The Court of Appeal has overturned a High Court decision that had halted criminal proceedings in an abortion-related case in Kilifi, reinstating the prosecution and ordering that the matter proceed to full trial.
The judgment arose from consolidated appeals challenging the Malindi High Court’s 2022 ruling, which had quashed criminal charges and issued sweeping constitutional protections in favour of the accused.
The case involves Kilifi criminal cases, where PAK (initials used under court anonymity) and a medical practitioner were charged under sections 158, 159, and 160 of the Penal Code relating to the alleged procurement of abortion and supply of drugs to procure miscarriage.
Court records show that they had moved to the High Court, arguing that their arrest, detention, and prosecution violated constitutional rights.
They claimed that patients seeking reproductive healthcare were being unlawfully targeted and that forced medical examinations and arrests from hospital settings were unconstitutional.
The High Court agreed in part, finding that the process leading to the charges was flawed.
It quashed the criminal proceedings and issued orders restraining further prosecution, holding that aspects of the investigation violated rights to dignity, privacy, and freedom from cruel treatment.
However, the Court of Appeal disagreed, stating that the High Court had gone too far in stopping a criminal trial that had not been tested on evidence.
The appellate court held that “the criminal proceedings provide the requisite judicial platform on which the veracity of the charges stands to be tested.”
It added that stopping the trial was premature and unjustified in law.
The judges further emphasised judicial restraint, stating that courts must be cautious not to interfere with the mandate of prosecutorial and investigative agencies unless clear abuse is shown.
They found no evidence that the prosecution acted in bad faith or outside its legal mandate.
On the constitutional question, the Court of Appeal reiterated that abortion is not an absolute right under the Constitution.
It held that, “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 further clarified that claims of unlawful arrest, forced medical examination, or violation of privacy can still be raised during trial, stating that constitutional issues do not automatically invalidate criminal proceedings.
Ultimately, the Court of Appeal set aside the High Court judgment in its entirety and reinstated the criminal cases in Kilifi for hearing and determination on their merits.
It directed that each party bear its own costs due to the public interest nature of the matter.
The ruling now returns the dispute to the trial court, where the prosecution will proceed alongside the accused persons’ defence, shifting the case from constitutional litigation back into the criminal justice process.
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