A Commentary on FAAF v RFM & 2 Others [2025] KESC 45 (KLR)
The Supreme Court’s decision in FAAF v RFM & 2 Others (Petition E035 of 2023) [2025] KESC 45 (KLR) marks a pivotal moment in Kenya’s constitutional jurisprudence. At the heart of the dispute lay a question that sits at the intersection of religious autonomy and constitutional supremacy: Can children born out of wedlock to a deceased Muslim father be excluded from inheritance under Islamic law without violating the Constitution?
The Court answered firmly in the negative, holding that such exclusion violates Articles 27 (equality and freedom from discrimination) and 53 (best interests of the child), and fails the proportionality threshold embedded in Article 24(4)
This commentary examines the decision through three lenses: (1) constitutional accommodation of religious pluralism, (2) proportionality and limitation doctrine under Article 24, and (3) the transformative centrality of children’s rights.
I. Constitutional Accommodation and the Architecture of Pluralism
Article 24(4) of the Constitution provides that the equality provisions of the Bill of Rights are “qualified to the extent strictly necessary” for the application of Muslim law before the Kadhi’s Courts in matters of personal status, marriage, divorce, and inheritance. The appellant argued that this clause constitutionally insulates Islamic inheritance principles from equality scrutiny.
The Supreme Court rejected that reading.
The Court recognized that Article 24(4) reflects a negotiated constitutional compromise designed to accommodate Kenya’s religious diversity. It affirms the jurisdiction of Kadhi’s Courts under Article 170 and acknowledges the historical place of Muslim personal law. However, the Court emphasized that the accommodation is structured, limited, and conditional.
Article 24(4) contains internal qualifiers:
- It applies only to equality provisions.
- Only to persons professing the Muslim faith.
- Only in matters of personal status, marriage, divorce, and inheritance;
- Only before Kadhi’s Courts;
- And only “to the extent strictly necessary”
By foregrounding these limitations, the Court reaffirmed a core constitutional principle: pluralism operates within constitutional supremacy, not outside it.
II. “Strictly Necessary” and the Constitutionalization of Proportionality
The most jurisprudentially significant aspect of the judgment lies in its interpretation of the phrase “qualified to the extent strictly necessary.”
The Court held that this language imports the proportionality framework found in Article 24(1), meaning that any derogation from equality must satisfy the familiar three-stage test:
- Suitability,
- Necessity (least restrictive means),
- Proportionality in the strict sense
This move is doctrinally profound. It prevents Article 24(4) from becoming a categorical exemption and instead subjects it to the same discipline as all other rights limitations. The Court further drew comparative support from international human rights law and foreign jurisprudence, particularly interpretations of “strictly required” language in derogation clauses.
The practical consequence is clear: religious personal law may justify differentiation only where it can survive rigorous proportionality scrutiny.
In the present case, the exclusion of children born out of wedlock failed that test. The Court found no compelling objective that could justify denying inheritance rights to children solely on the basis of their parents’ marital status.
The harm inflicted, permanent deprivation of inheritance and legal recognition far outweighed any asserted religious rationale.
III. Equality and the Rejection of Status-Based Discrimination
Article 27 guarantees equal protection and benefit of the law. The Court interpreted this provision as prohibiting discrimination against children on grounds tied to birth or parental status
The Court was particularly emphatic that children cannot be punished for the “sins” of their parents. This language reflects an ethical as well as legal commitment: constitutional adjudication must break with historical practices that attach stigma to children based on legitimacy classifications.
In addition, the Court did not deny the existence of traditional Islamic inheritance principles. Instead, it held that when such principles produce outcomes inconsistent with constitutional equality, they must be transformed through constitutional interpretation.
In this respect, the decision is a clear affirmation of transformative constitutionalism. Religious law, like customary law, must evolve within constitutional parameters.
IV. The Paramountcy of the Best Interests of the Child
Article 53 elevates the best interests of the child to a position of paramount importance. The Court read Article 24(4) in harmony with Article 53 and Article 21(3), which mandates special protection for vulnerable groups.
The denial of inheritance was found incompatible with:
- The child’s right to parental care and protection,
- Equal treatment by both parents,
- And the broader constitutional vision of child dignity.
This integration of equality and child-rights analysis is particularly noteworthy. Rather than treating Article 53 as secondary, the Court placed it at the interpretive center of the dispute.
The judgment therefore deepens Kenyan jurisprudence on children’s rights by clarifying that religious doctrines cannot override the constitutional best-interests standard.
V. Transformative Constitutionalism and the Supremacy of the Bill of Rights
Perhaps the most far-reaching doctrinal statement in the judgment is the Court’s assertion that:
All laws, including religious and customary law must be interpreted and applied through the lens of the Bill of Rights
This principle reinforces constitutional supremacy and positions the Bill of Rights as a normative filter for all legal systems operating within Kenya.
The decision thus sits alongside earlier jurisprudence in which courts have recalibrated customary or personal law to align with equality norms. However, FAAF extends this logic explicitly into the domain of Islamic inheritance law under Article 24(4), an area previously thought to enjoy broader insulation.
VI. Implications for Succession and Religious Freedom Jurisprudence
The ruling carries significant implications:
- For Muslim succession law: Courts must ensure inheritance rules comply with equality and proportionality principles.
- For Kadhi’s Courts: Jurisdictional autonomy does not displace constitutional review.
- For religious freedom doctrine: Article 32 protection of religion is subject to harmonization with equality and child-rights norms.
- For children’s rights litigation: The case strengthens constitutional protection against status-based discrimination.
It is foreseeable that this decision will influence future disputes involving personal law, gender equality, and religious doctrine.
Conclusion
FAAF v RFM & 2 Others represents a careful but decisive recalibration of the balance between religious accommodation and constitutional equality. By interpreting Article 24(4) as a narrow, proportional limitation rather than a blanket exemption, the Supreme Court preserved religious pluralism while reaffirming the supremacy of the Bill of Rights.
Most importantly, the Court affirmed a foundational constitutional truth:
A child’s dignity, equality, and best interests cannot be subordinated to the marital choices of their parents.
In doing so, the judgment consolidates Kenya’s commitment to transformative constitutionalism one in which pluralism is respected, but never at the expense of fundamental rights.
Note : Achild born out of wedlock to a Muslim father cannot be excluded from inheriting his estate if such exclusion would violate the constitutional rights to equality and the best interests of the child.
