BY SAM ALFAN .
BY SAM ALFAN.
Senior Counsel Ahmednasir Abdullahi has faulted the Court of Appeal over a judgement on Muslim law and children born out of wedlock.
In a post made on X formerly known as Twitter, Ahmednasir said Justices Gatembu Kairu, Pauline Nyamweya and George Odunga plainly got it wrong and failed to apply Article 24(4) of the constitution in their decision.
In the decision, the judges said despite the religion abhorring sex before marriage, it is unfair to sideline children born from such escapades from inheritance, 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.
The veteran lawyer pointed out that Article 24(4) of the constitution that reads that “The provisions of this chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance”.
Ahmednasir said that Judges and many Kenyans should be taught to appreciate the personal law of Muslims and further must be taught the special history of NFD and part of the Coast. The 10 mile Coastal strip and NFD joined Kenya at independence in 1963 and were rotating in different political axis.
According to the veteran lawyer, Jurisprudentially Myopic decision like the one delivered by the Court of Appeal was an affront to Islamic personal law and potentially can inflame passions.
He vowed to escalate the matter to the Supreme Court.
The lawyer said that the shocking superficiality (bordering on utter contempt) with which the court treats Muslim personal and that it equates it to “cultural practices” was in his humble submission blasphemous beyond imagination!
“To borrow a phrase from justice Antonin Scalia, the Court needlessly engaged in a “constitutional jiggery-pokery” interpretation,” he said.
In the judgement, the judges said they were of the view that the rights of a child supersede one’s marital status.
The court held 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.
The judges said that in the case, they have been urged by the appellant to uphold an Islamic Law that provides that children born out of wedlock are not entitled to benefit from the estate of their deceased’s father.
“No rational justification has been placed before us and we are unable t the dished to find any to warrant creating a distinction between such children when it comes to their entitlement to the estate of the father,” said appellate Judges.
They added that 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.
“It is our view that the rights of the children must be distinguished from marital issues,” said the judges.
The three-judge Bench said whereas a man and a woman who enter into a relationship that is not legally recognised as husband and wife, such as where there already exist a monogamous marriage by one of them, may not lay claims as regards the estate of the other upon death, children from such relationships ought to be treated differently from their parents.
“It is our view that culture that is harmful to a child in the sense that it 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,” said the judges.
