What Court of Appeal ruling on abortion means for Kenyan women
Thousands of women lose their lives every year in Kenya to botched backstreet abortions. Rising cases are now colliding with legal uncertainty as courts redefine reproductive rights protections.
What you need to know:
- A landmark abortion case in Kenya now raises new fears over prosecution and access to care.
- Court ruling shifts legal burden to women and providers navigating restrictive abortion laws in Kenya.
When the High Court in Malindi was petitioned on November 30, 2020, the case centred on an 18‑year‑old student from Kilifi County.
Now, it has grown into Kenya’s consequential legal battle on abortion. PAK, as identified in court documents, had been a high school student when she became pregnant from a relationship with a fellow student.
In September 2019, she experienced severe pain and bleeding, and sought treatment at a local clinic. On September 19, Clinical Officer Salim Mohammed examined her, diagnosed a spontaneous abortion, and performed a manual vacuum evacuation. Two days later, police raided the clinic, confiscated her medical records, and arrested PAK, the clinician, and two female staff members who were cleaners.
By September 23, PAK was charged with procuring an abortion under the Penal Code provision that criminalises the act at the Senior Principal Magistrate’s Court in Kilifi. Salim faced charges under another section of the Penal Code that makes it illegal to facilitate an abortion. PAK and Salim petitioned the High Court in Malindi.
In their petition, they argued that “the arrest, detention and prosecution of patients seeking post‑abortion care services are cruel, inhumane and degrading treatment” and violate constitutional protections. They further claimed that “arresting and prosecuting women seeking abortion care services from a trained health professional … is unlawful and a violation of the Constitution”.
In March 2022, the High Court ruled that the sections of the Penal Code under which they were arrested and charged were inconsistent with the Constitution. It also declared that “the right to abortion is fundamental”, though limited by the Constitution. The court urged Parliament to enact a clearer legal framework on abortion. It said the way authorities investigated, arrested, and prosecuted PAK and the clinical officer was irregular from the start.
Because the cases were brought under sections 158, 159 and 160 of the Penal Code, which criminalise abortion, the judge found the process unlawful, issued a writ of certiorari, a legal order that stops flawed proceedings, and quashed the charges against the petitioners.
But a religious group and state actors were aggrieved. The two sets of appellants proceeded to the Court of Appeal in Malindi. In the first appeal were the Kenya Christian Professionals Forum, Anne Kioko, and Catherine Nyambura Kegeni. The second appeal was filed by state actors, including the Attorney-General, the Director of Public Prosecutions, the Inspector General of Police, and the Senior Principal Magistrate in Kilifi. The appeals were consolidated.
They argued that “the learned judge erred in law by holding that the right to abortion is a fundamental right,” insisting that abortion should instead be interpreted strictly as a limitation to the right to life of the unborn.
A week ago, on April 24, the appellate court overturned key parts of the earlier decision. It stated that although the Constitution guarantees the fundamental right to life from conception, abortion is nonetheless permissible in restrictive circumstances.
The court emphasised that criminal liability still applies, noting that to establish offences under sections of the Penal Code, which criminalise abortion, the prosecution would have to establish the element of unlawfulness. It then reinstated the criminal proceedings against PAK and the clinical officer.
The ruling now leaves a pressing question: What happens to women who meet the restrictive conditions for abortion under the Constitution? From the data, the women are living this reality. In 2012, a study by the Ministry of Health, the African Population and Health Research Centre, and the Guttmacher Institute reported an estimated 464,690 induced abortions in Kenya.
Findings
By 2025, updated findings showed that 792,694 induced abortions occurred in 2023, translating into 57.3 abortions per 1,000 women of reproductive age (15–49) and an abortion ratio of 48.1 per 100 live births. With the ruling reversed, reproductive rights advocates warn of a chilling effect.
Prudence Mutiso, a senior legal adviser for Africa at the Centre for Reproductive Rights, told NTV’s Fixing the Nation last Thursday that the decision “shifts the burden from the state to individuals who are arrested and prosecuted for having lawful abortions within Article 26(4)”.
This article provides four circumstances under which abortion may be procured, including when, in the opinion of a trained health professional, there is need for emergency treatment, when the life or health of the mother is in danger, or when permitted by any other written law.
Prudence warned that the overturn forces women and providers back into the criminal justice system. “The court is saying, go back to the criminal trial process and vindicate your rights before the magistrate’s court,” she said.
Of consequence is the fear among women seeking abortion, even when they rightfully qualify under the conditions set out in the Constitution, she noted. She says they will now proceed to the Supreme Court to seek clarity. “We would want the Supreme Court to intervene and clarify what lawful abortion means, and whether abortion is a reproductive healthcare service and a fundamental human right.”
