The Court of Appeal has reversed a High Court decision that had expanded the interpretation of abortion rights in Kenya, ruling that termination of pregnancy does not amount to a constitutional right and is only allowed under strict legal conditions.
In a judgment delivered on Friday, April 24, the appellate court held that abortion remains largely prohibited in law, except in specific situations where a trained health professional confirms that emergency care is needed, the life or health of a mother is in danger, or where another written law permits it.
The judges maintained that the Constitution protects life from the moment of conception, and therefore abortion cannot be treated as an open-ended right under the law.
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“Having scrutinized the records in the two consolidated appeals, the written and oral submissions by respective counsel for the parties, the respective briefs by learned counsel for amici curiae, the cited judicial authorities and the law, we find that the two consolidated appeals succeed and are hereby allowed,” the court ruled.
“Consequently, the judgment and decree of the High Court of Kenya at Malindi (R. Nyakundi, J.) dated 24th March 2022 be and are hereby set aside.”
The court further clarified that termination of pregnancy is only lawful within the limits set out under Article 26(4) of the Constitution and supporting legal provisions. It added that outside those conditions, abortion remains subject to criminal liability under Sections 158, 159, and 160 of the Penal Code, where prosecution must prove unlawfulness as required by law.
This decision nullifies a 2022 High Court judgment that had treated abortion as a fundamental right under the Constitution.
The earlier court had also stated that while the right was not absolute, it could be considered within the broader protections under Article 26(4), and had directed Parliament to establish clear legal and policy frameworks to guide its implementation.
The matter reached the Court of Appeal through consolidated cases heard on October 6, 2025, by Justices Gatembu Kairu, Grace Ngenye, and Kibaya Laibuta. The appeals challenged the earlier ruling in PAK & another v Attorney General & 3 others.
The disputes were filed by Ann Kioko and Kenya Christian Professionals Forum & Another versus PAK & Others, as well as the State Law Office and the ODPP & others versus PAK and Salim Mohammed & Others.
Those appealing the High Court ruling argued that it misread the Constitution by elevating abortion to a fundamental right. They relied on the 2019 decision in Federation of Women Lawyers (Fida – Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 others (Amicus Curiae) [2019] KEHC 6928 (KLR), where a five-judge bench had ruled that abortion is illegal in Kenya except in narrowly defined circumstances under Article 26(4).
They also maintained that the Constitution recognizes life from conception and that abortion is only allowed in limited cases provided by law. The appellants further argued that the High Court wrongly expanded the right to privacy in a way that excluded protection of unborn life, and criticized reliance on foreign rulings such as the United States Supreme Court Roe v. Wade decision, which has since been overturned.
On the other side, the respondents, represented by the Center for Reproductive Rights, defended the High Court decision, saying it correctly interpreted Article 26(4).
They argued that although abortion is not absolute, a blanket criminal ban interferes with rights such as privacy, dignity, and access to the highest attainable standard of health.
They further told the court that restrictive laws, unclear guidelines, and fear of prosecution have contributed to unsafe procedures, stigma, and barriers to healthcare access, which they said amount to violations of constitutional protections.
They urged the Court of Appeal to uphold the High Court judgment and dismiss the appeals.
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