The Attorney General & Another v PAK & Another Civil Appeal No E030 of 2022

Description

This is an appeal from the judgment of the High Court in PAK & Another v The Attorney General & 3 others (Constitutional Petition E009 of 2020) [2022] eKLR in which the High Court of Malindi affirmed the constitutional right to abortion, stating that there was a lacuna in the law that was leading to a lack of implementation and enforcement of the right to abortion. However, the judgment was appealed by the Attorney General and Kenya Christian Professional Forum before the Court of Appeal. KELIN, FIDA Kenya and Women Link Worldwide are serving as amicus curiae in the appeal.

Current Status

Updated April 24, 2026

On 24th April 2026 the Court of Appeal in Malindi delivered judgement in the consolidates appeals; Civil Appeal E029 OF 2022 Ann Kioko and Kenya Christian Professional Forum and 1 Other VS PAK and Others And Civil Appeal E030 of 2022 State Law and ODPP and 2 Other vs PAK and Salim Mohammed & Others.
The court determined that abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the Constitution expressly prohibits it but provides exceptions in limited circumstances when it may be permissible. In effect, procuring an abortion is tantamount to depriving the unborn child the right to life. Abortion is nonetheless permissible in the restrictive circumstances contemplated in sub-articles 26(3) and (4) of the Constitution. 
The restraint on further investigations and prosecution of the respondents in the two criminal cases in Kilifi Senior Principal Magistrates Court Criminal case numbers 395 of 2019 and 396 of 2019 were unfounded in law. The very fact that the respondents lodged a constitutional reference alleging breach of various constitutional rights could not, of itself, stand in the way of proper investigation, charge and prosecution of the alleged offences in issue.
Consequently the court made the following orders: 
a) 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;
(b) the proceedings in the Senior Principal Magistrate’s Court at Kilifi in Criminal Case No. 395 and No. 396 of 2019 be and are hereby reinstated for hearing and determination on their merits; and
(c) in view of the nature of the public interest in the two consolidated appeals, we hereby direct that each party bears their own costs. 

Previous Updates

Updated April 10, 2026

Judgement will be delivered on Friday 24 April 2026.

Updated January 31, 2025

Awaiting Court directions on the hearing of the Appeal.

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