KENYA: Court of Appeal rules abortion violates child’s right to life

On Friday, April 24th, the Kenyan court of appeal reiterated that abortion denies a child their right to life as guaranteed in the constitution. “In effect, abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the constitution expressly prohibits it but provides exceptions in limited circumstances where it may be permissible,” a section of the ruling states. 

Abortion is a criminal offence in Kenya, carrying a sentence of up to 14 years in prison for attempting or procuring an abortion. Under article 26(4) of the Kenyan constitution, abortion is not permitted, “unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.”

Abortion is not a fundamental right guaranteed under the Constitution

The decision comes after the 2022 ruling in PAK and Salim Mohammed v. Attorney General et al., concerning the case of a minor known as ‘PAK’ and the medical professional who treated her, Salim Mohammed.

As reported in Harvard Law Review, “On September 19, 2019, “PAK,” a pregnant minor, began experiencing pregnancy complications in Ganze Location in Kilifi County in Kenya. Seeking care for the pain and bleeding, PAK visited Chamalo Medical Clinic. She was attended to by Salim Mohammed, a licensed clinical physician, who performed a manual evacuation after determining that she had suffered a spontaneous loss of her pregnancy.” 

Notably, it was alleged that PAK self-administered drugs in order to induce an abortion, and this was the reason for her seeking medical attention at Chamalo Medical Clinic. The self-administration of any substance with the intention of ending a pregnancy by ending the life of the unborn child is illegal under section 159 of the Kenyan Penal Code. PAK was therefore arrested. Mohammed was also arrested, for “procuring abortion” (contrary to section 158 of the Penal Code) and “supplying drugs to procure abortion” (contrary to section 160 of the Penal Code). 

After significant legal proceedings, High Court Judge Reuben Nyakundi, writing for the court, released a ruling that found abortion care to be a fundamental right under the Constitution of Kenya.

On April 24th 2026, the Court of Appeal produced a 44-page judgment wherein the ruling made by Judge Nyakundi was set aside. The focus was on the central truth of the case regarding PAK and Mohammed: whether PAK presented with a natural miscarriage or whether she had induced an abortion. The truth, they argued, could only be determined through a criminal trial. Subsequently, the criminal case against PAK and Mohammed had been restarted. 

The Kenyan court, in the meantime, has reaffirmed the right to life of the unborn child. 

Comment: Women are all-too-often driven to feel that abortion is a solution by a society that fails to protect both mother and child. However, legalising abortion simply takes away the right to life of the child, and ignores women’s needs and society’s responsibilities.  It is good to see that the Kenyan court upholds the right-to-life of the most vulnerable human beings, and the express prohibition of abortion.