The Court of Appeal of Kenya has overturned a 2022 High Court ruling that had recognized abortion as a fundamental right.
In its decision delivered on Friday, April 24, the appellate court held that abortion is not a fundamental right under the Constitution, but rather an act that is generally prohibited, subject to specific exceptions.
The court ruled that while the Constitution guarantees the right to life from conception, abortion is only permissible under limited circumstances outlined in law.
“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.”
Court of Appeal Rules Abortion Not a Constitutional Right in Kenya
In its judgment, the court stated that termination of pregnancy may be allowed where, in the opinion of a trained health professional, there is a need for emergency treatment, the life or health of the mother is at risk, or where it is permitted by any other written law.
Outside these exceptions, the court noted that abortion remains restricted, with punitive provisions in place. It added that under Sections 158, 159, and 160 of the Penal Code, the prosecution must establish the element of unlawfulness in accordance with the requirements of those provisions.
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High Court Ruling
On October 6, 2025, a three-judge bench of the Court of Appeal of Kenya comprising Justices Gatembu Kairu, Grace Ngenye, and Kibaya Laibuta heard consolidated appeals challenging a 2022 High Court ruling on abortion rights.
The appeals—filed in the cases of Ann Kioko and Kenya Christian Professionals Forum & Another versus PAK & Others, and the State Law Office and the ODPP & others versus PAK and Salim Mohammed & Others—arose from the High Court decision in PAK & another v Attorney General & 3 others.
In that 2022 judgment, the High Court held that abortion is a fundamental right under the Constitution, while noting that the right is not absolute under Article 26(4).
The court also directed Parliament to enact legislation and policies to give effect to the constitutional provisions governing abortion.
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’s Roe v. Wade decision, which has since been overturned.
However, the respondents, represented by the Center for Reproductive Rights, submitted that the Court correctly interpreted Article 26(4).
They claimed that 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.
Further, 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.
