Court of Appeal Sets Aside High Court Judgement on Abortion and Reinstates Criminal Proceedings before the Magistrate Court
On Friday 24th April 2026, the Court of Appeal sitting in Malindi, comprising Justice S. Gatembu Kairu, Justice K.I. Laibuta and Lady Justice Grace Ngenye, delivered its judgment in the consolidated appeals; Civil Appeal No. E029 of 2022 (Ann Kioko and Kenya Christian Professionals Forum & 1 Other vs PAK & Others) and Civil Appeal No. E030 of 2022 (State Law and Director of Public Prosecutions & 2 Others vs PAK & Salim Mohammed & Others).
The consolidated appeals challenged the judgment and decree of Justice R. Nyakundi in PAK & another v Attorney General & 3 others [2022] KEHC 262 (KLR), where the High Court, among other findings, held that abortion is a fundamental right, though not absolute, in light of Article 26(4) of the Constitution of Kenya (COK) which provides that abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.
KELIN, jointly with Women’s Link Worldwide(WLW) and the Federation of Women Lawyers in Kenya (FIDA Kenya), participated in this appeal as friends of the court and highlighted the following key issues in our submissions before the court;
- the impact of restricted access to safe and legal abortion services on women’s right to reproductive health, particularly for survivors of sexual violence.
- The gaps in the legislative and regulatory framework that contribute to the prosecution of women and trained medical practitioners, who may refrain from providing services due to fear of arrest.
- Denial of access to legal abortion services results in gender-based discrimination, disproportionately affecting women and girls seeking sexual and reproductive health services.
In its determination, the Court of Appeal addressed whether abortion is permissible under Kenyan law, the circumstances under which it may be allowed, and whether it infringes on the right to life of the unborn child. The Court found that procuring an abortion amounts to depriving the unborn child of the right to life. However, it affirmed that access to safe and legal abortion remains permissible under the limited circumstances provided for under Article 26(4) of the COK.
The Court departed from the High Court determination and held that abortion is not a fundamental right in Kenya but is allowed only within the restricted constitutional parameters set out under Article 26(4) of the COK. On the issue of the criminal proceedings before the Senior Principal Magistrate’s Court in Kilifi against PAK and Salim Mohammed, the Court found that the High Court petition did not meet the threshold required to halt the prosecutions and that there was no sufficient basis to conclude that the proceedings amounted to an abuse of the legal process. The Court also acknowledged the amici submissions on the absence of a clear regulatory framework on abortion and the resulting challenges in access to safe abortion services. Consequently, the Court of Appeal allowed both appeals, set aside the judgment and decree of the High Court, and ordered that the criminal proceedings before the Senior Principal Magistrate’s Court at Kilifi be reinstated for hearing and determination on their merits.
We take note of the Court of Appeal’s decision and its interpretation of Article 26 of the COK. The decision highlights the continued importance of clarity in the legal and policy framework governing reproductive health services including access to safe and legal abortion.
For more information or enquiries contact:
Catherine Namulanda
Advocate for KELIN, FIDA-K and WLW
Karen C, Kuwinda Lane, Off Langata Road
P.O. Box 112 – 00202 KNH
Tel: 0790 111 578
Email: litigation@kelinkenya.org
