Any child born out of wedlock is entitled to benefit from the wealth left behind by their deceased parents, the Court of Appeal has said.
Article 53 of the constitution provides that every child has a right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour.
It goes further to state that the child has a right to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.
Justices Pauline Nyamweya, George Odunga and Kiarie Gatembu relied on these provisions to support their findings in a case in which one of the wives of a Mombasa businessman is seeking to have children of her two co-wives locked out from inheriting the deceased’s wealth on grounds they were born out of wedlock.
The first wife claimed she was the lawful wife to the deceased having been married through Islamic law on 4th August, 2006.
They were blessed with four children. These children, she said, were the rightful heirs to the estate of the deceased and not those born by the second and third wife.
She told the appellate judges that the second wife did not prove she was married to the deceased and that her four children were not heirs to the deceased since they were born before the deceased officiated his alleged marriage with the second wife.
The first wife argued that under Islamic law, illegitimate children cannot inherit the estate of their father; and that such children can only inherit from their mother.
But the bench declined to interfere with High Court Judge Onyiego’s finding that there existed a valid marriage between the second wife and the deceased.
They said any cultural practice that discriminates against children on the grounds of their parent’s marital status must be abhorred.
“To hold that those children born out of wedlock are not to benefit from the same estate would amount to unfair and unjustified discrimination,” they said.
The Court of Appeal Judges said they were unable to find anything to warrant creating a distinction between such children when it comes to their entitlement to the estate of their father.
“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,” they said
It was their view that the rights of the children must be distinguished from marital issues.
“Whereas a man and a woman who enter into a relationship that is not legally recognized as husband and wife, such as where there already exists a monogamous marriage by one of them, may not lay claims as regards the estate of the other upon death, the issues of such relationships ought to be treated differently from their parents,” said the Judges.
They explained 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 grounds of the marital status of the father and the mother cannot be allowed.
When the deceased died, he left behind a number of properties in Ukunda, Diani, Mtwapa, Lorries, cars, and several bank accounts with money.
What followed was a succession suit by the first wife.
Justice Onyiego, having handled the matter in March 2022, directed that the estate of Kitendo be shared in accordance with the Islamic Sharia law.
Specific details were to be worked on by Chief Kadhi after the DNA results of some of the children were submitted. Final distribution of assets to a wait DNA results and Kadhi’s distribution list.
He declared that the first and second wife are widows of the deceased and therefore beneficiaries entitled to a share of the estate in accordance with Islamic Sharia law.
He found the third wife not a beneficiary to the estate as she was not married to the deceased as alleged.
The fate of the three children sired by the second and third wives whose paternity is in dispute was subjected to a DNA test after extracting samples from their bodies.
Aggrieved, the first and third wife appealed. Some of the issues before the appellate court were whether Judge Onyiego was correct in finding that the second wife was validly married to the deceased at the time of his death and whether her children belonged to the deceased among other issues.
But the appellate Judges said that even if paternity was disputed, the affected parties were entitled to benefit from the deceased’s estate as dependents.
They said Onyiego made a mistake in directing that DNA samples be taken to determine paternity.
“In any case, the mode of taking DNA samples from the children whose paternity was disputed and comparing them with those of the children of the first wife whose samples themselves had not been compared with those of the deceased was a very unsatisfactory way of determining paternity,” they said.
They set aside that order and said all the children of the first, second and third wives are entitled to benefit from the estate of the deceased either as dependents or as beneficiaries to his estate.
They remitted the matter back to the High Court to determine the respective entitlements of the beneficiaries. The same is to be undertaken by any High Court Judge sitting in Mombasa other than Onyiego.
