The Kenyan court of appeal on Friday overturned a 2022 High Court decision that had held that access to abortion was protected under the constitution, a move that prosecutors and opponents of abortion rights said restores limits in line with the penal code. The decision also sets up the possibility of another appeal to Kenya’s Supreme Court, according to the parties involved and their statements after the ruling.
The 2022 case arose after a teenager sought care at a hospital for pregnancy complications. A doctor determined she had lost the pregnancy and provided emergency post-abortion care, and the teenager was later prosecuted along with those involved in her care. The High Court acquitted them and concluded that arrest and prosecution in such circumstances violated the constitution.
Friday’s appeals court reversed that reasoning, emphasizing the constitutional protection of life for a “child” and describing abortion as prohibited except for narrow exceptions. The court reiterated that abortion denies a child the right to life as guaranteed in the constitution, and it said the prohibition allows exceptions, including when the life or health of the mother is at risk.
In its written ruling, the appeal court said: “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.” The decision cited the structure of Kenya’s constitutional and criminal-law framework, including the country’s penal code and its limited carve-outs tied to emergency medical decisions.
Kenya’s penal code criminalizes abortion and sets a sentence of up to 14 years in prison for attempting or procuring an abortion. At the same time, the constitution permits abortion in emergency circumstances when a trained health care worker recommends it to save the life or protect the health of the mother, a point that the appeals court relied on while rejecting the earlier “fundamental right” interpretation.
After the ruling, a global human rights group, the Center for Reproductive Rights, described the decision as a setback and said it would take the case to Kenya’s Supreme Court. The group said it planned to seek review “to correct this anomaly,” according to its statement reported by The Associated Press.
A local faith-based organization, the Kenya Christian Professionals’ Forum, and the attorney general had appealed the 2022 High Court decision. Charles Kanjama, the forum’s lawyer and former chairperson, told The Associated Press that the appeals court decision had “restored constitutional balance which had been distorted by the high court ruling.”
Kanjama argued that in cases where people are accused under the penal code provisions dealing with abortion offenses, the accused must be able to show they were not involved in an abortion “on demand.” He also pointed to the specific penal code sections under which the teenager and health providers were charged.
The issue has also been linked to concerns about maternal health and safety. Abortion is a leading cause of maternal deaths, and a report jointly published in 2025 by Kenya’s Ministry of Health, the African Population and Health Research Center, and the Guttmacher Institute estimated that 792,000 induced abortions occurred in Kenya between April 2023 and May 2024.