Kenya’s Court of Appeal has overturned a landmark 2022 High Court decision that had expanded access to abortion, ruling that termination of pregnancy is not a constitutional right and is only permitted under limited conditions set out in the Constitution.
In a judgment delivered in the coastal town of Malindi, a three-judge bench held that abortion remains restricted under Kenyan law and can only be carried out when, in the opinion of a trained health professional, there is need for emergency treatment, or when the life or health of the mother is in danger.
The decision reverses a widely cited High Court ruling in PAK and Salim Mohammed v Attorney General and others, which had found that access to abortion services could be protected under constitutional guarantees to health, dignity and freedom from cruel, inhuman and degrading treatment.
In setting aside that ruling, the Court of Appeal found that the Constitution does not establish a general right to abortion.
“The Constitution of Kenya does not confer a right to abortion,” the judges said, adding that termination of pregnancy is only lawful within the strict framework provided under Article 26(4).
Article 26 states that life begins at conception and permits abortion only if, in the opinion of a trained health professional, there is need for emergency treatment, if the life or health of the mother is in danger, or if allowed by any other written law.
By narrowing the interpretation adopted by the High Court, the appellate court effectively restores a stricter reading of the Constitution, aligning it more closely with provisions in the Penal Code that criminalize abortion outside the permitted exceptions.
While the Constitution allows abortion in limited circumstances, sections 158 to 160 of the Penal Code impose criminal penalties for unlawful termination of pregnancy, creating uncertainty among healthcare providers about when services can be lawfully offered.
The case has drawn strong interest from both abortion reproductive rights advocates and faith-based organizations, reflecting deep divisions over abortion in Kenya.
Christian legal groups, including the Kenya Christian Professionals Forum, were among those who challenged the 2022 High Court decision. In court filings, the organization argued that the Constitution protects life from conception and does not provide for abortion on demand.
“The Constitution does not provide for abortion on demand,” the group said in its submissions, adding that the High Court had expanded access beyond what is legally permitted under Article 26.
The organization also argued that the earlier ruling undermined the sanctity of life and introduced legal ambiguity around the limits of abortion in the country.
Following the appellate decision, faith-based advocates framed the ruling as a restoration of constitutional order and a reaffirmation of the right to life. They said the judgment provides clarity by reinforcing existing legal limits rather than creating new rights through judicial interpretation.
Pro-abortionReproductive health organizations, however, warned that the ruling could have far-reaching consequences for access to safe abortion services.
Rights aAdvocates say the 2022 High Court judgment had provided critical protections for women and healthcare providers, particularly in cases involving rape, incest or severe health risks. They argue that rolling back that interpretation may increase the risk of unsafe abortions.
Health experts have long pointed to unsafe abortion as a contributor to maternal illness and death in Kenya, particularly in settings where access to safe and legal services is limited or unclear.
The Court of Appeal’s ruling does not remove the constitutional exceptions that allow abortion under specific medical circumstances. However, it emphasizes that those exceptions must be interpreted narrowly and within the limits of the law.
Legal analysts say the judgment signals that any broader expansion of abortion access would need to come through legislative reform rather than court decisions.
“This is a question the court is effectively returning to Parliament,” said one Nairobi-based legal analyst familiar with the case. “The judiciary is saying the Constitution sets limits, and it is not for the courts to expand them beyond what is written.”
The ruling is expected to influence how healthcare providers interpret the law, particularly in determining when a pregnancy poses a sufficient risk to a woman’s life or health to justify termination.
It may also shape future policy debates around reproductive health, including calls for clearer guidelines or amendments to existing laws.
The case is widely expected to proceed to the Supreme Court, where a final determination could be made on the scope of abortion rights under the Constitution.
Until then, the Court of Appeal decision stands as the most authoritative interpretation, narrowing the legal space for abortion while preserving limited exceptions under specific medical conditions.
