Kenya dispatch: Court of Appeal overturns 2022 High Court abortion ruling – JURIST

Griffins Abuora is a Kenya School of Law student based in Kisumu, where he reports on legal, policy, and human rights developments in Kenya for JURIST.

On 24^th April 2026, Kenya’s Court of Appeal sitting in Malindi delivered a landmark judgment that reshaped the country’s abortion jurisprudence, firmly holding that abortion is not a fundamental right under the Constitution. The three-judge bench bringing together Justices Gatembu Kairu, Grace Ngenye Macharia, and Kibaya Laibuta allowed consolidated appeals that had been argued earlier on 6^th October 2025, overturning a controversial High Court decision rendered on 24^th March 2022.

The dispute traces back to the High Court case of PAK & another v Attorney General & 3 others, where the court had found that access to abortion fell within constitutional protections, particularly under rights to health, dignity, and freedom from cruel treatment. That ruling arose from a sensitive factual background involving a teenager who suffered pregnancy complications and received emergency post-abortion care, prompting the arrest of a minor—referred to in court documents by initials—and a broader constitutional challenge. The High Court’s position effectively expanded reproductive rights, directing the State to develop a clearer legal and policy framework.

However, dissatisfied parties, including the Kenya Christian Professionals Forum, the State Law Office and others filed appeals, arguing that the High Court had misinterpreted Article 26 of the Constitution. They contended that life begins at conception and that abortion could only be justified under narrowly defined exceptions.

In its 24^th April 2026 decision, the Court of Appeal adopted that narrow reading. The judges emphasized that Articles 26(1) and (2) protect the right to life from conception, and that termination of pregnancy generally violates that right. They clarified that abortion is only permissible in limited circumstances: where, in the opinion of a trained health professional, emergency treatment is necessary, the life or health of the mother is in danger, or another written law permits it.  By setting aside the High Court judgment, the appellate court reinstated a stricter constitutional and statutory framework, including the continued relevance of Penal Code provisions criminalizing unlawful abortion.

The ruling has triggered sharp and immediate reactions across Kenya. Religious and conservative groups welcomed the decision as a reaffirmation of the sanctity of life, while human rights organizations and medical professionals criticized it as a setback for reproductive health rights. Advocacy groups, including the Center for Reproductive Rights, have already signaled plans to escalate the matter to the Supreme Court, warning that the judgment could endanger access to emergency care and deepen stigma around reproductive health services.

Among the public, reactions have been deeply divided, with social media reflecting a polarized national debate between moral, legal, and public health perspectives. Some Kenyans view the judgment as constitutionally faithful, while others see it as regressive, particularly in light of data linking unsafe abortions to maternal mortality.

The implications are profound. Legally, the decision narrows the scope of reproductive rights and reasserts judicial deference to constitutional text over broad interpretation. Practically, it places healthcare providers under heightened scrutiny and may deter women from seeking critical medical care. Politically and socially, it sets the stage for a likely Supreme Court showdown, ensuring that the question of abortion rights in Kenya remains unsettled and intensely contested.

Opinions expressed in JURIST Dispatches are solely those of our correspondents in the field and do not necessarily reflect the views of JURIST’s editors, staff, donors or the University of Pittsburgh.