the attribution of paternity. The law is stringent against immorality and makes adultery a great sin. The traditions provide for an adulterer to be stoned. On this, there can be no legitimation of an issue of fornication. If a married woman has committed adultery, the paternity of the child is not attributed to her partner in adultery. It is attributed to her husband unless he repudiates it, but the acceptance of such repudiation is hedged with many restrictions and reservations under the methods of acknowledgment. 9. Acknowledgment or lqrar is the fourth principle for the fixation of paternity. It is the only mode of filiation recognised by the Islamic Law. Under Sunni law, the father alone is authorised to establish the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19303/eng@2025-07-18 2

page 2 of 3

relationship of childhood to the total exclusion of the mother or any other relation. It is part of the Muslim legal system and is to be decided in accordance with the rules provided by that system. 10. Case law has settled that only the father has locus standi to establish or deny paternity of children of a wedlock. Musyoka, Law Africa pp 293, Islamic law of Succession cites the case of Juma bin Mwenyezangu v Mwenye bin Abdallah (1897 - 1905) EALR 95H where Hamilton J, stated:“ Under Islamic law, a son is entitled to inherit the estate of his deceased father on the ground of the acknowledgment of paternity only of the deceased. It was also said that the proof of the marriage of the son's mother with the deceased is not necessary". 11. I have considered the memorandum of appeal, the submissions of the parties, and the law as stated above. In my view, the appellant did not tender any evidence to prove the allegation that the respondents were sired out of wedlock. It is self-evident that the appellant was not married when the deceased and the respondents’ mother were living together, as she married around 2003, when the deceased's last-born was a Form 2 student. She would not, therefore, have got the incriminating information. 12. Quran 49: 12 Allah says “ o you who have believed, avoid much (negative) assumption, indeed some assumption is sin, and do not spy or backbite one another. Would one of you like to eat the flesh of his brother when dead? would detest it...” 13. The upshot of the foregoing is that the appeal lacks merit. The same is hereby dismissed. 14. As this is a dispute between family members, each of the parties shall bear their own costs of the appeal. 15. It is so ordered. DATED AND SIGNED IN MOMBASA, THIS 18TH DAY OF JULY 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of:Mr Gichana, for the Appellant; No appearance for the Respondents; and Arthur – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19303/eng@2025-07-18 3

page 3 of 3