Update, 02.23.24: In a significant victory for all Kenyans, the Court of Appeal of Kenya dismissed this appeal and affirmed the right to respectful maternal health care under the Kenyan Constitution. Read about the Court of Appeal’s decision here.

Case background

On March 22, 2018, the High Court of Kenya in Bungoma issued a landmark judgment recognizing that the neglect and abuse of women seeking maternity health care services constitute a violation of rights as guaranteed by the Constitution of Kenya and international human rights law.

The High Court found that Bungoma County Hospital, the Bungoma County government and the Cabinet Secretary of Health had violated the rights of Josephine Majani when she was denied quality maternal health care and was physically and verbally abused by hospital staff. It also found that the national and county governments had failed to implement and monitor the standards of free maternal health care and services, which resulted in Josephine’s mistreatment, and awarded her KES 2,500,000 in damages for the harm she suffered.

The case, Josephine Oundo Ongwen v. The Attorney General and 4 Others (Bungoma High Court Petition No. 5 of 2014), was brought in 2014 by the Center for Reproductive Rights on behalf of Josephine.

Appeal by the County Government of Bungoma

Dissatisfied with the decision of the High Court, on May 2, 2018, the County Government of Bungoma appealed the entire judgment to the Court of Appeal of Kenya, the country’s second highest court. In its appeal, the County argued there was no evidence that the County had violated Majani’s rights—despite video and eyewitness accounts clearly documenting the abuse—and challenging the financial renumeration awarded for damages.  

The Court of Appeal heard arguments challenging the judgment on June 14, 2023.

Continuing to represent Josephine, the Center argued that the High Court of Kenya correctly ruled in 2018 that Josephine’s constitutional and human rights were violated and it urged the Court of Appeal to uphold that decision and affirm Josephine’s right to respectful and safe maternal health care.

On February 23, 2024, the Court of Appeal issued a sweeping decision affirming the right to respectful maternal health care and upholding the 2018 High Court judgment defending the human rights of Majani. “Health care settings across the country take note: Abuse, denial of care, and discrimination in maternal health care is a grave violation of rights and will not be tolerated in Kenya,” said Salima Namusobya, the Senior Regional Director at the Center in Africa.

In its decision, the Court of Appeal:

• Affirmed the High Court’s 2018 decision holding that the national and county governments had violated Majani’s rights to health, dignity, and freedom from cruel, degrading inhuman treatment and awarding Josephine damages for the harm suffered.  
• Dismissed the Appeal as meritless. 
• Held that appellants were directly liable for the violations against Majani and for failing to implement policies promoting respectful maternal care.  
• Emphasized that human rights-based maternity care, as stipulated in the Kenya Constitution, includes ensuring positive and affirming care experiences for women during childbirth, encompassing dignified, respectful healthcare and freedom from violence and discrimination.  
• Underscored the obligation of health systems to respect women’s sexual and reproductive health rights, including their right to dignity, which would entail adopting specific policies for respectful maternal care and ensuring their meaningful implementation.  
• Noted that health systems must be held accountable for mistreatment during childbirth and failure to prevent such practice and underscored the government’s obligation to ensure functional healthcare systems. 

About the case

• This case is about the right of all Kenyan women to give birth in a safe, respectful and supportive health care setting, free from discrimination and abuse. Already affirmed by the courts of Kenya, this right must be upheld by the Court of Appeal.
• Systemic denial of quality maternal health in Kenya is a violation of the Kenyan Constitution and international human rights.
• The Court of Appeal must hold the government accountable for violating its constitutional obligations to guarantee safe, quality maternal health care.
• As Kenya’s second highest court, the Court of Appeal sets precedent and gives guidance to lower courts, adding weight to this judgment.
• While incremental improvements have been made in access to health care in Kenya in recent years—in part due to favorable court court decisions—negligence and lack of access still exist.
• Nearly 5,000 women still die each year in Kenya due to complications in pregnancy and childbirth, but an estimated 80% of those deaths are due to poor quality care.

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