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Court of AppealPartially AllowedCivil Appeal Nos. E029 of 2022 and E030 of 2022 (consolidated)

Kenya Christian Professionals Forum & 4 others v PAK & 5 others; Kelin Kenya & 4 others (Amicus Curiae) (Civil Appeal E029 & E030 of 2022 (Consolidated)) [2026] KECA 778 (KLR)

Court of Appeal of Kenya
24 April 2026
8,601 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reinstated criminal abortion charges against a teenage girl and a man, ruling abortion is not a constitutional right in Kenya.

What this practically means

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Executive summary

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This is a single judgment of the Court of Appeal at Malindi (Kairu, Laibuta and Ngenye-Macharia, JJAA) allowing two consolidated appeals against the judgment of R. Nyakundi, J. in High Court Petition No. E009 of 2020, which had partially allowed a constitutional petition by PAK, a minor, and Salim Mohamed. The respondents had been charged in Kilifi Senior Principal Magistrate's Court Criminal Cases Nos. 395 and 396 of 2019 with procuring abortion and related offences under sections 158-160 of the Penal Code after the minor's arrest from her hospital bed. The High Court quashed the charges, found violations of the minor's rights, and directed legislative and policy action. The Court of Appeal framed six issues and held that although Article 26(1) and (2) guarantee the right to life from conception, abortion is nonetheless permissible only in the restrictive circumstances of Article 26(3) and (4); it is not a fundamental right. The Court declined to determine whether access to abortion services is justified by privacy, dignity, liberty and equality rights, leaving that to the trial court. It found no abuse of process, no bad faith, and no violation justifying the extraordinary remedy of quashing charges, noting section 193A of the Criminal Procedure Code bars stays of criminal proceedings due to parallel petitions. The appeal was allowed in its entirety: the High Court judgment and decree were set aside, the criminal proceedings were reinstated for hearing on their merits, and, given the public interest, each party was directed to bear its own costs. The judgment now binds subordinate courts on the permissibility of abortion and the restraint required in quashing criminal proceedings.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether abortion is permissible under the laws of Kenya and, if so, under what circumstances
  2. 2.whether procuring an abortion is tantamount to depriving the unborn child the right to life as defined under the Constitution of Kenya, 2010
  3. 3.whether abortion is a fundamental right under the Constitution free from any limitations
  4. 4.whether access to abortion services is justifiable in exercise of a person's right to privacy, human dignity, the right to liberty, and the right to equality and non-discrimination guaranteed under the Constitution
  5. 5.whether the learned Judge was at fault in holding that the arrest, charge and prosecution of the respondents was unlawful and in breach of any of their fundamental rights
  6. 6.what orders and directions ought we to give in determination of the instant appeal

Key legal issues

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01

Permissibility of abortion under Kenyan law and whether it is a fundamental right

Holding

Abortion is not a fundamental right; it is constitutionally prohibited save in the limited exceptions in Article 26(3) and (4); sections 158-160 of the Penal Code impose punitive sanctions and prosecution must establish unlawfulness.

Reasoning

The Court read Article 26(1) and (2) as guaranteeing the right to life from conception, making procurement of abortion a deprivation of the unborn's right to life. Sub-articles (3) and (4) permit abortion only where a trained health professional opines there is need for emergency treatment, the life or health of the mother is in danger, or other written law permits. The Penal Code offences incorporate the element of unlawfulness, to be tested at trial.

p. 13
02

Whether the High Court was at fault in quashing the criminal proceedings and barring investigations

Holding

Yes. The petition did not meet the threshold for quashing; the restraint on investigation and prosecution was unfounded in law; the criminal proceedings are the proper forum to test the charges.

Reasoning

The Court reaffirmed that quashing powers are exercised sparingly in the rarest of rare cases, and found no evidence that the prosecutor disregarded the public interest, no abuse of process, and no violation of the respondents' rights. Section 193A of the Criminal Procedure Code bars stays of criminal proceedings because of parallel civil/constitutional proceedings, and respondents retain all constitutional safeguards at trial.

p. 16
03

Whether access to abortion services is justifiable via privacy, dignity, liberty and equality rights

Holding

The Court abstained from determining this issue, leaving it to the trial court where the constitutional questions arise, including before magistrates' courts.

Reasoning

The Court confined itself to the propriety of quashing the criminal proceedings and clarifying the constitutional and statutory framework on abortion without pre-empting or embarrassing the trial court. It noted the concurrent (in a qualified sense) jurisdiction of magistrates to determine incidental constitutional questions while the High Court remains the primary forum for rights enforcement.

p. 14

Legal principles established

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  • Abortion is not a fundamental right under the Constitution; it is prohibited except in the restrictive circumstances of Article 26(3) and (4): need for emergency treatment in the opinion of a trained health professional, danger to the life or health of the mother, or permission by other written law.
  • Magistrates' courts may determine incidental constitutional questions arising in proceedings before them, but only the High Court is the primary forum for enforcement of fundamental rights through a constitutional petition.
  • The High Court's power to quash criminal charges and terminate proceedings is exercised sparingly, only in limited circumstances (violation of constitutional rights, abuse of process, discriminatory or malicious prosecution, irreparable fair-trial violation, lack of jurisdiction) demonstrated to the required standard; the mere pendency of a constitutional petition does not stay criminal proceedings.
  • A constitutional petition alleging breach of rights is not of itself a ground for staying, prohibiting or delaying criminal proceedings; the respondent remains free to assert rights, including Article 43(1)(a) health rights, at trial.

Court orders

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  1. 1.the judgment and decree of the High Court of Kenya at Malindi (R. Nyakundi, J.) dated 24th March 2022 be and are hereby set aside
  2. 2.the proceedings in the Senior Principal Magistrate's Court at Kilifi in Criminal Case No. 395 and No. 396 of 2019 be and are hereby reinstated for hearing and determination on their merits
  3. 3.each party bears their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Wrote the judgment

On appeal from
High Court of Kenya at Malindi
Petition No. E009 of 2020
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the judgment and decree of the High Court in a constitutional petition (Article 165 High Court enforcement of Bill of Rights; appeals as of right to the Court of Appeal)
Consolidated with
Civil Appeal No. E030 of 2022

Relief refused

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Permanent injunction barring the DPP from prosecuting patients seeking abortion care and the IG/DCI from arresting them

The High Court itself declined the perpetual injunction and the Court of Appeal set aside the judgment; respondents retain safeguards at trial

p. 8

Mandamus compelling the AG to forward a Bill, the IG to issue a police circular, and the DPP to issue a prosecutors' circular

The High Court found the mandamus without merit

p. 8

Damages for the alleged violations

The High Court declined damages and no contrary finding was made

p. 8

Declaration that access to abortion services is justified by privacy, dignity, liberty and equality rights

The Court declined to determine this issue, holding it should be resolved at trial

p. 14

Costs

In view of the nature of the public interest in the two consolidated appeals, we hereby direct that each party bears their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the judgment and decree of the High Court of Kenya at Malindi (R. Nyakundi, J.) dated 24th March 2022 be and are hereby set aside;
p. 17Final orders - reversal of High Court judgment
the proceedings in the Senior Principal Magistrate's Court at Kilifi in Criminal Case No. 395 and No. 396 of 2019 be and are hereby reinstated for hearing and determination on their merits; and
p. 17Final orders - reinstatement of criminal proceedings
in view of the nature of the public interest in the two consolidated appeals, we hereby direct that each party bears their own costs.
p. 17Final orders - costs
In efiect, abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the Constitution expressly prohibits it but provides exceptions in limited circumstances when it may be permissible.
p. 13Status of abortion under the Constitution
The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases
p. 16Restraint in quashing criminal proceedings
the fact that any other matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay,prohibition or delay of the criminal proceedings.
p. 16Section 193A Criminal Procedure Code - parallel proceedings

Issues in the judgment

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minor

Delivery date appears to contain a typographical/chronological anomaly: 'DATED AND DELIVERED AT MALINDI THIS 24TH DAY APRIL OF 2026' yet the Court refers to submissions dated 2nd September 2025 and 16th September 2025 and to lists of authorities filed after some 2025 briefs; the year 2026 is recorded as printed.

minor

The 1st respondent's affidavit chronology as summarised contains an internal inconsistency: 'she was remanded at Malindi Juvenile Remand Home from 23rd November 2019 to 24th October 2019', where the first date precedes the second and both conflict with the earlier statement that she was presented to court on 23rd September.

minor

The 2nd respondent's affidavit is dated 30th November 2019 while the petition it supports is dated 30th November 2020, an apparent date discrepancy.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Christian Professionals Forum & 4 others v PAK & 5 others; Kelin Kenya & 4 others (Amicus Curiae) (Civil Appeal E029 & E030 of 2022 (Consolidated)) [2026] KECA 778 (KLR)", Case Analysis (2026). Civil Appeal Nos. E029 of 2022 and E030 of 2022 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/778/eng@2026-04-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.