On 17th February 2017, the Court of Appeal dismissed an appeal filed by tobacco manufacturer British American Tobacco Kenya Limited (BAT) challenging the implementation of the Tobacco Regulations 2014 (the Regulations). In its appeal, BAT argued that the Regulations were unconstitutional and contradicted the Tobacco Control Act, 2007.
In the judgement delivered by a three judge bench of the Court of Appeal comprising of Justice Hannah M. Okwengu, Justice Festus Azangalala and Justice Fatuma Sichale, the learned judges dismissed the appeal in its entirety and upheld the decision of the High Court which held the Regulations to be constitutional.
In 2014, following Kenya’s ratification of the World Health Organization Framework Convention on Tobacco Control (WHO FCTC), the Cabinet Secretary for Health in conjunction with the Tobacco Control Board made Regulations to give full effect to the Tobacco Control Act, 2007 as well as bring Kenya into compliance with Article 5.3 of the WHO FCTC.
The Regulations were tabled before Parliament, gazetted on 5th December 2014 and were meant to take effect on 6th June 2015. Before this date, BAT went to the High Court to challenge the Regulations on the basis that they were oppressive, irrational and unreasonable. Further, they argued that the public was not consulted in the preparation of the Regulations. The court consequently gave temporary orders suspending the coming into effect of the Regulations pending the tenancy of the suit. The suit was heard and finally determined with judgment against BAT being entered on 24th March, 2016. The court then ordered that the Regulations were to take effect on 24th September, 2016.
Dissatisfied with the decision of the High Court, BAT appealed the decision, which resulted in interim orders stopping the coming into effect of the Regulations pending the hearing of the Appeal. The Appeal was heard on 18th October, 2016 and the judgment delivered on 17th February 2017.
Following the Court of Appeal judgement, the regulations take effect immediately. The Regulations which are aimed at safeguarding the public, provide for strict requirements on labelling of cigarette packets. The manufactures and/or importers of tobacco products are now required to illustrate the harmful effects of tobacco consumption by way of pictures on the cigarette packets. Apart from the specific labelling requirements, tobacco manufactures and/or importers will be required to make specified product and industry disclosures to the Cabinet Secretary, at the end of each financial year, for each type of tobacco product or for each brand manufactured and/or imported.
Finally, the Regulations also provide for a solatium compensatory levy to be paid by all tobacco manufacturers and/or importers. The levy will be assessed at the rate of two percent (2%) of the value of tobacco products manufactured or imported for each financial year.
The judgement is considered a big blow to the tobacco manufacturers who had earlier protested that the implementation of the Regulations would cost about Kshs. 93 million (about US$ 911,000) in one financial year.
The Court of Appeal decision is available here.
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