The Court of Appeal has ruled that abortion does not qualify as a fundamental right under the Constitution of Kenya. In a landmark judgment delivered on Friday, April 24, 2026, the appellate court emphasized that the procedure remains generally prohibited, with access permitted only under strictly limited circumstances outlined in law.
Justices Gatembu Kairu, Kibaya Laibuta, and Grace Ngenye presided over the consolidated appeals and delivered the decision. The court provided a detailed interpretation of Article 26 of the Constitution, holding that subsections (1) and (2) protect the right to life from the point of conception. As a result, procuring an abortion in ordinary circumstances amounts to depriving an unborn child of this constitutional right to life.
The judges clarified that Article 26(3) and (4) create narrow exceptions where abortion may be lawfully performed. These exceptions apply in situations where, in the opinion of a trained health professional, there is a need for emergency treatment, where the life or health of the mother is in danger, or where another written law expressly permits it.
The Court of Appeal explicitly stated that abortion is not a fundamental right guaranteed under the Constitution. On the contrary, the Constitution expressly prohibits it but provides exceptions in limited circumstances. This position directly supports the continued validity of punitive provisions in the Penal Code. Sections 158, 159, and 160 criminalize unlawful abortion practices, and the ruling reinforces their place within the constitutional framework.
This decision overturns a 2022 High Court ruling from Malindi that had recognized abortion as a constitutional right, although not absolute. The earlier judgment had directed the government to develop a comprehensive legal and policy framework to facilitate access to safe abortion services in line with reproductive health provisions. The appellate court found that the High Court had misinterpreted the relevant constitutional provisions on the right to life and the restricted grounds for abortion.
By setting aside the 2022 decision, the Court of Appeal reinstates a more restrictive interpretation of the law. Access to abortion services now remains available only when the specified exceptions apply, as determined by trained health professionals or other express legal provisions. The ruling underscores that while the Constitution recognizes certain reproductive health considerations, it does not elevate abortion to the status of a fundamental right
Why this ruling is troubling
The Atheists in Kenya Society strongly condemns the recent Court of Appeal judgment that effectively equates abortion with murder and declares it unconstitutional. This ruling represents a dangerous regression in the protection of fundamental rights and a troubling intrusion of religious morality into constitutional interpretation.
We affirm that access to safe and legal abortion is a matter of personal autonomy, bodily integrity, and public health—not criminality. By framing abortion as murder, the Court disregards the complex medical, social, and economic realities that compel individuals to seek such services. This decision will not end abortion; it will only make it unsafe, pushing vulnerable women and girls toward clandestine procedures that risk their lives.
Kenya’s Constitution, under Article 26(4), already provides clear and limited circumstances under which abortion is permissible, particularly when the life or health of the mother is in danger. Any interpretation that seeks to erase or undermine this provision is not only legally flawed but also inconsistent with the broader framework of rights, including dignity, privacy, and freedom from cruel and inhuman treatment.
We are particularly concerned that this ruling appears to be influenced by religious dogma rather than grounded in secular constitutional principles. Courts in a democratic society must serve all citizens, regardless of their beliefs, and must not impose a singular moral viewpoint on a diverse population.
We stand firmly in support of reproductive rights and the principle of choice. Individuals must have the freedom to make decisions about their own bodies without fear of criminalization or state coercion.