–Marion Joy, LL.B- Kabarak University, PGDL- Kenya School of Law, Advocate of the High Court of Kenya
In April 2026, Kenya’s Court of Appeal handed down its decision in Attorney General v PAK. It overturned a High Court decision that had shielded a high school student, PAK, and her medical officer from criminal proceedings for allegedly procuring an abortion and allowed those proceedings to resume. This piece contends that the appeal decision breached established judicial principles by introducing and focusing on an issue that neither party had raised at the expense of its Constitutional duty to advance human rights. The Court also failed to engage with the harrowing facts of the case or consider how its reasoning could jeopardize human rights protections going forward.
Background
In 2019, PAK checked into a clinic to get emergency treatment after she developed pregnancy complications. The attending medical officer determined that she had suffered a “spontaneous abortion” and placed her in a ward to recuperate. While in her hospital bed, the police raided the hospital, arrested her, and forcefully obtained her medical records. Later, they compelled her to take a medical examination and sign a statement. Her school was alerted to the developments, exposing her to public ridicule. Her attending medical officer was also arrested. They were not accorded legal counsel. They were consequently arraigned before the Magistrates’ Court.
Aggrieved, they filed a petition before the High Court. They argued that the provisions of the Penal Code criminalising abortion were unconstitutional, and their arrest violated various human rights, including human dignity, privacy, health and fair trial.
The High Court Decision
The petition at the High Court succeeded partially. The Court upheld the provisions of the Penal Code that criminalise abortion, but recognised that they fail to capture the exceptions to abortion in Article 26(4) of the Constitution, i.e. where, in the opinion of a trained health professional, there is a need for emergency treatment; if the life of the mother is in danger; or where written law allows. The Court then urged Parliament to enact legislation on abortion.
More crucially, the Court recognised that the decision to initiate an investigation, arrest and commence criminal proceedings against the Petitioners was marred with irregularities from the outset. Further, the High Court found that subjecting PAK to a medical examination violated her constitutional rights, including the right to freedom from torture (Article 25), life (Article 26(4)), human dignity (Article 28), freedom and security of the person (Article 29), and right to privacy (Article 31). Moreover, it held that forcing her to sign a statement and failure to accord her legal counsel violated her right to a fair trial (Article 50(2) and 50(4)).
The Court added that the forceful obtaining of PAK’s records violated the privacy of communications between medical officers and patients, and that a trained medical officer exercising good judgment shall not be guilty of crimes related to abortion. Dissatisfied, the State appealed to the Court of Appeal.
The Court of Appeal Decision
Understanding the Appeal Decision also requires keeping in mind Article 165 (3) and (7) of the Constitution, which give the High Court jurisdiction to determine claims of violations of Human Rights, interpret the Constitution, and supervise the subordinate courts, such as the Magistrates’ Court. Accordingly, litigants such as PAK and the Medical Officer have had the liberty of filing Constitutional Petitions at the High Court in respect of civil and criminal proceedings at the Magistrates’ Court.
The Court decided that this shouldn’t have happened. It overturned the High Court decision and directed the Magistrates’ Court to resume the criminal proceedings and determine any arising human rights questions. As explained below, this conclusion was arrived at in a manner that violated various judicial principles and abandoned the Court’s duty to advance human rights.
How the decision violated established judicial principles
In granting the Magistrates’ Court jurisdiction to determine claims of violation of human rights and the Constitution, the Court contradicted the text of the Constitution and breached multiple judicial principles, five of which are addressed below.
First, the reasons for the decision were not offered. The Court began by recognising that Article 165 (3) and (7) of the Constitution grant the High Court the jurisdiction it exercised. Nonetheless, it decided that the Magistrates’ courts should have determined the questions raised at the High Court, because it has jurisdiction to determine constitutional and human rights questions that arise in the course of proceedings before it. This is even though neither the Constitution nor legislation expressly grant the Magistrates Court such jurisdiction. The Appeal turned on this finding.
It would be expected that such a consequential divergence from the express text of the Constitution would be supported by an analysis of principles, precedent, legal literature or supporting legal provisions. However, the finding was summed up in two paragraphs (paragraphs 44-45) that lacked any such analysis. The judicial duty to give reasons has crystallised over the years in Kenya. Reasons are invaluable if a decision is to be appealed or questioned. Affected parties are more likely to feel they were treated fairly if they’re given reasons and they see that issues were carefully considered. Additionally, reasons enhance the transparency that builds public confidence in the judiciary. Consequently, the Court’s failure to give reasons undermined their duty to give reasons, and in extension, confidence in the finding.
Second, it is a truism to say that jurisdiction flows from the Constitution, legislation or both; it cannot be expanded through judicial craft. In this case, neither the Constitution nor legislation, specifically the Magistrates’ Court Act, grant the Magistrates’ Court the jurisdiction to determine constitutional and human rights questions. It’s been conferred by judicial craft, which is not permissible, in principle.
Third, the issue of jurisdiction of the Magistrates’ Court was introduced at the appeal stage. This is against the principle that an appellate Court cannot determine issues that were not raised before the court of first instance, which in this case was the High Court. An appellate Court is not a court of first instance, and thus it does not exercise original jurisdiction. Therefore, it does not determine novel issues, except for questions regarding its own jurisdiction and matters that are exclusively within its original jurisdiction under the law. For example, presidential election petitions, advisory opinions, and matters regarding the declaration of a state of emergency can only be determined in the first instance by the Supreme Court under Article 163 (3) (a), 163 (6) and 58 (5) of the Constitution, respectively.
An appellate court may offer jurisprudential guidance on an important issue that wasn’t raised at the court of first instance, but such guidance should not affect the outcome of the case. The Supreme Court demonstrated this in Kamande v Republic, where it was called to answer crucial questions on whether the ‘battered woman syndrome’ defence in criminal law was applicable in Kenya, and if it was available to a woman accused of murdering her lover. The questions had not been raised at the trial Court, but the Supreme Court answered them anyway, finding the defence applicable in Kenya. However, it dismissed the petition because the questions had been introduced on appeal. This was in observance of the principle in discussion herein, which it rubberstamped as “important and central” to Kenya’s appellate scheme(paras 96-98). The principle aims to respect the competence of courts at each tier of the judicial hierarchy in resolving disputes.
Applied to the present case, it means that while the Court of Appeal was at liberty to offer its two cents on the jurisdiction of the Magistrates’ Court, and while it may even be desirable to allow the Magistrate’s Court to determine constitutional and human rights questions that are incidental to the case before it, the Appeal should not have turned on this issue. PAK’s jeopardised rights should not have been subordinated to this issue.
Fourth, the question of jurisdiction was introduced by the Court itself, not the parties. This contravenes the principle that in an adversarial legal system such as Kenya’s, it is the parties who set the agenda through pleadings. Pleadings bind both parties and the Court. It’s neither desirable nor permissible for a court to frame an issue not raised via pleadings. The principle ensures parties are alive to the issues in contention so they can present their thoughts. Thus, the judicial introduction denied the parties the benefit of making their arguments on the question.
How the decision endangers women and healthcare providers
Article 259 (1) (b) of the Constitution directs that judicial interpretation should advance human rights. It should favour the enjoyment of human rights. For this reason, courts should be “…alert, alive and sensitive” to the needs of the Petitioners. Further, in making decisions, courts are called to adopt a “situation sense” approach, which considers how a decision will not only affect the case, but also similar cases yet unborn. The Court in AG v PAK breached the aforementioned requirements in three ways, as elaborated below.
First, the petitioners are real human beings who approached the court seeking refuge from criminal proceedings that were violating their rights. These violations ranged from PAK’s arrest while she was in a hospital bed, to her forceful medical examination, and public humiliation, which was exacerbated by the criminal proceedings. The Court’s primary task was to determine whether such processes violate human rights, and give remedies. In its analysis, the Court failed to consider the harrowing facts of the case and the human rights violations occasioned by the police. Instead, it gave pre-eminence to an issue that neither party had raised (the question of the Magistrates’ Court’s jurisdiction). This is contrary to Article 259 (1) of the Constitution, which requires that Courts prioritise human rights.
Second, the Court failed to give a human-rights-based solution to address the blanket ban on all abortions under the Penal Code, which fails to reflect the exceptions under Article 26 (4) of the Constitution. The Court left it to the prosecution to establish the element of ‘unlawfulness’ in every abortion (para 42). This is concerning because in Kenya, the criminal process begins with the police, who gather evidence and submit it to prosecutors, who decide whether or not they’ll institute charges. Effectively, the Court allowed the police to investigate and arrest women who’ve had an abortion willingly or not, and the women may remain in the criminal process until a prosecutor makes a decision whether to proceed.
Resultantly, many women may go through what PAK went through before they are arraigned in a Magistrates’ court, which, according to the decision, is the forum where they should defend their rights.
Third, the Court brushed over questions on the constitutionality of abortion and human rights violations arising from abortion related criminal proceedings. The Court stated that the provisions on abortion are ‘self-explanatory’ (para 39). This was akin to saying ‘the law is very clear,’ yet judicial interpretation is indispensable because the law is nuanced. It is also against the Constitutional doctrine that the law is always speaking, under Article 259 (3). The doctrine means that in its application, a provision, though embedded in its own time, is to be construed in accordance with the need to treat it as a current law. It would be impossible for the law to ‘keep speaking’ if it remains ‘self-explanatory.’
It is also against holistic interpretation, which requires that Constitutional provisions be read alongside each other, to maintain a rational explication of what the Constitution must be taken to mean in light of the issues in dispute. By reading Article 26 (4) in isolation as a ‘self-explanatory’ provision, the Court failed to counterbalance it against rights such as the right to reproductive healthcare (Article 43 (1) (a)), dignity (Article 28), and privacy (Article 31). The Court thus failed to interpret the Constitution holistically.
In the end, the Court missed an opportunity to offer human-rights-based guidance on criminal proceedings related to abortion. In so doing, the Court failed to be alive, alert or sensitive to how their decision would affect PAK and other persons accused of abortion related crimes by subjecting them to criminal proceedings that were likely to keep violating their human rights.
Proposed way forward
If and when the decision is appealed, the Supreme Court should begin from a simple premise: that its first duty is to advance human rights and to remain alive to how its reasoning affects real women and medical professionals, rather than to focus on questions the parties never raised. From that orientation, the decision should be overturned for the reasons explained above.
The Court should also offer a human-rights-based interpretation of Article 26 (4) of the Constitution, which allows abortion in limited circumstances, and Sections 158-160 of the Penal Code, which criminalise all abortions.
Lastly, should the Supreme Court elect to offer guidance on the Magistrates’ Court’s jurisdiction in constitutional matters, such guidance should not negatively impact the High Court’s decision. This is because the jurisdiction question was not raised at the High Court, and the parties didn’t have a chance to address it.
Conclusion
The Court of Appeal’s decision brings to mind Justice L’Heureux-Dubé’s conclusion in Baker v Canada that;
“…the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of [the Petitioners], and did not consider them as an important factor in making the decision…”
The Court of Appeal failed to be “alive, attentive and sensitive” to the interests of PAK by paying little attention to the agonising facts of the case and to the implications of its decision on the rights of other women and medics attending to women. The Decision allows police to subject women who have suffered abortions (voluntary or otherwise) and their medical providers to criminal investigation and arrests pending prosecutorial decision on whether the abortion is ‘lawful’. All eyes now turn to the Supreme Court, in hopes that it will overturn the Decision and protect women and medical professionals from the looming, unguided, degrading, and invasive criminal processes.
Suggested citation: Marion Joy, How Kenya’s Court of Appeal Allowed the Indiscriminate Arrest of Women and Healthcare Providers for Abortion, Int’l J. Const. L. Blog, Jul. 30, 2026, at: http://www.iconnectblog.com/how-kenyas-court-of-appeal-allowed-the-indiscriminate-arrest-of-women-and-healthcare-providers-for-abortion/