The decision saw the court declaring that abortion amounts to depriving an unborn child of life except in narrow circumstances where the mother’s life or health is at risk.
The three-judge bench overturned a 2022 High Court decision that had expanded access to abortion services. The appeals court held that Kenya’s 2010 constitution expressly prohibits abortion while allowing limited exceptions.
“Abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the Constitution expressly prohibits it but provides exceptions in limited circumstances,” the judges ruled.
The verdict, delivered in Malindi by Justices Gatembu Kairu, Kibaya Laibuta and Grace Ngenye, stemmed from consolidated appeals challenging the earlier ruling. The court grounded its decision in Article 26 of the constitution, which states that the right to life begins at conception.
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The ruling revives criminal proceedings against an abortionist stemming from a 2019 case in which the teen girl who had an abortion suffered complications from an abortion. The High Court had quashed those charges in 2022. The appeals court set aside that judgment and ordered the original criminal cases to proceed on their merits.
Kenya’s constitution permits abortion only when, in the opinion of a trained health professional, there is a risk to the life or health of the mother or in cases of emergency treatment. The ruling reaffirms the validity of criminal penalties under the penal code for unlawful abortions outside of those rare circumstances.
The pro-abortion Centre for Reproductive Rights called it “a deeply disappointing decision” and said it would appeal to the Supreme Court.
Pro-life supporters and many Kenyan Christians welcomed the outcome as affirmation of the constitutional protection for unborn life.
Kenya remains a largely Christian nation where abortion, though legally permitted in limited cases, is culturally taboo and subject to colonial-era penal code restrictions.
