It is discriminatory for a child born out of wedlock to be denied inheritance solely because they were born out of an illegitimate union, the Court of Appeal has ruled.
A three-judge bench comprising Justices Gatembu Kairu, Pauline Nyamweya, and George Odunga agreed that despite religion abhorring sex before marriage, it is unfair to sideline children born from such escapades when their fathers die.
The three judges were determining a case of a man who had a child with a woman before marrying her under the Islamic religion.
Islamic law dictates that where a child has been born out of a marriage, he or she can only inherit from the mother, and not the father.
However, Justices Kairu, Nyamweya, and Odunga were of the view that the rights of a child supersede one’s marital status.
They argued that there is no rational justification to prove that a child born in a marriage has a higher claim to wealth than one who is born outside matrimony.
“To deny children born out of wedlock the benefit which accrues to other children born in wedlock based on the alleged ‘sins’ committed by their parents, in our view cannot be justified.
“It would mean that this court would be adopting ‘hurtful discrimination and stereotypical response’ to a clear case of discrimination,” ruled the bench headed by Justice Kairu.
“Culture that denies such a child his or her otherwise right to parental care and protection on the ground of marital status of the father and the mother cannot be countenanced.”
At the heart of the case was the estate of the late Mombasa tycoon Salim Juma Hakeem, who died without a will on February 23, 2015, in Tanzania. The tycoon engaged in the oil business and had a Blue Jay petrol station in Diani. His estate also comprised a lorry, property in Kilifi and Diani, and four bank accounts.
Three months after Juma’s death, his widow Rubi Mwawasi and her sister Judith Malele filed for succession before the High Court.
On the other hand, Fatuma Athman filed a case before the Kadhi’s court as Juma’s widow. Upon realising Mwawasi had filed a succession case before the High Court, Athman also moved to the same court and lodged a claim to the estate, saying she was the deceased’s lawful wife.
Athman said she married the deceased on August 4, 2006, and they had four children. She said Mwawasi was a stranger to her and her (Mwawasi’s) children could not inherit anything as they were born before she got married to Juma.
Athman also questioned Mwawasi’s intention as the marriage certificate allegedly showed that Juma married Warda Imani Mwawasi.
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Mwawasi said she was a Christian and was named Rubi Mwawasi. However, she explained that on her marriage day, December 11, 2011, the marriage officer insisted she must get a Swahili name. She said her mother-in-law Jully Wakesho gave her the name Warda Imani Mwawasi.
Mwawasi said she had four children with the deceased. However, Athman claimed one child was born of wedlock. Meanwhile, there was a third woman also claiming to have been married to the deceased. Marlin Coram Pownall said she started cohabiting with the deceased in 2011.
She too said she converted to Islam and married Juma in 2011 and they were blessed with one child. Pownall was also married to a foreigner. The judges ruled that Pownall’s marriage to Juma was null and void as she had not dissolved her previous one.