NAIROBI, Kenya – Hundreds of abortion-rights protesters and reproductive health advocates marched from Nairobi’s Central Business District to Afya House on Thursday, in protest of a Court of Appeal ruling in an abortion-related case.
Carrying placards calling for justice and protection for women and girls, the demonstrators warned that the ruling could discourage patients from seeking emergency medical care for fear of arrest or prosecution.
This follows Court of Appeal decision that overturned a 2022 High Court ruling which had stopped criminal proceedings against a teenage girl identified in court documents as PAK and a clinical officer in Kilifi.
The appellate court reinstated the case and ordered it to proceed to full trial.
The matter, which has been ongoing since 2020, involves charges under sections 158, 159 and 160 of the Penal Code on alleged procurement of abortion and supply of drugs to procure miscarriage.
Court records indicate that PAK was 16 years old when she became pregnant after allegedly being defiled and later lost the pregnancy.
Reproductive health advocates say she later sought emergency medical care following complications and was arrested alongside the clinical officer who treated her.
Speaking during the protest, Martin Onyango, Associate Director for Africa Legal Strategies at the Center for Reproductive Rights, said the case reflects broader challenges facing vulnerable girls and healthcare providers.
“PAK was a schoolgirl from a very poor background in Kilifi. She became pregnant and, unfortunately, lost the pregnancy. Instead of receiving care and protection, she was criminalised,” Onyango said.
He further stated: “The child was removed from the hospital bed. The clinical officer who was treating her was also arrested.”
The case was initially heard in a Kilifi magistrate’s court, where lawyers argued that the girl had already lost the pregnancy before arriving at the hospital and required emergency post-abortion care, which they said is lawful under Kenyan law.
The court, however, declined to terminate the case, ruling that the issues required a full trial.
The matter was later escalated to the High Court in Malindi, where the petitioners argued that their arrest, detention and prosecution violated constitutional rights, including dignity, privacy and access to healthcare.
They also challenged forced medical examinations and hospital-based arrests.
In 2022, the High Court agreed in part, quashing the criminal proceedings and restraining further prosecution, finding violations of constitutional rights and raising concerns over access to confidential medical information obtained without proper authorisation.
The High Court also held that abortion is permitted under Article 26(4) of the Constitution in limited circumstances where emergency treatment is necessary or the mother’s life or health is at risk, and directed Parliament to clarify reproductive healthcare laws.
That decision was challenged by anti-abortion groups and the Attorney General at the Court of Appeal.
In its ruling, the Court of Appeal reinstated the criminal case, stating that “The criminal proceedings provide the requisite judicial platform on which the veracity of the charges stands to be tested.”
“Abortion is not a fundamental right guaranteed under the Constitution; on the contrary, it is expressly prohibited but with exceptions in limited circumstances under Article 26(4).”
The court added that claims of rights violations could still be addressed during trial and found no evidence of prosecutorial bad faith, stating that stopping the case was premature.
It ultimately set aside the High Court judgment and ordered the matter to proceed in Kilifi, with each party bearing its own costs.
