Position of Children Born Out of Wedlock in Succession Matters: An Analysis

Introduction

The legal status of children born out of wedlock in succession matters has been a contentious issue in many jurisdictions, including Kenya. The recent Court of Appeal decision in Faraj v Mwawasi & 2 others (Civil Appeal E043 of 2022)provides an insightful analysis of how Kenyan courts address this issue. This article delves into the judicial reasoning and legal principles applied in this case, exploring the broader implications for the rights of children born out of wedlock in inheritance disputes.

Legal Framework

In Kenya, the Law of Succession Act (Cap 160) governs the distribution of a deceased person’s estate. Sections 3(2) and 29 of the Act are particularly relevant when determining the status and rights of children in succession matters. These sections define who qualifies as a dependent and the extent of their entitlement to the estate.

Article 53 of the Constitution of Kenya 2010 also plays a crucial role. It emphasizes the rights of children, including the right to parental care and protection, irrespective of whether they are born within or out of wedlock.

Case Analysis: Faraj v Mwawasi & 2 others

In Faraj v Mwawasi & 2 others, the Court of Appeal faced the challenge of determining whether children born out of wedlock were entitled to inherit from their deceased father’s estate. The primary issues revolved around the legitimacy and paternity of these children.

Facts of the Case

The deceased had children from multiple relationships. The 1st respondent claimed her children were sired by the deceased during their cohabitation before their formal marriage under Islamic Sharia law. However, their paternity was disputed by the appellants, leading to a legal battle to establish their inheritance rights​​.

Judicial Findings

1. Inheritance Rights: The court noted that denying children born out of wedlock the right to inherit from their deceased father’s estate would constitute discrimination. Article 53(1)(e) of the Constitution, which mandates equal parental responsibility, was pivotal in this decision​​.
2. Islamic Law Considerations: The case also involved the application of Islamic law, which traditionally does not recognize the inheritance rights of children born out of wedlock. However, the court balanced this with constitutional principles, ensuring that all children were treated equitably​​.

Implications for Succession Disputes and Inheritance Rights

The judgment in Faraj v Mwawasi & 2 others underscores several key points:

1. Non-Discrimination in Succession Matters: The ruling reinforces the principle that all children, irrespective of their birth circumstances, should not suffer discrimination in succession disputes. This aligns with constitutional protections against discrimination.
2. Balancing Customary and Constitutional Law: The case highlights the judicial effort to balance customary or religious laws with constitutional mandates, ensuring that traditional practices do not infringe on the fundamental rights of individuals, especially vulnerable groups like children born out of wedlock.
3. Children’s Rights in Kenya: The decision reaffirms the importance of upholding children’s rights in Kenya, ensuring that their status as dependents is recognized regardless of their parents’ marital status. This is crucial in safeguarding their inheritance rights and securing their future.

Conclusion

The Faraj v Mwawasi & 2 others case is a key decision in Kenyan succession law. It provides a clear affirmation that children born out of wedlock are entitled to inherit from their deceased parents, emphasizing the need for non-discrimination and the protection of children’s rights. Legal practitioners and stakeholders in succession matters must consider this precedent when advising clients and handling similar disputes.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on succession matters/disputes, children cases, inheritance, or other family disputes, please contact us.