Court of Appeal Overturns 2022 Abortion Ruling, Says Abortion Not a Fundamental Right

Court of Appeal Overturns 2022 Abortion Ruling, Says Abortion Not a Fundamental Right

The Court of Appeal of Kenya has issued a landmark ruling on abortion laws, overturning a 2022 High Court decision that had been widely interpreted as expanding access to reproductive health services.

In a judgment delivered in Malindi on Friday, April 24, a three-judge bench comprising Gatembu Kairu, Kibaya Laibuta, and Grace Ngenye ruled that abortion is not a fundamental right under the Constitution of Kenya.

The appellate court clarified that termination of pregnancy remains illegal except under narrowly defined circumstances provided for in law. Specifically, the court noted that abortion may only be permitted where a qualified medical practitioner determines that there is a serious risk to the life or health of the expectant mother.

“In effect, abortion is not a fundamental right guaranteed under the Constitution,” the judges stated in their ruling.

The decision followed consolidated appeals filed by the State and other parties challenging the earlier High Court judgment, which had interpreted constitutional provisions as allowing broader access to safe and legal abortion services.

In its reasoning, the court anchored its decision on Article 26 of the Constitution of Kenya 2010, which provides that the right to life begins at conception. The judges held that this principle carries significant legal weight in determining the legality of terminating a pregnancy.

At the same time, the court emphasised that the Constitution does not impose an absolute ban on abortion but instead allows limited exceptions. These include cases of emergency treatment, where the life or health of the mother is at risk, or where permitted under other written laws.

The ruling further reinstated criminal proceedings that had been halted following the 2022 High Court decision. The appellate court directed that the cases be heard and determined on their merits by the trial court.

“Consequently, the judgment and decree of the High Court of Kenya at Malindi… are hereby set aside. The proceedings… are reinstated for hearing and determination on their merits,” the bench ruled.

The decision is expected to have far-reaching implications for reproductive health policy, legal practice, and access to medical services in Kenya, particularly for women seeking safe abortion care under complex circumstances.

Data from the Ministry of Health Kenya indicates that unsafe abortions remain a significant public health concern. A 2025 report revealed that between 2003 and 2004, an estimated 792,000 induced abortions occurred in the country, translating to 57.3 cases per 1,000 women aged between 15 and 49 years.

The report further indicated that a large proportion of those who sought such services were married or in stable relationships, with many having previously given birth. Health experts have often linked these figures to gaps in access to reproductive health services, family planning, and education.

Legal analysts say the appellate court’s decision reaffirms a restrictive interpretation of abortion laws while maintaining constitutional safeguards for cases involving medical necessity.

The ruling is likely to reignite debate among policymakers, civil society organisations, and healthcare professionals over how to balance legal frameworks with public health considerations.

As the reinstated cases proceed in lower courts, attention is expected to shift to how the judiciary will interpret and apply the clarified legal standards in practice.

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Court of Appeal Overturns 2022 Abortion Ruling, Says Abortion Not a Fundamental Right