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Court of AppealOtherCourt of Appeal Application No. 154 of 2016 (arising from Constitutional Petition No. 292 of 2015)· [2016] KECA 235 (KLR)

British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health & 2 others [2016] KECA 235 (KLR)

Court of Appeal of Kenya
16 September 2016
DMDaniel Musinga
1,489 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal fast-tracked BAT Kenya's bid to suspend Kenya's Tobacco Control Regulations, ruling urgency must be decided on sound reasons, not sympathy.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal delivered by Musinga, JA on 16th September, 2016 in an interlocutory application under rule 47(5) of the Court of Appeal Rules. The applicant, a tobacco manufacturer, had petitioned the High Court challenging the legality of the Tobacco Control Regulations 2014 and section 7(2)(f) of the Tobacco Control Act. Mumbi Ngugi, J dismissed the petition on 24th March, 2016 but deferred the coming into force of the regulations for six months, to 25th September, 2016. The applicant filed a notice of appeal and a record of appeal, then an application for stay of the regulations pending appeal. Karanja, JA declined to certify the application as urgent, and under rule 47(5) the applicant informally sought an inter partes hearing on urgency, which came before Musinga, JA after Karanja, JA's annual leave and an adjournment before Mwilu, JA. The single judge framed one question: whether the pending stay application ought to be certified urgent. Relying on CMC Holdings Ltd v Nzioki and Equip Agencies Ltd v Akber Abdulahi Kassam Esmail, he held that the discretion must be exercised judicially, that the applicant bore the burden of showing something pressing, and that the appeal - concerning the health of all Kenyans, an issue of great public interest - would be rendered nugatory unless heard expeditiously, there being no inordinate delay. The court did not disturb the High Court judgment, which remains subject to the pending full-bench appeal. The application was certified urgent and referred to the President of the Court to empanel a bench to hear it as soon as possible. No costs order was made. The decision binds no lower court on the merits; it is a procedural certification of urgency preserving the applicant's right of appeal.

Key legal issues

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01

Certification of urgency under rule 47(5) of the Court of Appeal Rules

Holding

The application seeking stay of the Tobacco Control Regulations was certified as urgent because it raised an issue of great public interest, there was no inordinate delay in filing the appeal and application, and the appeal would be rendered nugatory unless the application was heard expeditiously before the regulations came into force on 25th September, 2016.

Reasoning

The single judge acknowledged the appeal concerned the health of all people in Kenya, an issue of great public interest. He found the applicant had lawfully challenged the regulations, that there was no inordinate delay (the record was voluminous, running into four volumes), and that the six-month moratorium imposed by the High Court would expire before the appeal could be heard. He held it was in the interest of justice and of all Kenyans that the court expeditiously pronounce itself on the legality of the regulations, while leaving the merits to the full bench.

p. 3
02

Whether an application under rule 47(5) is a review of the judge who declined to certify urgency

Holding

It is not a review; ideally it should be placed before the same judge who first perused it, but the wording of the rule permits it to be placed before any judge for inter partes hearing.

Reasoning

The court explained that in such an application the judge is not reviewing the decision of the judge who earlier declined certification without hearing the parties. The ideal course is for the same judge to hear all parties and either change her mind or maintain her position, but the rule's wording makes clear the application may be placed before any judge. This clarified procedure following Karanja, J.A.'s unavailability due to annual leave.

p. 3

Legal principles established

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  • In an application under rule 47(5), the single question is whether the pending application ought to be certified as urgent, and the single judge's discretion must be exercised judicially on sound reasons, not on whim, caprice or sympathy.
  • An applicant seeking certification of urgency at an inter partes hearing must demonstrate something pressing about the application by reason of risk or peril of harm or loss necessitating immediate action by the court.
  • An application under rule 47(5) is not a review of the earlier refusal to certify urgency; the rule's wording allows it to be placed before any judge to be heard inter partes.
  • A party's constitutional right of appeal ought to be preserved as much as possible, and an appeal may be rendered nugatory if ancillary applications are not heard expeditiously.

Court orders

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  1. 1.The application dated 30th June, 2016 is certified as urgent
  2. 2.The application be placed before the President of this Court to constitute a bench to hear it as soon as possible

Authorities

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Legislation

  • Court of Appeal Rulesrule 47(2)
  • Court of Appeal Rulesrule 47(5)
  • Court of Appeal Rulesrule 55
  • Tobacco Control Actsection 7(2)(f)
  • Tobacco Control Regulations 2014

Cases cited (2)

  • CMC HOLDINGS LIMITED versus NZIOKI
    [2004] 1 KLR 173
  • EQUIP AGENCIES LIMITED versus AKBER ABDULAHI KASSAM ESMAIL & 4 OTHERS
    [2013] eKLR
On appeal from
High Court of Kenya at Nairobi
Constitutional Petition No. 292 of 2015
Jurisdiction invoked
Rule 47(5) of the Court of Appeal Rules (informal application to a single judge for inter partes hearing on certification of urgency)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (22)

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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 Limited v Cabinet Secretary for the Ministry of Health & 2 others [2016] KECA 235 (KLR)", Case Analysis (2016). Court of Appeal Application No. 154 of 2016 (arising from Constitutional Petition No. 292 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/235/eng@2016-09-16

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