Written by Ashley Audrey Amani,
Catholic University of Eastern Africa,
April 2026
INTRODUCTION
Kenya’s legal landscape is faced with a sharp jurisprudential shift following two very conflicting cases, in 2022, the case of PAK & Another v Attorney General & 3 Others [1]We see the High Court declaring abortion a fundamental right, four years down the line, the ruling in Attorney General & 3 Others v PAK & Another [2](Consolidated) which was given on the 24th of April 2026, sets aside the previous ruling. The procedural history of this case can be traced back to 2019, when a 17-year-old girl developed complications from her pregnancy and consequently sought to terminate it with the help of a registered clinical officer, Salim Mohammed, in his local clinic. While still in recovery, the police raided the local clinic and arrested both the girl and the clinical officer. While in custody, they were mistreated. As a result of all this, PAK and Salim Mohammed sued the government on grounds of violation of their constitutional rights. In the High Court, Justice Reuben Nyakundi issued a ruling that in deed abortion is a fundamental right under the Constitution of Kenya 2010, on appeal, this ruling was set aside at the Court of Appeal in Malindi before a three judge bench which held that abortion is not a fundamental right stating that the ruling in 2022 was a clear misinterpretation of Art 26(4) Constitution of Kenya 2010 [3]by the High Court. This article dives into this jurisprudential shift by closely analysing the legal reasoning behind the two rulings and why they are so conflicting.
LEGAL FRAMEWORK
In the PAK litigation, there is a clear constitutional dissonance evident through Art 26(4)[4] of the Constitution of Kenya 2010, which creates an exception to abortion, when read together with Art 43(2)[5], which mandates that a person shall not be denied emergency medical care. Conversely, Section 158 of the Penal Code[6] criminalises abortion with up to 14 years in prison. We see that while the constitution aims at protecting the health of women, the Penal Code is being used to criminalise constitutional entitlements by facilitating their prosecution.
This begs the question of supremacy. According to Article 2(4) [7] of the Constitution of Kenya 2010, the constitution is the supreme law of the land, and any law that is in contradiction with it is considered void. One can therefore conclude that, in this litigation, the appeal against PAK was void ab initio. Why then did the court proceed with the trial?
PURPOSIVE PROTECTION v FORMALIST RESTRAINT
Purposive Protection
In 2022, the ruling by Justice Nyakundi was deeply rooted in an understanding of the purpose of the Constitution. The Constitution of Kenya 2010 moves from the oppressive post-colonial era to a new era where dignity is no longer seen as a privilege but rather an inherent right that cannot be taken away from one. Article 259(1) [8]dictates that it shall be interpreted in a manner that promotes its purposes, values and principles; advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights. In light of this, the purpose of the law in this case is to protect the 17-year-old girl in a medical crisis and uphold her dignity. Is it really dignified to arrest a 17-year-old girl who is in recovery and mistreat her while in custody?
Additionally, Art 26(4)[9] provides an exception to abortion, which creates a legal vacuum that aims to protect not only the life but also the health of the mother, who is in danger. By intersecting the inherent right of dignity and right to proper healthcare, Justice Nyakundi consequently declared abortion a fundamental right, though not absolute, to provide the highest form of legal protection to curb and avoid police harassment.
Lastly, Salim Mohammed was a trained professional. Article 26(4)[10] grants him the constitutional authority to make the decision as to whether the abortion is permissible or not. On the other hand, the police, who are not medical professionals, had no authority to interfere with a medic’s clinical judgment during an emergency. The constitutional authority granted to the professional in Art 26(4)[11], therefore, prevents the use of the Penal Code to doubt the medical officer’s life-saving decision.
Formalist Restraint
The decision of the appellant bench in 2026 leaned majorly towards legal formalism, where they stuck to the literal text and its meaning; they took it as it is written.
In their ruling, they argued that Art 26(4)[12] provides an exception that is merely a defence in court, but it does not give one the right. In their ruling, they argue that Art 26(1) and (2)[13] explicitly protect life from conception, and therefore, the Constitution primarily considers an abortion to be prohibited. The ruling to reduce this from a fundamental right, as previously established, to a mere exception gives triumph to the Penal Code.
Through this ruling, the appellant bench heavily criticised the decision by the High Court to make the law. They held that if there was a legal space that needed to be filled, it was the work of the Parliament to come up with the Reproductive Health Framework aimed at solving the legal dilemma. The work of the Judiciary is simply to interpret the law, and it has no jurisdiction to make new laws or to rewrite criminal statutes. This reasoning may leave one with the question: should the Judiciary remain a silent observer of a legal vacuum, or does the transformative nature of the 2010 Constitution mandate judicial intervention when fundamental freedoms are at stake?
By setting aside the ruling in 2022, the Court of Appeal reinstated the initial criminal charges against PAK and Salim. The arrest was not unconstitutional; they have to go back to a magistrate and provide a probable defence that they were in a medical emergency at the time of their actions.
CRITICAL ANALYSIS OF THE CONSTITUTIONAL PARADOX
While the appellate court cited the separation of powers, Hilaire Barnett [14]notes that this doctrine is not absolute; it includes a system of checks and balances where the Judiciary must act as a watchdog when the Legislature fails to protect fundamental freedoms. This is a case of extreme judicial restraint, this is because the separation of powers is a doctrine that was set out to prevent tyranny and to keep a balance between the various branches of government. When we look at the purpose behind this doctrine, it is not to prevent the Judiciary from protecting and upholding fundamental rights. It is, therefore, quite saddening to see that the judiciary is willing to stay silent at the expense of the lives and rights of others just because they lack the authority. What then happens if the Parliament never enacts a law to fill this legal vacuum? Does this mean that the Judiciary will continue ignoring it? The ruling in 2022 was not legislation; it mandated compliance with the Parliament, and reversing it gives the Parliament the okay to continue ignoring the constitution.
The 2026 ruling was majorly procedural rather than substantive, as was the 2022 ruling. In Constitutional Law, the substance must supersede the procedure. As Ronald Dworkin argues in Law’s Empire[15]The law must be interpreted with integrity, meaning judges should look for the best moral interpretation of the constitutional text. By retreating into formalism, the 2026 bench failed this standard of integrity. The 2022 ruling focused on the health of the 17-year-old girl and the professionalism of the clinical officer, yet the recent ruling majorly focused on the trial and the Penal Code. The decision to overturn the initial hearing prioritises the criminal prosecution rather than protecting the constitutional rights of the accused. Art 26(4) [16]The Constitution protects the 17-year-old girl from the get-go; therefore, the criminal proceeding should have never taken place.
The 2026 ruling creates fear and doubt in the medical profession; there is no professional certainty, they live in constant fear of whether the next moment they grab a scapel to save a life, they will end up in cuffs and custody. This legal uncertainty creates what the Centre for Reproductive Rights[17] describes as a chilling effect, where healthcare providers fearing prosecution under an unaligned Penal Code will refuse to provide even life-saving emergency care. This fear will rightfully make most medical officers stop fulfilling their professional duty, and this not only leads to loss of lives, but also causes women to look for alternative and fake doctors, who will just risk their lives. Additionally, this will lead to a repeal of Article 26(4) of the Constitution without a vote in Parliament.
Ultimately, the recent 2026 ruling fails the test of Substantive Justice, as it ignores its duty to serve and protect the fundamental rights as established in the Bill of Rights and the Constitution. The ruling is an evident case of extreme judicial restraint at the expense of the lives of many innocent young women in the country. If a secular democracy like India, X v The Health Department [2022][18], with a similarly complex legal history, recognises that forced pregnancy is a violation of the right to life, why is Kenya’s court using the Right to Life, Article, to justify the potential prosecution of a 17-year-old?
CONCLUSION
In conclusion, the reversal of the 2022 ruling is a step back in the legal space in Kenya. It takes us back to the post-colonial era, which the enacted Constitution in 2010 strives to move away from. This ruling upheld the Statutory laws rather than the fundamental rights established in the Constitution. While global peers like India have moved to affirm reproductive autonomy as a fundamental facet of human dignity, Kenya has remained in a backward position where this legal vacuum now leaves multiple women and our medical professionals in fear for their livelihoods. Until this legal vacuum is addressed and filled while considering the best interest of the public, Women’s Reproductive Healthcare will continuously be shadowed and haunted by the Penal Code and a ruling that gives the Judiciary a power and right over their bodies and health
BIBLIOGRAPHY
Primary Sources: Statutes
Constitution of Kenya 2010
The Penal Code, Chapter 63 of the Laws of Kenya
Primary Sources: Case Law
Attorney General v PAK & others [2026] (Court of Appeal of Kenya)
PAK v Attorney General & 3 others [2022] eKLR
X v The Health Department [2022] (Supreme Court of India)
Secondary Sources: Books
Barnett H, Constitutional & Administrative Law (14th edn, Routledge 2021)
Dworkin R, Law’s Empire (Harvard University Press, 1986)
Secondary Sources: Reports
Centre for Reproductive Rights, ‘The Impact of Regressive Rulings on Maternal Health in East Africa’ (2026 Report)
[1] PAK v Attorney General & 3 others [2022] eKLR.
[2] Attorney General v PAK & others [2026] (Court of Appeal of Kenya).
[3] Constitution of Kenya 2010, art 26(4)
[4] Constitution of Kenya 2010, art 26(4)
[5] Constitution of Kenya 2010, art 43(2)
[6] Penal Code, Cap 63, s 158
[7] Constitution of Kenya 2010, art 2(4).
[8] Constitution of Kenya 2010, art 259(1)
[9] Constitution of Kenya 2010, art 26(4).
[10] Constitution of Kenya 2010, art 26(4).
[11] Constitution of Kenya 2010, art 26(4).
[12] Constitution of Kenya 2010, art 26(4).
[13] Constitution of Kenya 2010, art 26(1)(2).
[14] Hilaire Barnett, Constitutional & Administrative Law (14th edn, Routledge 2021) 89.
[15] Ronald Dworkin, Law’s Empire (Harvard University Press 1986) 225.
[16] Constitution of Kenya 2010, art 26(4).
[17] Centre for Reproductive Rights, ‘The Impact of Regressive Rulings on Maternal Health in East Africa’ (2026 Report)
[18] X v The Health Department [2022] (Supreme Court of India)
