Kenya’s Court of Appeal has overturned a 2022 High Court decision that recognised access to abortion as a fundamental constitutional right, reigniting one of the country’s most contested legal and social debates and pointing the dispute squarely toward the Supreme Court.
The ruling, delivered on Friday 25 April 2026 in Malindi by a three-judge bench comprising Justices Gatembu Kairu, Kibaya Laibuta, and Grace Ngenye, declared that abortion is not a right guaranteed under Kenya’s 2010 Constitution. The court held that the Constitution expressly prohibits abortion while allowing limited exceptions, primarily when a trained health professional determines that the life or health of the mother is at risk.
“In effect, abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the constitution expressly prohibits it but provides exceptions in limited circumstances where it may be permissible,” the three judge bench stated.
The Case That Triggered the Appeal
The appeal was rooted in a 2022 case involving a teenager who went to hospital with pregnancy complications. A doctor who examined her determined she had lost the pregnancy and provided emergency post-abortion care. The doctor and patient were acquitted by the High Court, which at the time ruled that access to abortion was a fundamental right under the Constitution, declaring the arrest and prosecution of women and healthcare providers unconstitutional.
The Kenya Christian Professionals’ Forum and the Attorney General appealed that 2022 High Court decision. Friday’s Court of Appeal ruling sets aside the High Court’s judgement and orders the original criminal cases to proceed on their merits.
What the Law Says and Where It Conflicts
Kenya’s legal framework on abortion has long been defined by a tension between two instruments. The Penal Code criminalises abortion, imposing a sentence of up to 14 years in prison for attempting or procuring an abortion. The 2010 Constitution, however, permits abortion when a trained health worker recommends it as emergency treatment to save the life or health of the mother.
That tension has played out in court rulings for over a decade. As Khusoko previously reported, the 2019 FIDA-Kenya v. Attorney General ruling affirmed the constitutional right to abortion for health risks including sexual violence, and declared the 2013 withdrawal of abortion safe-service guidelines unconstitutional. The 2022 PAK and Salim Mohammed v. Attorney General ruling went further, declaring arbitrary arrests of patients and providers illegal.
Friday’s Court of Appeal decision walks back that direction, reaffirming the validity of criminal penalties under the Penal Code for unlawful abortions outside of the narrow circumstances the Constitution permits.
The global human rights organisation the Center for Reproductive Rights termed the ruling a “setback” and confirmed it would move to the Supreme Court of Kenya to challenge the decision. The Washington Post
Why This Ruling Matters for Kenyan Families
The stakes of this legal battle are not abstract. Research published in 2025 by the African Population and Health Research Centre (APHRC), the Ministry of Health, and the Guttmacher Institute found that an estimated 792,694 induced abortions took place in Kenya in 2023, a rate of 57 per every 1,000 women aged 15 to 49.
Critically, the data dismantles the assumption that abortion is primarily a concern for young, unmarried women. 78.6% of those abortions — approximately 623,058 cases — were among married women. Economic pressures, career aspirations, and child-spacing decisions were the leading reasons cited. Women aged 24 to 34 accounted for the largest share at 41.8%.
The same report found that less than 20% of Kenya’s primary healthcare facilities meet the basic standards required to deliver comprehensive post-abortion care. Approximately 2,600 women and girls die annually from unsafe abortions, with a further 21,000 requiring hospitalisation.
Friday’s ruling, by reinstating the criminal burden of proof on anyone accused under the Penal Code, risks deepening the gap between what the law permits in theory and what women can access in practice. Healthcare providers who already operate cautiously for fear of prosecution may become even more reluctant to deliver care that the Constitution technically allows.
The Road to the Supreme Court
The Court of Appeal ruling sets up a legal clash that is likely to be appealed again to the Kenyan Supreme Court, khusoko making this far from the final word on the matter.
Kenya is also a signatory to the Maputo Protocol, the first international treaty to recognise abortion as a human right under specific circumstances including rape, incest, and threats to maternal health. As Khusoko has reported, Kenya recorded a reservation on the Protocol’s abortion provisions at signing, limiting its binding force — a position advocacy groups including the Centre for Reproductive Rights have long sought to reverse.
The Supreme Court will ultimately be asked to determine whether the Constitution’s limited exceptions for abortion create a right that flows from those exceptions, or whether the prohibition is the primary position and the exceptions are narrow carve-outs. That distinction has profound implications — not just for legal outcomes in individual cases, but for whether Kenya’s healthcare system can deliver the maternal emergency services the Constitution itself envisages.
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Editorial note: This story will update as the Supreme Court appeal process develops. Reporters covering this story should also monitor the Africa Tech Policy Summit proceedings in May, where digital rights and gender policy intersect with reproductive rights advocacy.
