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Supreme CourtDismissedPetition 5 of 2017

British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party)

Supreme Court of Kenya
26 November 2019
David Kenani MaragaD.K. MaragaPhilomena Mbete MwiluP.M. MwiluJackton Boma OjwangJ.B. OjwangSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki Ndungu
18,075 words in judgment
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AI-assisted case brief
·~72 min to read original · ~4 min brief

The bottom line

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Supreme Court upholds Tobacco Control Regulations, ruling they are constitutional and valid.

What this practically means

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The Supreme Court dismissed an appeal by British American Tobacco Kenya against the Tobacco Control Regulations 2014. The Court found that the regulations were made with adequate public participation, that restrictions on industry interactions with public officers are justified for public health, and that disclosure requirements do not violate intellectual property rights. The solatium contribution was ruled not a tax.

Executive summary

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The Supreme Court dismissed an appeal by British American Tobacco Kenya Limited challenging the Tobacco Control Regulations, 2014. The appellant had argued that the Regulations were unconstitutional for lack of public participation, that specific provisions were discriminatory, that disclosure requirements violated intellectual property rights, and that the Solatium Compensatory Contribution was an unlawful tax. The Court upheld the Court of Appeal decision which had affirmed the High Court's judgment. On public participation, the Supreme Court held that the Court of Appeal correctly applied the law and that the evaluation of evidence on adequacy of participation was a factual matter not raising a constitutional issue for the Supreme Court under Article 163(4)(a). The Court established a framework of guiding principles for public participation. On discrimination, the Court held that not all discrimination is unfair and that the limitation on interactions between the Tobacco industry and public officers under Part V of the Regulations is justifiable under Article 24 of the Constitution. On intellectual property rights, the Court found that the disclosure requirements under Part III of the Regulations are a reasonable and justifiable limitation under Article 24, balancing public health needs against individual rights. On the Solatium, the Court held that it is not a tax as it does not go to national or county revenue, and therefore raises no constitutional issue. The appeal was dismissed in its entirety, the Court of Appeal judgment was upheld, and each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the process leading to the making of the Tobacco Regulations 2014 was unconstitutional for lack of public participation?
  2. 2.Whether specific provisions of the Regulations are unconstitutional for being discriminatory as against the appellant?
  3. 3.Whether specific provisions of the Regulations violate the appellant’s right to privacy and infringe on Intellectual Property rights?
  4. 4.Whether the imposition of the Solatium compensation contribution amounts to unlawful taxation?
  5. 5.What are appropriate reliefs?

Key legal issues

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01

Whether the process of making the Tobacco Control Regulations 2014 was unconstitutional for lack of public participation.

Holding

The Supreme Court held that the Court of Appeal correctly applied the law on public participation and that the evaluation of affidavit evidence on whether there was adequate public participation is a factual matter not raising a constitutional issue for the Supreme Court under Article 163(4)(a).

Reasoning

The Court reviewed the legal framework for public participation under Articles 10 and 118 of the Constitution and its own jurisprudence. It found that the Court of Appeal rightly appreciated the principle and endorsed the High Court's analysis of the evidence. The Court concluded that the finding on adequacy of public participation was based on evaluation of affidavit evidence, which is a factual determination, and therefore not a matter of constitutional interpretation or application for the Supreme Court.

p. 31
02

Whether Part V of the Regulations limiting interactions between the Tobacco industry and public officers is unconstitutional for being discriminatory.

Holding

The Supreme Court held that the limitation is justifiable under Article 24 of the Constitution, as not all discrimination is unfair, and the limitation serves the legitimate purpose of protecting public health.

Reasoning

The Court agreed with the lower courts that the inequality of treatment in limiting interaction between public officers and the Tobacco industry does not amount to unfair discrimination. It noted that the rights under Article 27 are not non-derogable and can be limited under Article 24. The Court found that the Superior Courts correctly considered the effects of Tobacco use in justifying the limitation, as such considerations are necessary for legitimate regulation. The limitation applies to all players in the industry and is proportionate to the public health objective.

p. 34
03

Whether the disclosure requirements under Part III of the Regulations violate the appellant's right to privacy and intellectual property rights.

Holding

The Supreme Court held that the limitation on intellectual property rights through disclosure requirements is reasonable and justifiable under Article 24 of the Constitution, as it balances public health needs against individual IP rights.

Reasoning

The Court applied the doctrine of proportionality to resolve the tension between competing rights. It found that the Court of Appeal correctly balanced the appellant's intellectual property rights against the need to protect public health from the effects of Tobacco use. The disclosure requirements serve counteractive measures to control and mitigate Tobacco-related health problems, and the limitation is proportionate to that objective.

p. 37
04

Whether the imposition of the Solatium Compensatory Contribution amounts to unlawful taxation under Article 210 of the Constitution.

Holding

The Supreme Court held that the Solatium Compensatory Contribution is not a tax because it does not go towards national or county revenue and is not paid into the consolidated fund; it is a levy provided for by statute for a specific purpose.

Reasoning

The Court agreed with the Court of Appeal that the contribution is not a payment that goes towards national revenue. It added that neither is it a payment to county revenue or to the consolidated fund for annual budgeting and appropriation. The solatium is provided under a statute with a clear framework on its purpose. The mere fact that legislation provides for levying an amount does not transform it into a tax. Since the contribution is not a tax, the appeal raised no constitutional issue as to how it was enacted.

p. 38

Legal principles established

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  • Public participation is a living constitutional principle that must be real, not illusory, and the duty-bearer must facilitate it.
  • Lack of a prescribed legal framework for public participation is no excuse; the entity must give effect to the principle using reasonable means.
  • Not all discrimination is unfair; each case must be evaluated on its facts, and limitations can be justified under Article 24.
  • A payment that does not go to national or county revenue or the consolidated fund is not a tax under Article 210.
  • Limitation of intellectual property rights for public health is proportionate and justifiable under Article 24.

Court orders

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  1. 1.That the Petition of Appeal No 5 of 2017 is hereby dismissed.
  2. 2.That the Judgment of the Court of Appeal of Kenya at Nairobi in Civil Appeal No 112 of 2016, is hereby upheld.
  3. 3.Each party to the Appeal shall bear their own costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority

Wrote the judgment

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 112 of 2016
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Setting aside the Court of Appeal judgment and entering judgment as prayed in the High Court petition

The Supreme Court found the Court of Appeal judgment sound and dismissed the appeal.

p. 39

Declaration that the Tobacco Control Regulations 2014 are void for lack of public participation

The Court held that the issue of public participation was a factual evaluation by the lower courts and raised no constitutional issue for the Supreme Court.

p. 31

Declaration that Part V of the Regulations limiting interactions is unconstitutional for discrimination

The Court found the limitation justifiable under Article 24 of the Constitution.

p. 35

Declaration that the disclosure requirements under Part III of the Regulations violate intellectual property rights

The Court held that the limitation was reasonable and justifiable under Article 24, balancing public health needs against IP rights.

p. 37

Declaration that the Solatium Compensatory Contribution is an unlawful tax

The Court held that the solatium is not a tax as it does not go to national or county revenue, and its enactment raises no constitutional issue.

p. 38

Costs

Each party to the Appeal shall bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, this Court finds that the Petition of Appeal dated 31st March 2017 has no merit and the same is dismissed in its entirety.
p. 39 Final orders dismissing the appeal
public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people.
p. 30 Nature of public participation
We are in agreement that not all forms of discrimination are unfair. Each case where discrimination is alleged has to be evaluated on its own peculiar facts.
p. 32 Discrimination analysis
The Court of Appeal was emphatic that the contribution is not a payment that goes towards the national revenue. We add that neither is it a payment that goes to county revenue.
p. 38 Solatium is not a tax
We find and hold that there is nothing of constitutional interpretation and/or application in this finding, and/or conclusion by the Court of Appeal on how the High Court evaluated the Affidavit evidence before it.
p. 31 Limits of Supreme Court jurisdiction under Article 163(4)(a)

Key timeline

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2014-01-01
Tobacco Control Regulations 2014 enacted
2016-01-01
Court of Appeal judgment in Civil Appeal No 112 of 2016
2017-01-01
Petition of Appeal No 5 of 2017 filed at Supreme Court
2024-01-01
Supreme Court judgment dismissing appeal and upholding regulations

Practical implications

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For lawyers

Public participation defense strengthened

When challenging regulations for lack of public participation, you must show the process was illusory, not just that no formal framework existed. Courts will defer to factual findings on adequacy by lower courts unless a clear constitutional error is shown. Prepare detailed affidavit evidence to demonstrate participation.

For businesses

Regulatory compliance is now mandatory

Businesses in regulated industries like tobacco must comply with disclosure requirements and interaction restrictions. The Court upheld these as proportionate limitations on rights. Non-compliance risks legal action, and arguments based on discrimination or IP rights are unlikely to succeed if public health objectives are clear.

For individuals

Public health takes priority over industry rights

Individuals benefit from stronger tobacco control measures. The ruling confirms that the government can limit industry activities to protect health, even if it affects business rights. If you are affected by tobacco use, you can rely on these regulations to seek enforcement and hold authorities accountable.

Frequently asked questions

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Are the Tobacco Control Regulations 2014 in Kenya still valid after the Supreme Court case?+

Yes, the Supreme Court dismissed British American Tobacco's appeal, upholding the regulations. They remain fully in force and constitutional.

Does the solatium contribution in Kenya's Tobacco Control Act count as a tax?+

No, the Supreme Court ruled it is not a tax because it does not go to national or county revenue or the consolidated fund. It is a statutory levy for a specific purpose.

Can the government limit interactions between tobacco companies and public officers in Kenya?+

Yes, the Court found such limits are not unfair discrimination. They are justified under Article 24 to protect public health, and apply equally to all industry players.

What does the Supreme Court ruling mean for public participation in Kenya?+

Public participation is a living constitutional principle. Even without a formal framework, the duty-bearer must ensure real participation. Courts will review evidence to decide if it was adequate.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party)", Case Analysis (2019). Petition 5 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/15/eng@2019-11-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.