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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether abortion is permissible under the laws of Kenya and, if so, under what circumstances
- 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.whether abortion is a fundamental right under the Constitution free from any limitations
- 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.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.what orders and directions ought we to give in determination of the instant appeal
Key legal issues
#Permissibility of abortion under Kenyan law and whether it is a fundamental right
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.
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.
Whether the High Court was at fault in quashing the criminal proceedings and barring investigations
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.
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.
Whether access to abortion services is justifiable via privacy, dignity, liberty and equality rights
The Court abstained from determining this issue, leaving it to the trial court where the constitutional questions arise, including before magistrates' courts.
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.
Legal principles established
#- 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
#- 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.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.each party bears their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
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
#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
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
Damages for the alleged violations
The High Court declined damages and no contrary finding was made
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
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
#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;
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
in view of the nature of the public interest in the two consolidated appeals, we hereby direct that each party bears their own 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.
The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases
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.
Issues in the judgment
#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.
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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.