Audio By Vocalize
On May 2, 2025, LAO, a 16-year-old Form 2 student in Migori County, died from complications following an unsafe abortion. She had sought help from a pharmacy and then an herbalist. When the severe bleeding began, she was taken to a health facility, but it was too late. LAO’s death was a direct result of systemic barriers that forced her to seek unsafe care.
Her story is not unique. A recent national study found that every year in Kenya, an estimated 464,000 women have induced abortions, and over 119,000 are treated in health facilities for complications. Young women like LAO are especially affected: 17 per cent of those seeking post-abortion care are aged 10 to 19. An estimated 266 women die for every 100,000 unsafe abortions. This is the reality of a gap between our Constitution and a colonial-era Penal Code that has never been updated.
This gap was at the heart of Civil Appeal No. E029 of 2022 and E030 of 2022, the Malindi case. The case involved PAK, a 16-year-old who, like LAO, experienced a pregnancy complication. She sought emergency care from a licensed clinical officer, Salim Mohammed. Instead of receiving care, both were arrested, detained, and prosecuted. The High Court in 2022 ruled their prosecution unlawful and affirmed that a trained health professional acting in good faith should not be guilty of a Penal Code offence for providing care. The government appealed, and on April 24, 2026, the Court of Appeal delivered its judgment.
In its decision, the Court of Appeal in Malindi overturned the 2022 High Court ruling. The three-judge bench, comprising justices Gatembu Kairu, Grace Ngenye Macharia, and Kibaya Laibuta, set aside the High Court’s decision and reinstated criminal proceedings against PAK and Mohammed.
The Court of Appeal held that abortion is not a fundamental right under the Constitution.
It emphasized that Articles 26(1) and (2) protect the right to life from conception and that termination of pregnancy violates that right. While the court acknowledged that abortion is permissible in limited circumstances, that is, where emergency treatment is necessary, or the life or health of the mother is in danger, it rejected the High Court’s broader interpretation that access to abortion care is constitutionally protected.
For PAK, this means the criminal case against her is back on. A young woman who sought emergency medical care after suffering pregnancy complications now faces prosecution once again. For Salim Mohammed, a licensed clinical officer who provided post-abortion care in good faith, the threat of imprisonment under sections 158, 159, and 160 of the Penal Code has been revived.
LAO’s death was preventable. It was the result of a system that criminalises and abandons girls when they most need care. The Court of Appeal ruling makes that system more dangerous, not less.
By reinstating the Penal Code’s criminal framework and rejecting the constitutional right to abortion care, the ruling sends a chilling message to healthcare providers: treat a woman or girl in an emergency and you risk arrest. It tells women and girls that seeking care could land them in a police cell or a remand prison, just as it did for PAK, who was arrested from her hospital bed, detained for two nights without medical care and remanded at Malindi Juvenile Remand Prison for over a month
The ruling places healthcare providers under heightened scrutiny and will inevitably deter them from providing critical medical care. In a country where at least 2,600 women die from unsafe abortions every year and 21,000 more are hospitalized due to complications, this is not an abstract legal debate. It is a matter of life and death.
The Court of Appeal’s narrow reading of Article 26(4) ignores the reality on the ground. Our Constitution already permits abortion where a trained health professional determines there is need for emergency treatment, or the life or health of the woman is at risk.
But without a clear statutory framework and with the Penal Code’s criminal provisions now reaffirmed, providers will continue to fear prosecution, and girls like LAO will continue to be left with no safe options.
The Center for Reproductive Rights, which has supported this case, has announced its intention to move to the Supreme Court of Kenya to correct this anomaly.
We stand with them. This case is too important to end here.
The Malindi case was a Kenyan case, brought by Kenyan citizens, asking Kenyan courts to ensure that what the Constitution promises is what the law delivers. The Court of Appeal has failed to deliver that promise. But the Constitution still stands and so does our demand for justice.
For LAO and PAK and for every woman and girl in this country, we cannot accept this setback as final. We urge the Supreme Court to restore the High Court’s ruling and affirm that women have a constitutional right to safe abortion care.
But even as we prepare for the next legal battle, the real work does not end in a courtroom. Parliament must still enact a clear abortion law. The Ministry of Health must ensure all facilities can provide safe care. And law enforcement must stop arresting women and providers for seeking or delivering constitutionally protected health services.
LAO’s death was preventable. PAK’s prosecution was unjust. The Court of Appeal ruling is a major setback, but it cannot be the end of our story. We honor LAO’s memory by demanding that Kenya finally closes the gap between its laws and its Constitution, ensuring no other girl has to risk her life for the care she is entitled to.
The Constitution is on our side. The women and girls of Kenya are on our side. And we will not stop fighting until the law is too.
– The writer is Executive Director, Women Collective Kenya
Support Independent Journalism
Stand With Bold Journalism.
Stand With The Standard.
Continue
→
Pay via
Secure Payment
Kenya’s most trusted newsroom since 1902
Follow The Standard on
On May 2, 2025, LAO, a 16-year-old Form 2 student in Migori County, died from complications following an unsafe abortion. She had sought help from a pharmacy and then an herbalist. When the severe bleeding began, she was taken to a health facility, but it was too late. LAO’s death was a direct result of systemic barriers that forced her to seek unsafe care.
Her story is not unique. A recent national study found that every year in Kenya, an estimated 464,000 women have induced abortions, and over 119,000 are treated in health facilities for complications. Young women like LAO are especially affected: 17 per cent of those seeking post-abortion care are aged 10 to 19. An estimated 266 women die for every 100,000 unsafe abortions. This is the reality of a gap between our Constitution and a colonial-era Penal Code that has never been updated.
This gap was at the heart of Civil Appeal No. E029 of 2022 and E030 of 2022, the Malindi case. The case involved PAK, a 16-year-old who, like LAO, experienced a pregnancy complication. She sought emergency care from a licensed clinical officer, Salim Mohammed. Instead of receiving care, both were arrested, detained, and prosecuted. The High Court in 2022 ruled their prosecution unlawful and affirmed that a trained health professional acting in good faith should not be guilty of a Penal Code offence for providing care. The government appealed, and on April 24, 2026, the Court of Appeal delivered its judgment.
In its decision, the Court of Appeal in Malindi overturned the 2022 High Court ruling. The three-judge bench, comprising justices Gatembu Kairu, Grace Ngenye Macharia, and Kibaya Laibuta, set aside the High Court’s decision and reinstated criminal proceedings against PAK and Mohammed.
The Court of Appeal held that abortion is not a fundamental right under the Constitution.
It emphasized that Articles 26(1) and (2) protect the right to life from conception and that termination of pregnancy violates that right. While the court acknowledged that abortion is permissible in limited circumstances, that is, where emergency treatment is necessary, or the life or health of the mother is in danger, it rejected the High Court’s broader interpretation that access to abortion care is constitutionally protected.
For PAK, this means the criminal case against her is back on. A young woman who sought emergency medical care after suffering pregnancy complications now faces prosecution once again. For Salim Mohammed, a licensed clinical officer who provided post-abortion care in good faith, the threat of imprisonment under sections 158, 159, and 160 of the Penal Code has been revived.
LAO’s death was preventable. It was the result of a system that criminalises and abandons girls when they most need care. The Court of Appeal ruling makes that system more dangerous, not less.
By reinstating the Penal Code’s criminal framework and rejecting the constitutional right to abortion care, the ruling sends a chilling message to healthcare providers: treat a woman or girl in an emergency and you risk arrest. It tells women and girls that seeking care could land them in a police cell or a remand prison, just as it did for PAK, who was arrested from her hospital bed, detained for two nights without medical care and remanded at Malindi Juvenile Remand Prison for over a month
The ruling places healthcare providers under heightened scrutiny and will inevitably deter them from providing critical medical care. In a country where at least 2,600 women die from unsafe abortions every year and 21,000 more are hospitalized due to complications, this is not an abstract legal debate. It is a matter of life and death.
The Court of Appeal’s narrow reading of Article 26(4) ignores the reality on the ground. Our Constitution already permits abortion where a trained health professional determines there is need for emergency treatment, or the life or health of the woman is at risk.
But without a clear statutory framework and with the Penal Code’s criminal provisions now reaffirmed, providers will continue to fear prosecution, and girls like LAO will continue to be left with no safe options.
The Center for Reproductive Rights, which has supported this case, has announced its intention to move to the Supreme Court of Kenya to correct this anomaly.
We stand with them. This case is too important to end here.
Stay informed. Subscribe to our newsletter
The Malindi case was a Kenyan case, brought by Kenyan citizens, asking Kenyan courts to ensure that what the Constitution promises is what the law delivers. The Court of Appeal has failed to deliver that promise. But the Constitution still stands and so does our demand for justice.
For LAO and PAK and for every woman and girl in this country, we cannot accept this setback as final. We urge the Supreme Court to restore the High Court’s ruling and affirm that women have a constitutional right to safe abortion care.
But even as we prepare for the next legal battle, the real work does not end in a courtroom. Parliament must still enact a clear abortion law. The Ministry of Health must ensure all facilities can provide safe care. And law enforcement must stop arresting women and providers for seeking or delivering constitutionally protected health services.
LAO’s death was preventable. PAK’s prosecution was unjust. The Court of Appeal ruling is a major setback, but it cannot be the end of our story. We honor LAO’s memory by demanding that Kenya finally closes the gap between its laws and its Constitution, ensuring no other girl has to risk her life for the care she is entitled to.
The Constitution is on our side. The women and girls of Kenya are on our side. And we will not stop fighting until the law is too.
– The writer is Executive Director, Women Collective Kenya
By Ruth Mumbi