Two cigarette manufacturing firms yesterday asked the Supreme Court to throw out the Tobacco Control Regulations of 2014, arguing that they were introduced arbitrarily.
British American Tobacco (BAT) and Mastermind Tobacco Kenya told five Supreme Court judges in Nairobi that the regulations, enacted to regulate the production and consumption of tobacco and its products, were developed to restrict their commercial interests.
BAT filed the case to challenge the Court of Appeal’s dismissal of its plea against High Court Judge Mumbi Ngugi’s decision to disallow its petition challenging the regulations.
Through lawyers Kiragu Kimani, Irene Kashindi and James Tugee, the British firm argued that the regulations were created without proper public participation and stakeholder consultations.
The firm asked Chief Justice David Maraga, his deputy Philomena Mwilu, Justices Jackton Ojwang, Njoki Ndung’u and Smokin Wanjala to rule that the “failure to conduct proper consultations rendered the entire regulations unconstitutional".
“We urge you to find that in the process of enactment of law, if the process is found to be flawed, the entire legislation is vacuous.
"Failure by legislative bodies to follow due procedure of the law renders the legislation invalid and the product of that legislative work must be struck out,” Mr Kimani said.
He said a statutory instruments act was violated in developing the regulations due to the failure to develop a regulatory impact assessment to address issues arising out of the enforcement of the regulations.
The company said it was aggrieved with the provisions limiting interactions between public officials and the tobacco industry, which it termed as discriminatory and a violation of its constitutional rights.
The lawyers told the Supreme Court judges to also find as unconstitutional regulations that require it and other tobacco product manufactures to contribute two per cent of their revenues to a consolidated fund.
They said the levy was a form of forceful taxation imposed on their client and other cigarette and tobacco product manufacturers, and that it was derived from draconian Scottish, Roman and Dutch laws and not English common laws.
The regulations extended non-smoking zones to outdoor areas adjacent to public places, including streets, verandas and any others defined by the Health Cabinet Secretary, they said.
The rules, they added, violate constitutional rights to privacy and intellectual property rights by requiring them to reveal contents of their products and their revenue.
Senior State Counsel Mohamed Adow opposed the appeal, saying the firms were only protecting their commercial interests without regard to public safety and the health of millions of Kenyans.
The judges will notify the parties on the date of the ruling.