On 6 October 2025, a three-judge bench comprising Justice Gatembu Kairu, Lady Justice Grace Ngenye, and Justice Kibaya Laibuta heard the consolidated appeals in:
(i) Ann Kioko and Kenya Christian Professionals Forum & Another v PAK & Others Civil Appeal No. E029 of 2022; and
(ii) State Law Office and the ODPP & 2 Others v PAK, Salim Mohammed & Others Civil Appeal No. E030 of 2022.
These appeals challenge the 2022 High Court judgment PAK & another v Attorney General & 3 others [2022] KEHC 262 (KLR) in which the Court held that the right to abortion is a fundamental right, while emphasizing that this right is not absolute in light of Article 26(4) of the Constitution of Kenya (COK). The High Court further directed Parliament to enact legislation and policy to give effect to Article 26(4).
Appellants’ Arguments
The appellants argued that the High Court erred in law and fact by recognizing abortion as 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 held that abortion is illegal in Kenya except under the circumstances outlined in Article 26(4) of the COK.
They argued that the Constitution clearly provides that life begins at conception and that abortion is only permissible in specific, limited situations. According to the appellants, the trial court misinterpreted Article 26(4) by framing abortion as a fundamental right rather than a limitation of rights and by extending the right to privacy in a manner that excludes the rights of the unborn child. They also criticized the High Court’s reliance on foreign jurisprudence, including the U.S. Supreme Court decision in Roe v. Wade, which has since been overturned.
Respondents’ Arguments
The respondents, represented by the Centre for Reproductive Rights, supported the High Court’s decision. They submitted that the Court correctly interpreted Article 26(4). While the right to abortion is not absolute, criminalizing it entirely undermines other constitutional rights such as: privacy, dignity, and the right to the highest attainable standard of health.
They argued that Kenya’s restrictive legal framework and the absence of clear guidelines contribute to unsafe abortions, stigma, and denial of essential healthcare—amounting to violations of constitutional rights. The respondents therefore urged the Court of Appeal to dismiss the appeals and uphold the High Court’s judgment.
Participation of Amici Curiae
KELIN, Women’s Link Worldwide and FIDA-Kenya participated in the proceedings as joint amici curiae. Our submissions focused on:
- The implications of denying access to safe and legal abortion on women’s and girls’ health rights,
- The public health risks of unsafe abortion and,
- The State’s obligation to eliminate discrimination, including through access to reproductive health services.
The Law Society of Kenya (LSK) and the International Federation of Gynecology and Obstetrics (FIGO) also participated as the 4th and 5th amicus curiae, respectively.
Next Steps
With the hearing of both appeals concluded, the Court of Appeal will deliver its judgment on 27 March 2026. The outcome will provide important guidance on the interpretation of Article 26(4) of the Constitution and Sections 158 to 160 of the Penal Code. The judgement is expected to have significant implications for Kenya’s reproductive health legal framework.
For more information, please contact:
Catherine Namulanda
Advocate for Joint Amici Curiae
Karen C, Kuwinda Lane, Off Langata Road
P.O. Box 112 – 00202 KNH
Tel: 0790 111 578
Email: litigation@kelinkenya.org
