Kenya's Court of Appeal has ruled that abortion is not a fundamental right under the constitution, overturning a 2022 High Court decision. A three-judge bench in Malindi permitted terminations only when a qualified doctor determines a serious risk to the expectant mother's life.
The Court of Appeal delivered its judgment in Malindi on April 24, 2026, overturning the High Court of Malindi's decision dated March 24, 2022, by Justice R. Nyakundi. Justices Gatembu Kairu, Kibaya Laibuta, and Grace Ngenye ruled that abortion remains illegal except in circumstances permitted by the constitution.
The decision relies on Article 26 of the constitution, which states the right to life begins at conception. "In effect, abortion is not a fundamental right guaranteed under the Constitution," the judges stated. The court noted the constitution does not impose an absolute ban but allows narrow exceptions, such as emergency treatment, risk to the mother's life or health, or as permitted by other laws.
The ruling stems from consolidated appeals by the state and other parties challenging the 2022 decision that expanded access to safe and legal abortion services. The appellate court reinstated criminal proceedings in the Senior Principal Magistrate’s Court at Kilifi in Criminal Case Nos. 395 and 396 of 2019 for hearing and determination on merits.
A 2025 Ministry of Health report found that between 2003 and 2004, over 792,000 induced abortions occurred, equating to 57.3 per 1,000 women aged 15-49. About 80 percent of those involved were married or cohabiting, with 65 percent having previously given birth.
