The Petitioner’s Case
3.The heart of the petition as supported by the petitioner’s affidavit dated 30th July 2019 challenges the legality of the production, manufacture, distribution, management, dissemination, control, consumption and use of tobacco in Kenya as allowed by the respondents. The petitioner claims this to be in total disregard of the effects of growing, consuming, selling and general use of the tobacco in the society.
4.He informed that the control and use of tobacco products in Kenya is regulated under the Tobacco Control Act No.4 of 2007 hence making its use legal. He took issue with the fact that tobacco products are not banned in totality yet present prominent risks such as cancer to the health of individuals consuming them or exposed to them as second-hand smokers. This is notwithstanding the fact that every person in Kenya has a right to attain the highest attainable standard of health.
5.He further deposed that the Public Health (Control of Shisha Smoking) Rules, 2017 are selective in criminalization of shisha and protection of shisha users from harmful substances to the exclusion of other tobacco products without any justification or regard to the effects and health risks involved in production of these tobacco products. Further that the legislation on smoking control is inconsistent in its protection since for example various ailments such as cancer that are caused by the use of cigarettes are not listed as part of the warning in the cigarette packages and neither is there a requirement to inform the public of such health risks.
6.He averred that since the government is responsible for the legalization of use of tobacco products it is also obligated to go beyond informing the public of such risks and disallow use of these products in line with the dictates of the Constitution under Articles 2, 10, 19, 20, 21, 24, 26, 27, 28, 42, 43, 55, 69 and 70. He noted that the Health Act No.21 of 2017 which gives effect to Article 43 of the Constitution provides under Section 5(1) that every person has the right to the highest attainable standard of health. Accordingly, it was deposed that there was no justification for banning certain tobacco products such as shisha while retaining use of its products such as cigarettes.
7.He averred that the ailments that are occasioned by tobacco products are debilitating yet the respondents were non-committal in their approach in the legislations covering these products. He further averred that the legislations were insufficient in protecting the public and so only a total ban of the products would suffice to resolve the matter. He noted that the Constitution in light of this, places an obligation on the government to protect the greater public health interest.
8.Taking into consideration the health risks attached to the use of tobacco products he deposed that the manufacture, importation, distribution, sale and consumption of cigarettes and tobacco products ought to be declared illegal in view of the dictates of the Constitution. He added that the attendant economic interest and revenue acquired from these products ought not to override the greater public health agenda in breach of the constitutional dictates which the respondents are bound by.
The 1st & 2nd respondent’s case
9.The 1st & 2nd respondents in opposing the petition filed their replying affidavit dated 17th February 2022 sworn by Mutahi Kagwe, the 2nd respondent herein. He averred that there exists legislation in Kenya, being the Tobacco Control Act No. 4 of 2007 which makes provisions to control the production, manufacture, sale, labelling, advertising, promotion and sponsorship of tobacco products, to provide for the Tobacco Control Board, to regulate smoking in specified areas, and connected purposes.
10.In addition he noted that the 1st and 2nd respondents are mandated under Section 4 of the Act to prescribe the permissible levels of tar, nicotine, and such other constituent of tobacco products or their emissions as the Minister may specify, which levels shall not exceed the levels set by the World Health Organisation; prohibit the addition and use of any harmful constituent or ingredient in the production of tobacco products; prescribe the methods to be used In testing tobacco products and their emissions; prescribe the information that manufacturers shall provide to the Board including information on tobacco products and their emissions, sales and advertising data, and Information on product composition, ingredients, hazardous properties and brand elements; subject to the Act, control the labelling, packaging, sale, distribution, promotion or advertising of tobacco products so as to ensure that the purchaser or consumer of a tobacco product is not misled as to its quality, quantity, character, value, composition, effect, merit or safety and present injury or harm to the health of the consumer.
11.He deposed that the 1st and 2nd respondents had sensitized the tobacco farmers on the impact of tobacco farming and its use. They had also assisted the farmers to transition from tobacco products to farming of other crops. Additionally, he noted that Kenya is a party to the World Health Organization Framework Convention on Tobacco Control (WHO FCTC), which Provides for scientifically proven strategies and interventions for tobacco control in member states. Likewise, that Kenya is also a party to the WHO Protocol to eliminate the illicit Trade in Tobacco Products which provides for means of countering illicit trade in tobacco products, a key aspect of a comprehensive tobacco control policy. In view of this it was deposed that all legislation concerning tobacco products was in compliance with international law.
12.He deponed that a total ban of tobacco products as prayed for by the petitioner would not automatically translate to the fulfillment of the highest attainable standards of health. Further, no empirical data had been adduced by the petitioner to support this claim.
13.He deponed therefore that the sudden and drastic approach proposed by the petitioner to address tobacco production, manufacture, sale and use would have adverse effects as the same would be taken outside the regulator’s control in turn encouraging its illicit trade. This in the end would affect the long term national tobacco control approach which is towards a tobacco free nation. He averred that the Tobacco Control Act and the Regulations enjoy the presumption of constitutionality and had never been declared unconstitutional.
14.He deposed further that the petitioner’s ‘prayer (d) on a declaration that cancer is a tobacco related ailment and a national disaster, requiring special allocation is outside the jurisdiction of his court.
The interested party’s case
16.The interested party through its replying affidavit dated 30th November 2021 sworn by Shirley Gulenywa, the Marketing & Regulatory Counsel averred that the petition does not disclose any reasonable cause of action. This is because the constitutional Court does not have jurisdiction to introduce any new laws or amend legislation. In the same way, that the jurisdiction to issue a ban on the sale of tobacco products which is currently legal is a preserve of the National Assembly.
17.It was deposed that the orders sought would result in the contravention of its constitutional right to property under Article 40(1) of the Constitution. This is since the prayers seek to completely curtail its right to manufacture and sell tobacco products. That grant of the prayers would contravene its right of legitimate expectation to carry out its commercial activities.
18.The deponent noted that the interested party had publicly stated that combustible cigarettes pose serious health risks which would only be avoided by not smoking or ceasing to smoke all together. He deposed that the petitioner had not advanced any empirical and scientific evidence that the proposed ban on tobacco products would achieve the desired goal set out in the petition. In effect it was averred that a banning on all tobacco products would result in sale of illicit tobacco products which will not have been vetted and approved by the requisite government entities.
The petitioner’s submissions
19.The petitioner through the firm of Kithi and Company Advocates filed written submissions and a list of authorities dated 4th April 2022.The issues identified for determination are:i.Whether the use of Tobacco products in consumable items is contrary to Articles 2, 10, 19, 20, 21, 24, 26, 27, 28, 42, 43, 55, 69, 70, 165, 258 and 259 of the Constitution;ii.Whether the petitioner is entitled to the prayers sought.
20.On the right to a clean and healthy environment under Article 42 of the Constitution, Counsel submitted that tobacco growing, production and manufacturing have grave harmful effects on the environment. As such the survival of the entire tobacco industry is a violation of the right to a clean and healthy environment. It was argued that the Public Health Act, The Public Health (Tobacco Products Control) Rules 2006, the Public Health Control of (SHISHA Smoking Rules) and the Tobacco Control Act do not adequately address and protect the right to a clean and healthy environment as there is no way to eliminate the effects caused by the product.
21.In support of this point, reliance was placed on the case of Joseph Leboo & 2 others vs. Director Kenya Forest Services & another (2013) eKLR where it was held that a reading of Articles 42 and 70 of the Constitution make it clear, that one does not have to demonstrate personal loss or injury, in order to institute a cause aimed at the protection of the environment.
22.On the right to economic and social rights under Article 43 (1) (a) and (b) of the Constitution, Counsel submitted that the tobacco industry has actively contributed to violation of this right because it has lowered the standard of health of the persons living in Kenya. This is because tobacco kills up to half of its users which equates to 8 million deaths a year globally, making it currently the world's single biggest cause of preventable death among other dangers associated with its use.
23.Furthermore, he noted that the tobacco industry offends the provisions on Article 55 (d) of the Constitution which provides that the State shall take measures, including affirmative action programs, to ensure that the youth are protected from harmful cultural practices and exploitation. In support reliance was placed on the case of Republic v Ministry of Health & 3 others Ex-parte Kennedy Amdany Langat & 27 others (2018) eKLR where the court found that the Cabinet Secretary has wide ranging powers under Section 36 of the Public Health Act to undertake measures to ensure the safety of public health in the Republic which should apply mutatis mutandis in this case also.
24.On equality under the law, Counsel submitted that the respondents by allowing the tobacco industry to thrive, have contributed to the violation of Article 12 (1) and 19(1) of the Constitution. This is because the survival of this industry prevents the petitioner and other members of the public from enjoying their rights to an unpolluted environment as enshrined in the Constitution. On the other hand the industry only benefits a few being the manufacturers, sellers and consumers.
25.Counsel additionally submitted that in view of this, the petitioner and the public are suffering an unfair limitation of their rights contrary to Article 24 of the Constitution. In support reliance was placed on the case of Thulani Maseko vs. Prime Minister of Swaziland & others 2180/2009 [2016) SZHCn180 where it was noted that it is the duty of the government to show that any limitation of a fundamental freedom is justified.
26.Counsel submitted that this Court in interpreting the Constitution was under a mandatory duty to adopt an interpretation that conforms to Article 259 of the Constitution as held in the case of Apollo Mboya v Attorney General & 2 others (2018) eKLR. He submitted thus that the main question this Court is to answer is what was the purpose of the Constitution in Articles 2, 10, 19, 20, 21, 24, 26, 27, 28, 42, 43, 55, 69, 70, 165, 258 and 259.Further whether the Constitution intended to give supremacy to the Tobacco industry and its consumers over the rest of the public. He similarly invited the Court to consider the consequences of having the Tobacco industry in place to date and whether regulating the industry had mitigated effects of tobacco products.
27.On the final issue Counsel submitted that the petitioner had demonstrated how the tobacco industry affects the public and this Court ought to award remedies sought as the legal burden of proof under Section I 07 of the Evidence Act had been discharged.
The respondents’ submissions
28.The respondents through State Counsel, Jackline Kiramana filed written submissions dated 7th June 2022. She identified the issues for determination as follows:i.Whether the provisions of the laws regulating use of tobacco and tobacco products in Kenya are in violation of the Constitution;ii.Whether the respondents have in any way violated the rights alleged by the petitioner; andiii.Whether the petitioner is entitled to the prayers sought;
29.On the first issue, Counsel submitted that the petition took issue with the Tobacco Control Act, 2007 and the Tobacco Control Regulations, 2014 for legalization of the use of tobacco in Kenya which according to the petitioner was in violation of the right to the highest attainable standard of health and the right to a clean environment as guaranteed by the Constitution. In view of this Counsel submitted that the Act’s constitutionality had never been called to question and so it enjoys the presumption of constitutionality. It was argued that the petitioner had failed to rebut this presumption.
30.Likewise, it was submitted that the constitutionality of the Tobacco Control Regulations, 2014, was extensively litigated upon and the Regulations found to be constitutional by the Supreme Court’s in its decision in 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)  eKLR. Moreover, that the question relating to the ban of shisha use was conclusively litigated upon and judgement entered in favor of the said ban, in Republic v Ministry of Health & 3 others Ex-parte Kennedy Amdany Langat & 27 others  eKLR.
31.Counsel stressed that the questions of constitutionality of the legislations had already been settled and this Court barred by the doctrine of res judicata from adjudicating on the same. It was submitted as such that the cited decisions were judgements in rem, and hence applicable in the instant petition.
32.Turning to the second issue, Counsel submitted that the use of tobacco and tobacco products does not happen in a vacuum. This is because the same is regulated by both national and international laws. Taking this into consideration it was noted that the petitioner had not adduced any evidence to show that the respondents had in any way violated the provisions of the impugned laws. It was argued thus that the respondents could not be penalized for complying with the laws relating to tobacco products.
33.On the final point, Counsel submitted that the prayers sought in the petition were defective and should not be granted. This is because the prayer sought relating to a declaration that cancer is a national disaster is a preserve of the Executive arm of Government. Likewise, that this Court lacks jurisdiction to give budgetary allocation, whether special or otherwise as the same is a preserve of the legislative arm of Government.
The interested party’s submissions
34.The firm of Kaplan and Stratton Advocates on behalf of the interested party filed written submissions dated 8th June 2022.Counsel noted that they additionally adopted the submissions of the respondents. Counsel identified the issues for determination as follows:i.Whether the Constitutional Court has jurisdiction to issue a ban on the sale of tobacco products; andii.Whether the sale of tobacco unjustifiably infringes constitutional rights and whether a ban on the sale of such products is the only measure that would adequately protect such rights.
35.Counsel on the first issue submitted that owing to the doctrine of separation of powers, this Court lacks jurisdiction to amend the Tobacco Control Act by issuing the orders sought by the petitioner. This is since it is a sole preserve of the National Assembly under Article 109 of the Constitution 2010. In support reliance was placed on the case of Law Society of Kenya vs Kenya Revenue Authority and Another (2017) eKLR where it was held that it is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provisions is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate.
36.Turning to the second issue, Counsel submitted that the production and sale of tobacco products is a lawful activity regulated by the Tobacco Control Act, which enjoys a presumption of constitutionality. As such there was no breach of Articles 2, 10, 19, 20, 21, 24, 26, 27, 28, 42, 43, 55, 69 and 70 of the Constitution as the sale of tobacco products is already regulated.
37.On whether the petitioner had demonstrated that all tobacco products have the same risk profile, Counsel noted that the petitioner had failed to provide evidence demonstrating that all tobacco products are in fact equally harmful. It was submitted that there is overwhelming evidence that not all tobacco products have the same risk profile, rather that certain categories of tobacco products that do not contain tobacco or do not involve the combustion of tobacco may pose significantly reduced risk compared to traditional cigarettes and shisha.
38.In conclusion Counsel submitted that this Court lacks the requisite jurisdiction to grant the orders sought in the petition because doing so would amount to an amendment of the Tobacco Control Act.
Analysis and Determination
39.I have carefully considered the pleadings, submissions, case law and the law and in my view the issues for determination are:i.Whether the use of tobacco products in consumable items and cigarettes and the laws governing the control of production, supply, management, dissemination, consumption and use of Tobacco products violates Articles 2, 10, 19, 20, 21, 24, 26, 27, 28, 42, 43, 55, 69 and 70 of the Constitution.ii.Whether the petitioner is entitled to the reliefs sought.
Issue No. (i). Whether the use of tobacco products in consumable items and cigarettes and the laws governing the control of production, supply, management, dissemination, consumption and use of Tobacco products is contrary to Articles 2, 10, 19, 20, 21, 24, 26, 27, 28, 42, 43, 55, 69 and 70 of the Constitution
40.The petitioner’s central contention in this matter revolves around the legality of the production, manufacture, distribution, management, dissemination, control, consumption and use of tobacco in Kenya as allowed by the respondents through the Tobacco Control Act and the Tobacco Control Regulations, 2014. He took issue with the fact that tobacco products are not banned in totality despite the prominent risks associated with growing, consuming, selling and their general use in the society. This he argued was selective since shisha products had been banned by virtue of the Public Health Act, Cap 242 and the Public Health (Control of Shisha Smoking) Rules, 2017.
41.The respondents opposed this assertion stating that the said laws enjoyed the presumption of constitutionality since their constitutionality had not been rebutted and challenged. Moreover, it was noted that the Supreme Court in the case of 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)  eKLR while examining a similar question concluded that the legislations were constitutional.
42.In the same way it was submitted that the constitutionality of the Public Health (Control of Shisha Smoking) Rules, 2017 had been litigated upon and judgement entered in favor of the same, in Republic v Ministry of Health & 3 others Ex-parte Kennedy Amdany Langat & 27 others  eKLR. I note that the constitutionality of these laws was upheld in these cases and so stand guided by the same.
43.In addition to that, it is appreciated that at the forefront, the spirit of the Constitution must preside and permeate the process of judicial interpretation as spelt out under Article 259 of the Constitution. Equally, this Court in interpreting a Statute is obligated to bear in mind as a first principle that there is a general presumption that Acts of Parliament are enacted in conformity with the Constitution. This was affirmed by the Court of Appeal of Tanzania in the Ndyanabo vs. Attorney General case (2002) AHRLR 243 (TzCA 2002) in the following words:
44.The presumption of constitutionality bears its origin from the fact that the Constitution bestows upon the legislature the power to make laws having force of law in Kenya. This is provided under Article 94(5) of the Constitution which as follows:
45.The petitioner herein as it can be discerned from the petition is aggrieved by the use of tobacco products in Kenya and questions why these products have not been banned in totality. I note that while he states that the enabling laws are contrary to the cited provisions he does not rebut the constitutionality of the said laws. I say so because the petitioner fails to specifically challenge the provisions of the laws that are deemed unconstitutional or state how they have been breached by the respondents. Instead he stresses that the laws should not allow use of tobacco products as the same violate the cited constitutional provisions.
46.It is imperative to note that the burden to proof that the Tobacco Control Act and the Tobacco Control Regulations, 2014 are contrary to the cited constitutional provisions lies on the petitioner. The threshold of proving one’s case is set out in the Evidence Act Cap 80 as follows:107.Burden of proof1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
47.The Supreme Court discussing the burden of proof in the case of Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others  eKLR opined as follows:
48.It is not therefore enough for the petitioner to solely rely on his dissatisfaction in the use and legalization of tobacco products in Kenya. He should avail evidence to show how the statute and regulations are contrary to the provisions of the constitution complained of. The impugned decision by the respondents is a policy issue and parliament is obligated to make laws to govern various aspects, issues and products in Kenya, as it deems fit. Infact, failure to regulate the product would be going against its constitutional mandate. In absence of a demonstration and proof that the impugned laws violate the constitution, this court is mandated to uphold the c onstitutionality of the laws as required by the law and as upheld by the Surpeme Court in the British American Taobcco Kenya, PLC (supra).
49.In the circumstances of this case I find the case of Mark Obuya, Tom Gitogo & Thomas Maara Gichuhi Acting for or on Behalf of Association of Kenya Insurers & 5 others vs. Commissioner of Domestic Taxes & 2 others  eKLR pertinent and valuable in this issue. The 2 Judge bench pronounced as follows:
50.Although the petitioner put up a spirited fight on the use of tobacco products and its effects he failed to demonstrate by submission of facts and evidence how the impugned laws were in breach of the cited constitutional provisions. Undoubtedly the standard of proof places the onus of proof on the petitioner to prove the elements that constitute the violation of the said provisions which includes sufficient facts to justify a finding that the Tobacco Control Act and Tobacco Control Regulations, 2014 are in breach of the constitutional dictates. This was not done in this case.
51.The inevitable conclusion that I come to is that the use of tobacco products and the laws governing the control of production, supply, management, dissemination, consumption and use of Tobacco products is not contrary to Articles 2, 10, 19, 20, 21, 24, 26, 27, 28, 42, 43, 55, 69 and 70 of the Constitution.
Issue No. (ii). Whether the petitioner is entitled to the reliefs sought
52.Even though the petitioner was certain that he was entitled to grant of the reliefs sought in the petition, the respondents and interested party opposed this assertion. It was their argument that the prayers sought were outside this Court’s jurisdiction as they fell within the purview of the Executive and Legislative arms of government. It was submitted that grant of the said prayers would be in violation of the doctrine of separation of powers.
54.The Constitutional Court in South Africa while addressing the issue of separation of powers in the case of Doctors for Life International v Speaker of the National Assembly and others (CCT12/05)  ZACC 11 stated that:
55.Similarly, the Court of Appeal in the case of Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others (2013) eKLR speaking to this issue opined that:
56.It is clear from the cited provision and authorities that the Court and the respondents have separate constitutional mandates as distinct arms of the government. The question therefore is whether the reliefs sought by the petitioner fall within the mandate of the respondents hence baring this Court from granting the same by virtue of the doctrine of separation of powers. Where the reliefs are found to involve matters outside the set parameters, this Court’s jurisdiction will therefore be lacking to grant the same.
57.An examination of the prayers (b)(c) and (d) in the instant petition that are deemed to be in violation of the doctrine of separation of powers reveals that the reliefs involve a question on the rightness and adequacy of Parliament’s decision to regulate use of tobacco products. The petitioner prays for an order compelling the respondents to make the requisite changes by ensuring a total ban of tobacco products.
58.In my view this is a challenge on the government’s legislative policy decision which a matter within the legislative authority of the Parliament as provided in the Constitution. This Court as a consequence is required to refrain from making a determination on a question which is best suited for Parliament to determine.
59.I find the caution given in the case of Kiriro wa Ngugi & 19 others v Attorney General & 2 others [2020) eKLR imperative in the circumstances of this case. The Court held as follows:
60.Evidently, the reliefs sought by the petitioner revolve around policy issues that are specifically set out for the Parliament by the Constitution. It is my considered view that it would be against the constitutional dictates for this Court to grant the said reliefs. I say so because their nature invokes the doctrine of separation of powers curtailing this Court’s jurisdiction to make a determination on the same. In effect the petitioner is not entitled to the said reliefs.
61.The upshot of the foregoing and for the reasons set out above, is that the petition dated 30th July 2019 lacks merit and I dismiss it. No costs shall be awarded as the petition was filed in great public interest.