The damaged Supreme Court gate during the Anti-Finance Bill 2024 protest on June 25, 2024. [Boniface Okendo, Standard]
On June 30, the Supreme Court of Kenya sparked frustration among many Muslims when it ruled that a child born out of wedlock to a Muslim man can inherit his estate, contrary to the position under Islamic law.
Aggrieved Muslims argue that the judgment subjugates Islamic law to secular doctrine and undermines their right to practise their faith under Article 32 of the Constitution and Section 2(3) of the Law of Succession Act, which codifies Muslim personal law in Kenya.
Some see a troubling pattern in the Court’s handling of Muslim matters. They cite a 2019 judgment which denied Muslim girls in secular and Christian schools the right to wear hijab, arguing it breached Articles 27 and 32, which protect equality and religious freedom.
Critics argue that Muslim issues are subjected to a separate, often discriminatory standard. They foresee future disputes—for example, if a woman applies to be Kadhi or Chief Kadhi, or when a petition to regulate the Muslim call to prayer reaches the courts.
Until the ruling, many Muslims believed the matter had a straightforward answer under Islamic law, Article 24(4), and Section 2(3) of the Law of Succession Act, given that all parties involved, including the deceased, were Muslim. Because Article 24(4) is meant to protect religious minorities in the application of personal law, critics believe the court unjustly subordinated it to an intrusive test, undermining its role in Muslim succession and its long-standing place in Kenya’s legal system.
To that extent, some argue, the judgment contradicts the Constitution it claims to uphold. Others insist the dispute should have been conclusively handled by the Kadhi’s Court. Islamic law has been practised along the coast for centuries. On October 5, 1963, a treaty between Kenya and Zanzibar ceded the coastal strip to Kenya. To secure the strip, Kenya agreed to entrench the Kadhi Courts and Muslim personal law into its independence Constitution. During the Bomas constitutional talks in the early 2000s, evangelical Christians called for the removal of Kadhi Courts. Some Muslims, in response, demanded an appeals court for Kadhis and a broader application of Islamic law among consenting Muslims. A compromise retained the Courts under Article 170, with limited jurisdiction.
In its 2025 ruling, the Supreme Court applied a “holistic” test, examining how Article 24(4) interacts with other provisions like Articles 27 and 53, which protect equality and children’s rights. It also addressed whether Section 2(3) of the Law of Succession Act should be the sole guide in Muslim inheritance disputes.
Many Muslims argue that these questions have simple answers under Islamic law and the Constitution. But the court ruled that, “Article 24(4) must be read in harmony with other provisions, such as Articles 21(3) and 53… The Constitution must be read as a whole and not in isolation.”
Critics point to inconsistency in the court’s use of the holistic test, highlighting the hijab ruling and a separate case allowing a Rastafarian pupil to wear dreadlocks.
They also cite the 2021 BBI judgment, where the Court interpreted Article 143(4) narrowly to shield the president from civil proceedings, rejecting comparative jurisprudence and ignoring other constitutional provisions requiring the President to uphold the law. Many now argue that the court’s approach has not developed jurisprudence evenly across critical issues.
The writer is an advocate of the High Court [email protected]
By David Ochami