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Kenya Court of Appeal has overturned a landmark 2022 High Court ruling that had recognized access to abortion as a constitutional right, declaring that abortion is not a fundamental right under the country’s constitution.
The ruling, delivered on April 24, 2026, in Malindi, sets aside the earlier High Court judgment and reinstates criminal proceedings linked to a 2019 abortion-related case.
The three-judge bench comprising Justices S. Gatembu Kairu, Dr. K. I. Laibuta and Grace W. Ngenye-Macharia ruled that the earlier High Court decision dated March 24, 2022, be set aside in its entirety.
The court stated:
“Having scrutinised the records in the two consolidated appeals… we find that the two consolidated appeals succeed and are hereby allowed.”
As part of the orders, the judges directed that:
“The judgment and decree of the High Court of Kenya at Malindi dated 24th March 2022 be and are hereby set aside.”
The case arose from consolidated appeals filed by multiple parties, including the Kenya Christian Professionals’ Forum and the Attorney General of Kenya, challenging the earlier ruling that had broadened access to abortion services.
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Court Affirms Limited Constitutional Exceptions
In its decision, the appeals court stated that Kenya’s constitution restricts abortion except under narrowly defined circumstances.
The judges held that abortion is only permissible when, in the opinion of a trained health professional, there is a risk to the life or health of the mother or when emergency treatment is required.
Earlier interpretations that framed abortion as a fundamental right were rejected, with the court emphasizing constitutional protections of life beginning at conception.
The judges ruled:
“Abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the Constitution expressly prohibits it but provides exceptions in limited circumstances.”
Criminal Proceedings in 2019 Case Reinstated
A major consequence of the ruling is the reinstatement of criminal cases previously stopped by the High Court.
The appeals court ordered that:
“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.”
The criminal proceedings stem from a 2019 case involving a teenage girl who suffered complications following an abortion.
The High Court had earlier quashed the charges in 2022, but the appeals court has now directed that the matter proceed through the judicial process.
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Public Interest Considerations and Legal Costs
In acknowledging the public interest nature of the case, the court ruled that each party would bear its own legal costs.
The judges noted:
“In view of the nature of the public interest in the two consolidated appeals, we hereby direct that each party bears their own costs.”
The appeals involved multiple respondents and amici curiae, including the Law Society of Kenya, FIDA Kenya, and International Federation of Gynecology and Obstetrics.
The LSK President Charles Kanjama, said the decision of the court of appeal had “restored constitutional balance which had been distorted by the high court ruling.”
“That means if somebody is accused of an offense under Sections 158, 159, or 160 of the penal code, as happened in this case, they have to provide evidence to show that they were not engaged in the crime of abortion on demand,” Kanjama told The Press.
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Malindi Court of Appeal has overturned a 2022 High Court ruling that expanded abortion access
PHOTO/Malindi Court of Appeal
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