Court of Appeal overturns ruling allowing women to procure abortion
By Zipporah Ngwatu, April 25, 2026A court of appeal has overturned a judgment delivered by Judge R. Nyakundi at the High Court of Malindi on March 24, 2022, declaring that women have a right to procure abortion.
The matter stems from a case where a minor known as PAK at Ganze Location in Ganze Sub-county within Kilifi County on September 19, 2019, administered drugs to herself, which led to her miscarriage.
PAK, a 17-year-old, rushed to the hospital within the same region with severe pain and bleeding and was later arrested in her hospital bed alongside a clinician who provided post-abortion care.
The two were later arraigned and charged before Kilifi Senior Principal Magistrate J. M. Kituku with the offence of procuring abortion contrary to section 159 of the Penal Code.
A three-judge bench sitting at the Malindi Court of Appeal overturned Judge R. Nyakundi’s judgment that affirmed that access to abortion was a constitutional right.
Judges Gatembu Kairu, K. Laibuta and Ngenye Macharia, on Friday, April 24, 2026, faulted the orders issued by the learned judge quashing the criminal proceedings and barring further investigations on the matter.
The bench ruled that the constitution guarantees the fundamental right to life from conception and that, in effect, procuring an abortion is tantamount to depriving the unborn child of the right to life.
Notably, the judges noted that abortion is only permissible if, in the opinion of a trained health professional, there is a need for emergency treatment so that the life or health of the mother is in danger or if permitted by any other written law.
They further quashed the High Court orders that declared the right to procure an abortion.
“The judgment and decree of the High Court of Kenya at Malindi (R. Nyakundi, J.) dated March 24, 2022, be and are hereby set aside,” the bench ruled.
The appeal court has also reinstated the criminal prosecution of PAK and the clinician who helped her when she went to the health facility in pain and bleeding.
“The proceedings in the Senior Principal Magistrate’s Court at Kilifi in criminal cases Nos. 395 and 396 of 2019 be and are hereby reinstated for hearing and determination on their merits,” the judges added.