The Court of Appeal of Kenya has overturned a 2022 High Court ruling on abortion, stating that abortion is not a fundamental right under the Constitution.
In a judgment delivered in Malindi on Friday, a three-judge bench said abortion remains illegal in Kenya, except in limited cases allowed by law.
The judges Gatembu Kairu, Kibaya Laibuta and Grace Ngenye ruled that termination of pregnancy is only permitted when a qualified doctor determines that the life or health of the mother is at serious risk.
“In effect, abortion is not a fundamental right guaranteed under the Constitution,” the court said in its ruling.
This issue arose due to an appeal filed against the previous High Court judgment that provided greater access to safe abortions through the interpretation of the right to health.
It was ruled that Article 26 of the Constitution provides that the right to life is present from conception onwards, and this must be taken into account when determining whether or not abortion is legal.
However, the court pointed out that the Constitution does not wholly outlaw abortion. According to the Constitution, abortion can be carried out during emergencies, for the sake of saving the life or health of the woman, or if authorized by any other law.
As a result of the court ruling, the criminal cases that had been halted by the High Court’s ruling were instructed to be reopened. The criminal cases being held at a Kilifi court will now be determined.
This case ruling is bound to affect abortion regulations in Kenya in terms of the application of laws relating to abortion.
As per the report by Ministry of Health Kenya (2025), there were over 792,000 cases of induced abortions in the period between 2003 and 2004. The report indicated that the majority of the affected individuals were either married or had a boyfriend, and several of them had given birth.
