Authored By: NYAKARA JOY SHALOM
STRATHMORE UNIVERSITY
1. Case Citation and Basic Information
Case Name: PAK & Another v Attorney General & 3 Others
Citation: Constitutional Petition E009 of 2020 [2022] KEHC 262 (KLR)
Court: High Court of Kenya at Malindi (Constitutional and Human Rights Division); on appeal to the Court of Appeal at Malindi, Civil Appeal E030 of 2022
Date of Decision: High Court: 24 March 2022; Court of Appeal: 24 April 2026
Bench Composition: High Court — Justice Reuben Nyakundi (single judge); Court of Appeal — three-judge bench (Justices Gatembu Kairu, Grace Ngenye Macharia, and Kibaya Laibuta), sitting in Malindi
Parties: PAK (a minor, aged 17) and Salim Mohammed (registered Clinical Officer) (Petitioners/Respondents on appeal); Attorney General, Director of Public Prosecutions, Inspector General of Police, and the Kilifi Senior Principal Magistrate (Respondents/Appellants on appeal)
Interveners: Centre for Reproductive Rights; Reproductive Health Network Kenya (RHNK)
2. Introduction
PAK & Another v Attorney General & 3 Others is a significant constitutional case arising from the arrest and prosecution of a minor and her medical practitioner following treatment for a natural miscarriage in Kilifi County, Kenya. The case pitted the provisions of the Penal Code1 against those of the Constitution of Kenya 2010,2 raising fundamental questions about reproductive health rights. In 2022, the High Court delivered a landmark decision holding access to abortion services to be a constitutional right, while also directing Parliament to enact legislation on the matter. That decision was overturned by the Court of Appeal in April 2026, which upheld the criminal proceedings against the petitioners. The case remains highly significant for Kenyan constitutional law and reproductive health jurisprudence, and for the broader relationship between colonial-era criminal law and Kenya’s post-2010 constitutional order. The case is expected to proceed to the Supreme Court of Kenya for final determination.
3. Facts of the Case
In September 2019, PAK, a 17-year-old student living in Kilifi County, developed complications associated with her pregnancy. These included severe abdominal pain accompanied by vaginal bleeding. In a desperate effort to save her life, she sought medical care at Chamalo Medical Clinic. Salim Mohammed, a licensed Clinical Officer, diagnosed her as suffering a miscarriage and performed a manual vacuum aspiration — a well-recognized medical procedure used in managing miscarriages.
The following day, plain-clothed police officers searched the clinic without a warrant. They seized private medical records, including those belonging to the clinic, and arrested PAK — who was still recuperating — along with Mohammed and two of the clinic’s cleaners. PAK was detained for two days without access to medical care. During this time, she was subjected to a compulsory physical examination without her consent at Kilifi County Hospital, conducted to gather evidence against her, and she signed a self-incriminating document containing contradictory statements.
PAK and Mohammed were subsequently charged before the Kilifi Magistrates’ Court: PAK with procuring a miscarriage under section 159 of the Penal Code, and Mohammed with attempting to procure a miscarriage and supplying drugs to procure a miscarriage under sections 158 and 160 of the same Code, respectively.3
The petitioners challenged these proceedings by filing a constitutional petition before the High Court in Malindi, raising both the infringement of their basic constitutional rights and the constitutional validity of the relevant Penal Code provisions.
4. Legal Issues
- Whether access to abortion care, within the exceptions provided by the Constitution, constitutes a fundamental right under the Constitution of Kenya 2010.
- Whether sections 158, 159, and 160 of the Penal Code are inconsistent with, and repugnant to, the Constitution, particularly Articles 26(1), 26(2), 43, and 2(4).4
- Whether the arrest, detention without medical care, compelled physical examination, and seizure of confidential medical records violated the petitioners’ rights to privacy, human dignity, and health under Articles 28, 31, and 43 of the Constitution.5
- Whether the High Court had jurisdiction to halt the criminal prosecution of the petitioners, and on what constitutional basis.
5. Arguments
5.1 Petitioners’ Arguments
The petitioners raised four core arguments, supported by the interveners.
First, they argued that Articles 26(4) and 43(1)(a) of the Constitution, read together, establish a positive constitutional right to safe abortion care in specific circumstances — a right that could not be defeated by any pre-existing law.6
Second, they argued that sections 158, 159, and 160 of the Penal Code, enacted during the colonial period, were inconsistent with the Constitution and therefore void under Article 2(4). According to the petitioners, these provisions established a framework criminalizing conduct that the Constitution protects, and should accordingly be declared void.
Third, the petitioners argued that the respondents’ actions — the warrantless raid on the clinic, the confiscation of medical records, PAK’s detention without access to hospital care, and her forced physical examination — constituted serious violations of her constitutional rights under Article 31 (right to privacy), Article 28 (right to human dignity), and Article 43 (right to the highest attainable standard of health).7,8,9
Fourth, PAK and Mohammed argued that the criminal proceedings ought to have been halted because they arose from constitutionally protected conduct, and because evidence obtained through violations of fundamental freedoms should not be permitted to sustain a prosecution that would otherwise entrench a chilling effect on reproductive health services.
5.2 Respondents’ Arguments
The respondents — the Attorney General and the Director of Public Prosecutions, joined on appeal by additional parties — took the opposite position. They argued that Article 26(1) of the Constitution protects the life of every human being from conception, and that Article 26(4) recognizes abortion only within narrow exceptions that cannot be read as creating a broader constitutional right to abortion.10,11
According to the respondents, the Penal Code provisions remained good law in light of Article 26, and it was for Parliament — not the courts — to regulate the criminalization of abortion, if at all. They further argued that the High Court lacked the power to interfere with ongoing criminal proceedings in the Magistrates’ Court by way of a constitutional petition.
On appeal, the State submitted that the High Court had misconstrued the exception in Article 26(4) as though it were an affirmative constitutional right, thereby encroaching on Parliament’s legislative authority. The appellants further contended that obtaining an abortion outside the specified exceptions violates the unborn child’s constitutionally protected right to life.
6. Court’s Reasoning and Analysis
6.1 The High Court (Justice Nyakundi, 2022)
Justice Nyakundi approached the Constitution as a purposive document, to be interpreted in a manner that advances the rights and freedoms it guarantees. The court held that Articles 26 and 43, read together, provide not merely an exception but a positive constitutional right to access safe abortion services within the parameters set out in Article 26(4). The court further found it an abuse of rights to prosecute a minor for accessing medical care following a miscarriage.
On the constitutionality of the Penal Code provisions, the High Court relied on the persuasive precedent of Doctors for Life International v Speaker of the National Assembly12 and on Article 2(4), concluding that sections 158, 159, and 160 were repugnant to the Constitution and therefore invalid. The court emphasized the far-reaching effect of these provisions in criminalizing constitutionally protected conduct, producing a demonstrated chilling effect that prevented patients from exercising their right to health.
On the rights violations, the court held that the warrantless search of medical records infringed the constitutional protection of privacy under Article 31.13 The physical examination of a minor held in custody — conducted for evidentiary rather than therapeutic purposes — amounted to a gross infringement of her dignity and bodily integrity under Article 28.14 Evidence obtained through this unlawful conduct was held inadmissible.
The High Court directed Parliament to enact legislation governing access to abortion consistent with the Constitution, and quashed the criminal prosecution against both petitioners.
6.2 Court of Appeal (Three-Judge Bench)
The Court of Appeal’s decision departed significantly from the High Court’s position. It held that the Constitution of Kenya does not recognize abortion as a right, and that Article 26(4) is instead a narrow exception within the general prohibition on terminating the life of an unborn child under Article 26(1).
The Court of Appeal further held that the High Court had erred by exercising supervisory jurisdiction over ongoing Magistrates’ Court proceedings through a constitutional petition before those proceedings had concluded. Finding insufficient grounds for such intervention, the court ordered that the criminal cases against PAK and Mohammed proceed in the Kilifi Magistrates’ Court.
The Court of Appeal did not rule on the constitutional validity of the Penal Code provisions themselves.
7. Judgment and Ratio Decidendi
7.1 Judgment of the High Court (2022)
The petitioners succeeded at the High Court. The court held that access to abortion services is a constitutional right under Article 26(4); that the relevant Penal Code provisions are unconstitutional to the extent of their inconsistency with the Constitution; that evidence gathered in violation of constitutional rights is inadmissible; and that the criminal cases against the petitioners should be quashed. Parliament was directed to enact appropriate legislation.
Ratio Decidendi (High Court): Where emergency reproductive health care is provided in accordance with the exceptions in Article 26(4) of the Constitution of Kenya 2010, the State cannot criminalize either the patient or the medical personnel involved, and any penal provision that does so is invalid for inconsistency with the Constitution under Article 2(4).
7.2 Court of Appeal Judgment (2026)
The Court of Appeal allowed the State’s appeal, set aside the High Court’s judgment, and held that abortion is not a fundamental right under the Constitution. It found that Article 26(4) constitutes a narrow medical exception rather than an affirmative right, and reinstated the criminal charges against both PAK and Mohammed before the Kilifi Magistrates’ Court.
Ratio Decidendi: Article 26(4) of the Constitution of Kenya 2010 constitutes a narrow medical exception to the constitutional protection of the right to life of the unborn under Article 26(1), and does not create a freestanding fundamental right to abortion. The High Court was not entitled to intervene in active criminal proceedings by way of constitutional petition in the absence of sufficient constitutional grounds.
8. Critical Analysis
8.1 Significance of the Decision
This case marks one of the first instances in Kenya — and among only a handful across sub-Saharan Africa — where the conflict between post-colonial constitutional guarantees on reproductive health care and inherited penal statutes criminalizing abortion has been directly litigated. Justice Nyakundi’s 2022 High Court decision is significant as an illustration that transformative constitutionalism requires substantive, not merely superficial, consistency between old laws and the Constitution.15
The 2026 Court of Appeal decision is significant on an entirely different level. By holding that Article 26(4) creates no substantive legal right, the appellate court has drawn an interpretive line that is likely to shape the work of lower courts and prosecutors for years to come.
8.2 Implications and Consequences
The practical implications of the Court of Appeal’s decision are considerable. Medical practitioners treating pregnant patients in Kenya may once again face the threat of prosecution for managing pregnancy complications, regardless of whether their clinical decisions fall within the constitutionally recognized exceptions. The chilling effect on reproductive healthcare that the High Court identified as a constitutional harm can be expected to deepen. In response, the Centre for Reproductive Rights has indicated it intends to bring the matter before the Supreme Court of Kenya.16
The decision also carries further implications for the treatment of minors in police custody. The issues raised by the warrantless search, the unlawful and prolonged detention without access to healthcare, and the forced physical examination of a minor in custody — all identified by the High Court — were not substantively addressed by the Court of Appeal.
8.3 Critical Evaluation
The High Court was right to recognize that constitutional rights are meaningful only when they can be exercised effectively. Its observation that prosecuting healthcare professionals and their patients defeats the purpose of constitutional rights to health and dignity was sound, as was its decision to direct Parliament to legislate.
That said, the High Court’s ruling is open to criticism for effectively equating a constitutional exception with a constitutional right. Article 26(4), as written, does not create a right — it carves out an exception to a prohibition. The Court of Appeal’s textual analysis has some force, though its formalism deserves scrutiny. Read purposively under Article 259, Article 26(4) could reasonably support treating access to the listed exceptions as a right in substance.17
The Court of Appeal’s judgment is also open to criticism for failing to substantively engage with the rights violations arising from PAK’s arrest, detention, and forced examination. These findings by the High Court rested on independently established constitutional breaches and were not contingent on the outcome of the abortion-rights question. The appellate court’s silence on these matters diminishes the judgment’s standing as a comprehensive human rights analysis.
Conclusion
PAK & Another v Attorney General & 3 Others is an extremely significant case for reproductive rights in Kenya. The tension between the High Court’s expansive constitutionalism and the Court of Appeal’s text-based approach reduces to a single underlying question: can a transformative constitution coexist with criminal law inherited from the colonial past?
The central lesson of this case is that the constitutional status of reproductive health services in Kenya remains very much in dispute, and open to future determination. That the Court of Appeal allowed charges to proceed against a minor for receiving emergency care is a stark illustration of the distance that can exist between constitutional text and constitutional reality — a distance that still must be closed.
This case will be remembered as a moment when Kenya’s legal system was forced to confront the incompatibility between the values of its 2010 Constitution and the criminal law it inherited from the colonial era. What happens next rests with either Parliament or the Supreme Court, through future litigation.
Note(S):
1. Penal Code (Cap 63, Laws of Kenya) ss 158, 159, 160.
2. Constitution of Kenya 2010, arts 26, 43.
3. Penal Code (Cap 63) s 158 (attempting to procure abortion), s 159 (procuring miscarriage), s 160 (supplying drugs to procure miscarriage).
4. Constitution of Kenya 2010, arts 2(4), 26(1), 26(2), 43.
5. Constitution of Kenya 2010, arts 28, 31, 43.
6. Constitution of Kenya 2010, art 26(4).
7. Constitution of Kenya 2010, art 31.
8. Constitution of Kenya 2010, art 28.
9. Constitution of Kenya 2010, art 43.
10. Constitution of Kenya 2010, art 26(1).
11. Constitution of Kenya 2010, art 26(4).
12. Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC).
13. Constitution of Kenya 2010, art 31.
14. Constitution of Kenya 2010, art 28.
15. Karl Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146.
16. Centre for Reproductive Rights, ‘Court of Appeal Malindi Decision’ (reproductiverights.org, April 2026) reproductiverights.org/news/court-of-appeal-malindi-decision, accessed 20 May 2026.
17. Constitution of Kenya 2010, art 259(1).
