Supreme Court urged to grant wealth to children born out of wedlock

A woman has urged the Supreme Court to disregard Islamic religious dictates on marriage and inheritance to grant a child born out of wedlock between a Muslim and a Christian his right to inherit a Mombasa tycoon.

Rubi Mwawasi made her final submissions on Tuesday before Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko.

Her lawyer Joseph Munyithia asserted that the child born by her and the late Salim Juma Hakeem deserved his wealth.

He stated that the case was not about a single child but about the exclusion of a community born to men who profess Islam out of wedlock or before they are married to their mothers.

“Any man who sires a kid, whether in a marriage or not in a marriage, remains the father, whether alive or dead, and his estate is available to be inherited by that kid.

The existing jurisprudence as expounded by the Court of Appeal is that a child is a child whether born in a wedlock or by parents who are not in a union. This court should uphold that jurisprudence,” argued Munyithia.

In response, Fatuma Athman Abud Faraj told the court that the Court of Appeal failed to find that Islamic law and religion are clear about who should inherit from a parent.

Athman, who represented herself after the Supreme Court directed her to find another lawyer besides Ahmednasir Abdullahi, whom they had banned, argued that Judges illegally went beyond the law to infuse unknown tradition and practice among Muslims.

“This was a deliberate infusion of their personal views on children born out of wedlock. We pray that the case should be allowed as prayed,” argued Athman.

The Court of Appeal held that it is discriminatory for a child born out of wedlock to be denied inheritance solely because they were born out of a ‘sin.’

A three-judge bench composed of Justices Gatembu Kairu, Pauline Nyamweya, and George Odunga unanimously agreed that, despite religion's condemnation of sex before marriage, it is unjust to exclude children born from such encounters when their fathers pass away.

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.

According to them, there is no rational justification to prove that a child born in a marriage has a higher claim to wealth than one born outside matrimony.

“To deny children born out of wedlock the benefit which accrues to other children born in wedlock on the basis of the alleged “sins” committed by their parents, in our view cannot be justified since 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.

They continued: “It is our view that culture that is harmful to a child in the sense 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.”

The wealth left by Mombasa tycoon Salim Juma Hakeem was at the heart of the case.  Juma died without a will on February 23, 2015, in Tanzania.

In his lifetime, Juma engaged in the oil business and owned a Blue Jay petrol station in Diani. He also owned a lorry and two properties in Kilifi and Diani. Four bank accounts were also listed as part of his wealth.

Three months after his death, Rubi, who had a child before marrying her, sued Fatuma Athman Abud Faraj, seeking recognition as an heir and inheritance.

 Mwawasi and her sister Judith Malele filed for succession before High Court Judge John Onyiego.

On the other hand, Athman filed her case before the Kadhi’s court as Juma’s widow. Upon realising that Mwawasi had filed a succession case before the High Court, Athman also moved to the same court and lodged her claim to the estate, stating that she was the deceased’s lawful wife.
Athman asserted that she married the deceased on 4 August 2006 and had four children with him.

She further argued that Mwawasi was a stranger to her adding that the latter’s (Mwawasi) children could inherit anything as they were born before Juma married her.

The woman also questioned Mwawasi’s marriage certificate, allegedly showing that Juma married Warda Imani Mwawasi.

In her response, Mwawasi explained that she was initially a Christian and got the name Rubi Mwawasi. However, on her marriage day, December 11, 2011, the marriage officer insisted that she get a Swahili name.

She stated that her mother-in-law, Jully Wakesho, called her Warda Imani Mwawasi.

Mwawasi said she had four children with the deceased.

However, Athman claimed that one child was born out of wedlock.

Meanwhile, there was a third woman also claiming to have been married to the deceased. Marlin Coram Pownall claimed that she started cohabiting with the deceased in 2011. She, too, said she converted to Islam and married him in 2011, and they had one child.

However, Pownall was also married to a foreigner. She told the court that her former husband deserted her for seven years. Thus, it was presumed they had parted ways.

The judges ruled that her marriage to Juma was null and void as she had not dissolved her previous one.

However, they found that Mwawasi and Pownall’s children are entitled to benefit from the estate as beneficiaries or dependents.