Kenyan Court of Appeal Reverses Previous Abortion Decision, Rejects Fundamental Right Status

Kenya’s Court of Appeal has issued a significant decision regarding abortion regulations, reversing a previous High Court judgment that had interpreted the Constitution as providing more extensive safeguards for reproductive health rights. During the judgment rendered in Malindi on Friday, April 24, a panel of three justices determined that pregnancy termination continues to be prohibited in Kenya, with exceptions only under specific conditions permitted by the Constitution. The court specified that pregnancy termination is authorized only when a qualified medical professional determines that the expectant mother faces a substantial risk to her life. This outcome resulted from combined appeals brought by the government and other entities, which contested the 2022 High Court decision that had broadened access to secure and lawful abortion services based on constitutional entitlements and deficiencies in current legislation. Consequently, the court determined that pregnancy termination constitutes the killing of an unborn child. “Essentially, abortion does not qualify as a fundamental right protected by the Constitution,” stated a portion of the judgment authored by Justices Gatembu Kairu, Kibaya Laibuta, and Grace Ngenye. The judges based their analysis on Article 26 of the Constitution, emphasizing that the right to life commences at conception, and that this principle holds considerable legal importance when evaluating the legality of pregnancy termination. Simultaneously, the Court recognized that the Constitution does not establish a complete ban, but rather establishes narrowly defined circumstances under which abortion may be legally permissible. According to Kenyan legislation, these exceptions encompass emergency medical care, danger to the mother’s life or well-being, or situations authorized by other statutory provisions. Adhering to this interpretation, the appellate court restored the original proceedings, instructing that the cases be considered and adjudicated based on their merits by the trial court. “Therefore, the judgment and decree of the High Court of Kenya at Malindi (R. Nyakundi, J.) dated 24th March 2022 are hereby annulled. The proceedings in the Senior Principal Magistrate’s Court at Kilifi in Criminal Case Nos. 395 and No. 396 of 2019 are reinstated for examination and resolution based on their substance,” the justices ruled. A 2025 report by the Ministry of Health documented that between 2003 and 2004, over 792,000 instances of induced abortions took place nationwide, equating to 57.3 abortions per 1,000 women aged 15 to 49 years. Notably, approximately 80 percent of those who sought these services. Among them, 65 percent had previously given birth, with 32 percent having delivered at least two or three children.