https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12889

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CONSTITUTIONAL AND HUMAN RIGHTS DIVISION PETITION NO. E329 OF 2025** **IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 22, 23, 24, 27, 43, 47, 48, 159(2)(e), 232, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF ARTICLES 10, 43, AND 47 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE INTERPRETATION, IMPLEMENTATION AND ENFORCEMENT OF ARTICLES 259 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF SECTION 8 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015 AND IN THE MATTER OF THE TOBACCO CONTROL ACT, CAP 245A AND IN THE MATTER OF THE TOBACCO CONTROL REGULATIONS, 2014** **AND** **IN THE MATTER THE SUSPENSION OF LICENCES AND IMPORT CLEARANCES RELATED TO THE MANUFACTURE, IMPORTATION, DISTRIBUTION, SALE, OR PROMOTION OF NICOTINE AND RELATED PRODUCTS WITH IMMEDIATE EFFECT** **BETWEEN** **SUSAN AWINO...................................................................................PETITIONER** **VERSUS** **THE ATTORNEY GENERAL............................................................1ST RESPONDENT THE CABINET SECRETARY, MINISTRY OF HEALTH..........................2ND RESPONDENT THE MINISTRY OF HEALTH...........................................................3RD RESPONDENT THE KENYA TOBACCO CONTROL BOARD......................................4TH RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. This Judgment determines a Petition dated 3rd June 2025 filed by Susan Awino, the Petitioner herein, challenging the constitutionality and legality of a directive issued by the 2nd Respondent, the Cabinet Secretary for the Ministry of Health, on 31st May 2025. The directive announced the immediate suspension of all existing licences and import clearances related to the manufacture, importation, distribution, sale, or promotion of nicotine and related products. The 2nd Respondent further directed that all previously licensed persons or entities were required to reapply for licences within twenty-one days, submitting full compliance documentation for consideration by the 4th Respondent, the Kenya Tobacco Control Board. 2. The gravamen of the Petitioner’s case is that the 2nd Respondent acted without legal authority, that the impugned directive violated the rules of natural justice and the right to fair administrative action enshrined in Article 47 of the Constitution, and that the directive was procedurally unfair, irrational, and disproportionate. The Petitioner asserts that the 2nd Respondent usurped the powers of the Commissioner-General of the Kenya Revenue Authority under the Excise Duty Act and that the directive was issued without prior notice to the affected dealers or any opportunity for them to be heard. 3. The Respondents oppose the Petition. Through a Replying Affidavit sworn on 17th July 2025 by Mary Muthoni Muriuki, the Principal Secretary for the State Department for Public Health and Professional Standards at the Ministry of Health, the Respondents contend that the directive was a lawful public health intervention issued pursuant to the State’s constitutional obligation under Articles 21 and 43 of the Constitution to protect the right to the highest attainable standard of health. The Respondents rely extensively on scientific and economic data on the morbidity, mortality, and economic burden of tobacco use in Kenya, as well as on Kenya’s international obligations under the World Health Organization Framework Convention on Tobacco Control (WHO FCTC), which Kenya ratified in 2004. **BACKGROUND** 1. The Petitioner describes herself as a public-spirited citizen and a champion of the rule of law, democracy, and good governance. She brings the Petition in the interest of the public and particularly dealers in, and users of, nicotine and related products. According to her Supporting Affidavit, the Ministry of Health through the 3rd Respondent had in 2022 reviewed samples of electronic cigarettes in line with the Tobacco Control Act and the Tobacco Control Regulations, 2014, and found them compliant with packaging and labelling requirements. 2. On 31st May 2025, while attending the World No Tobacco Day at the Moi Teaching and Referral Hospital in Eldoret, the 2nd Respondent addressed the press and announced the suspension of all existing licences and import clearances related to the manufacture, importation, distribution, sale, or promotion of nicotine and related products with immediate effect. He further directed that all previously licensed persons or entities must reapply within twenty-one days, submitting full compliance documentation for consideration by the 4th Respondent. A copy of the media report carrying the directive was annexed to the Supporting Affidavit and marked “SA-1”. The directive was widely reported in print and digital media. 3. Following the directive, the Petitioner filed the present Petition on 3rd June 2025. The Petitioner contends that there was no subsequent formal communique from the Respondents, but the directive as carried by various media outlets remained the government’s position. The Petitioner asserts that the directive is ultra vires the powers of the 2nd Respondent, violates the rule of law under Article 10, and contravenes the right to fair administrative action under Article 47. 4. In response, the Respondents filed a Replying Affidavit deposed by Mary Muthoni Muriuki, the Principal Secretary for the State Department for Public Health and Professional Standards at the Ministry of Health. She deposed that she is fully conversant with the facts and competent to swear the Affidavit on behalf of the 2nd, 3rd, and 4th Respondents. She exhibited a bundle of documents collectively marked “MMM”, including the WHO FCTC, the Ministry of Health Report on Morbidity, Mortality and Economic Implications of Tobacco Use in Kenya, and the Tobacco Control Data Initiative findings. 5. The Respondents’ Replying Affidavit detailed Kenya’s international obligations under the WHO FCTC, which Kenya signed in 2004 and which forms part of the laws of Kenya by dint of Article 2(6) of the Constitution. The Affidavit also set out the domestic obligations under Articles 43(1)(a) and 21(2) of the Constitution, which mandate the State to take legislative, policy, and other measures to achieve the progressive realisation of the right to the highest attainable standard of health. 6. The Respondents further relied on the Ministry of Health Report to demonstrate the devastating health and economic consequences of tobacco use. The Report found that 9,943 deaths (16.5%) from tobacco-related illnesses were attributable to smoking, with respiratory diseases having the highest number of deaths due to smoking at 4,030. The Report also found that for every US dollar gained from tobacco revenue, Kenya loses between USD 2.2 and USD 3 in healthcare and productivity costs. The Respondents argued that the directive was informed by the need to protect and safeguard the greater public health of Kenyan citizens. 7. The Respondents also relied on the decision of this Court in ***Republic v Ministry of Health, Cabinet Secretary Ministry of Health & Attorney General Ex-parte Kennedy Amdany Langat & 14 others*** *&* ***Amit Kwatra & 12 others [2018] KEHC 5221 (KLR****),* which upheld the ban on shisha, and the subsequent decision of the Court of Appeal in ***Civil Appeal No. 450 of 2018 (Hussein Taher & 12 Others Vs Cabinet Secretary Ministry Of Health & The Hon Attorney General)***, which reiterated that there is great public interest in protecting the public’s health from harmful effects of tobacco products. **THE PETITIONER’S CASE** 1. The Petitioner's case is principally founded upon the contention that the 2nd Respondent acted without lawful authority in issuing the impugned directive, thereby violating the constitutional guarantee to fair administrative action under Article 47 of the Constitution. It is the Petitioner's case that the directive was arbitrary, unreasonable, disproportionate, and tainted by procedural impropriety. In particular, the Petitioner contends that the directive was issued without prior and adequate notice to the affected dealers and without affording them an opportunity to be heard, contrary to the mandatory requirements of Section 4 of the Fair Administrative Action Act, No. 4 of 2015. 2. The Petitioner further contends that neither the Tobacco Control Act nor the Tobacco Control Regulations, 2014, confer upon the 2nd Respondent any statutory mandate to licence, regulate, suspend, or revoke licences relating to nicotine dealerships. According to the Petitioner, the object and purpose of the Tobacco Control Act is to establish a legal framework for the regulation and control of tobacco products, and not to create a licensing regime for nicotine dealers. It is therefore asserted that the powers of the 2nd Respondent are expressly circumscribed by Section 4 of the Tobacco Control Act, and that neither the 2nd Respondent nor the 4th Respondent possesses the legal authority to licence dealers in nicotine products or to cancel or suspend importation clearances issued to such dealers. 3. The Petitioner further submits that the licensing of tobacco and nicotine products is governed by the provisions of the Excise Duty Act, and that the statutory power to suspend or revoke licences issued under Section 15 of that Act is exclusively vested in the Commissioner-General of the Kenya Revenue Authority pursuant to Section 20 thereof. It is consequently argued that, by purporting to suspend the operations of licensed dealers, the 2nd Respondent unlawfully usurped powers reserved by statute to the Commissioner-General. The impugned directive is therefore said to be ultra vires, unlawful, null and void. 4. The Petitioner additionally contends that the impugned directive circumvented the elaborate statutory procedure prescribed under Section 20 of the Excise Duty Act for the suspension or cancellation of licences. It is her case that the categorical and conclusive terms in which the directive was communicated effectively foreclosed the statutory appellate mechanisms provided under Section 20(4) of the Act, thereby depriving affected licence holders of the procedural safeguards expressly guaranteed by Parliament. 5. In her Written Submissions dated 26th January 2026, the Petitioner identified three issues for determination, namely: whether the 2nd Respondent's blanket suspension was lawful, reasonable and procedurally fair; whether the Respondents, jointly and severally, violated Articles 2, 3, 10, 19, 20, 22, 23, 43, 47, 48, 258 and 259 of the Constitution; and whether the Petitioner has established a proper basis for the grant of the reliefs sought in the Petition. 6. On the first issue, the Petitioner submits that the impugned directive constitutes an administrative action within the meaning of Section 2 of the Fair Administrative Action Act and was therefore required to comply with the procedural safeguards stipulated under Section 4(3) of the Act. It is argued that the Respondents failed to accord the affected parties prior and adequate notice, an opportunity to be heard, a statement of reasons, and the other procedural guarantees contemplated under the Act. In support of this proposition, reliance is placed on ***Republic v County Director of Education, Nairobi & 4 others Ex parte Abdukadir Elmi Robleh [2018] eKLR***, wherein the Court held that notice under Article 47 must be prior, adequate and sufficiently disclose the nature and reasons for the proposed administrative action. The Petitioner also relies on ***Geothermal Development Company Limited v Attorney General & 3 Others [2013] eKLR*** for the proposition that every person affected by an adverse administrative decision must be afforded a reasonable opportunity to know and respond to the allegations against them before such a decision is made. 7. The Petitioner further submits that the impugned directive fails the constitutional test of proportionality. It is argued that the Respondents resorted to a blanket suspension without demonstrating why less restrictive regulatory measures could not have adequately achieved the intended public objective. In this regard, reliance is placed on ***Kenya Human Rights Commission & another v Non-Governmental Organisations Co-ordination Board & another [2018] eKLR*** and ***Judicial Service Commission v Mbalu Mutava & another [2014] eKLR*** for the settled principle that administrative action must satisfy the constitutional requirements of legality, reasonableness and procedural fairness. 8. The Petitioner further contends that the impugned directive violates Article 10 of the Constitution as it is opaque, unilateral, and devoid of stakeholder engagement or public participation. The Petitioner argued that the directive was issued without any evidence of consultation with affected sectors or reasoned policy formulation 9. On the question of relief, the Petitioner submits that she has satisfied the legal threshold for the grant of declaratory and injunctive orders. Reliance is placed on ***Abey & another v Directorate of Criminal Investigations & another (Petition E613 of 2024) [2025] KEHC 12490 (KLR)*** and ***Gilbert Mwangi Njuguna v Attorney General [2014] KEELRC 726 (KLR),*** wherein the courts affirmed that declaratory relief is an appropriate constitutional remedy where a petitioner demonstrates a violation or threatened violation of constitutional rights or principles. 10. In the premises, the Petitioner urges the Court to find that the impugned directive is unconstitutional, unlawful, null and void, and to issue a permanent injunction restraining the Respondents from implementing or enforcing the said directive. The Petitioner further prays that the costs of the Petition be awarded in her favour and that such costs be borne personally by the 2nd Respondent. **THE RESPONDENTS’ CASE** 1. The Respondents opposed the Petition through the Replying Affidavit sworn by Mary Muthoni Muriuki and their Written Submissions dated 8th May 2026. It is the Respondents’ case that the impugned directive constituted a lawful, reasonable and proportionate public health intervention issued pursuant to the State’s constitutional obligation under Articles 21 and 43 of the Constitution to protect the right to the highest attainable standard of health. 2. The Respondents contend that the Petitioner has failed to demonstrate any violation of the Constitution with the requisite degree of precision. In support of this submission, they rely on ***Anarita Karimi Njeru v Republic [1979] eKLR*** and ***Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR*** for the proposition that a party alleging a violation of the Constitution must plead, with reasonable precision, the constitutional provisions alleged to have been violated and the manner of such violation. 3. The Respondents further contend that the impugned directive did not constitute an individualized disciplinary or quasi-judicial process but was a broad regulatory and public health intervention applicable generally to nicotine and related products. They submit that the directive did not permanently extinguish the rights of the affected entities, as previously licensed entities were required to reapply within twenty-one days. In this regard, the Respondents rely on ***Dry Associates Ltd v Capital Markets Authority & another; Crown Berger (K) Ltd (Interested Party) (Petition 328 of 2011) [2012] KEHC 5568 (KLR)*** for the proposition that fairness is a flexible concept and that administrative action must also be expeditious, efficient and reasonable. 4. The Respondents further submit that the State bears a constitutional obligation to act expeditiously in the protection of life and health, and that requiring individualized hearings before the implementation of urgent sector-wide public health measures would impede the State’s ability to respond effectively to public health threats. Reliance is placed on ***Republic v Ministry of Health, Cabinet Secretary Ministry of Health & Attorney General Ex Parte Kennedy Amdany Langat & 14 Others; Amit Kwatra & 12 Others [2018] KEHC 5221 (KLR)*** for the proposition that the State may take protective measures without having to await full demonstration of the reality and seriousness of the risks. 5. On the question of whether the impugned directive was ultra vires, the Respondents contend that the Petitioner adopts a narrow and fragmented interpretation of the constitutional and statutory framework. They submit that the mandate of the Ministry of Health extends beyond licensing and revenue collection, and that the impugned directive was not a tax enforcement measure under the Excise Duty Act but a public health intervention. Reliance is placed on County Assemblies Forum v Attorney General & 3 others [2022] KESC 66 (KLR) for the proposition that the Constitution must be interpreted holistically and that no constitutional provision ought to be read in isolation from the others. 6. The Respondents further rely on Kenya’s international obligations under the WHO Framework Convention on Tobacco Control (WHO FCTC), which, by virtue of Article 2(6) of the Constitution, forms part of the laws of Kenya. It is their contention that the impugned directive was issued in furtherance of Kenya’s obligations under the Convention to adopt and implement effective measures aimed at preventing and reducing tobacco consumption and nicotine addiction. 7. The Respondents also rely on ***British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR),*** in which the Supreme Court upheld stringent tobacco control regulations, as well as ***Pevans East Africa Ltd & another v Chairman, Betting Control & Licensing Board & 7 others [2018] KECA 332 (KLR),*** for the proposition that courts ought to accord public institutions sufficient latitude to discharge their constitutional mandates. 8. On the foregoing basis, the Respondents urge the Court to find that the Petition is devoid of merit and to dismiss it with costs. **ANALYSIS AND DETERMINATION** 1. I have carefully considered the pleadings, the affidavits on record, the annexures thereto, and the respective written submissions of the parties. In my view, the following issues arise for determination: 2. ***Whether the Petitioner has properly invoked the constitutional jurisdiction of this Court and met the threshold for pleading constitutional violations.*** 3. ***Whether the 2nd Respondent acted ultra vires his powers under the Constitution and the relevant statutes in issuing the impugned directive suspending licences and import clearances for nicotine and related products.*** 4. ***Whether the impugned directive violated the Petitioner’s right to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, 2015.*** 5. ***Whether the impugned directive violated the national values and principles of governance under Article 10 of the Constitution, including the rule of law, public participation, transparency, and accountability.*** 6. ***Whether the Petitioner is entitled to the reliefs sought.*** **Whether the Petitioner has properly invoked the constitutional jurisdiction of this Court and met the threshold for pleading constitutional violations** 1. Before considering the merits of the Petition, it is necessary to dispose of the preliminary objection raised by the Respondents regarding the competence of the Petition. The Respondents contend that the Petition does not satisfy the threshold for constitutional pleadings as enunciated in ***Anarita Karimi Njeru v Republic (supra)*** and reaffirmed in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (supra).*** It is their submission that the Petitioner has failed to plead, with the requisite degree of precision, the constitutional provisions alleged to have been violated and the manner of their alleged infringement. 2. The Court has carefully examined the Petition dated 3rd June 2025. The Petition is pleaded with considerable particularity. In paragraphs B1 to B19, the Petitioner sets out the constitutional and legal foundation of the Petition by identifying the constitutional provisions alleged to have been violated. In paragraphs D1 to D14, the Petitioner sets out the alleged violations of the Constitution and the law, including the alleged infringement of Articles 10, 43 and 47 of the Constitution. The Petitioner further pleads that the 2nd Respondent acted ultra vires Section 4 of the Tobacco Control Act and Sections 15 and 20 of the Excise Duty Act. 3. The principle enunciated in ***Anarita Karimi Njeru v Republic (supra)*** is neither a technical pleading requirement nor a procedural hurdle intended to impede access to constitutional justice. Its purpose is to ensure that a respondent is sufficiently apprised of the constitutional complaint it is called upon to answer and that the Court is able to discern, with clarity, the issues falling for determination. In ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (supra),*** the Court of Appeal, while reaffirming the continued applicability of that principle, cautioned against an unduly technical approach that would subordinate substantive justice to procedural formalism. 4. Applying those principles to the present Petition, I am satisfied that the threshold of reasonable precision has been met. The Respondents filed a comprehensive Replying Affidavit and equally detailed written submissions, in which they addressed the Petition on its merits, including the alleged violation of Article 47 of the Constitution and the contention that the 2nd Respondent acted ultra vires. It is therefore evident that the Respondents were neither taken by surprise nor prejudiced in responding to the Petition. The Petition identifies the impugned directive, specifies the constitutional provisions alleged to have been violated, and sets out the factual and legal basis upon which those allegations are founded. It cannot, therefore, be said to be vague, generalized or lacking in the requisite degree of precision. 5. Constitutional pleadings must be construed in a manner that advances, rather than impedes, the enforcement of the Bill of Rights. Accordingly, while the precision requirement articulated in **Anarita Karimi Njeru** remains good law, its application must be informed by the constitutional imperative that disputes be determined on their substantive merits where the pleadings sufficiently disclose the constitutional questions in controversy. The requirement is one of substance rather than form, and each case must be assessed on its own facts and circumstances. 6. In the premises, I find that the Petitioner has properly invoked the constitutional jurisdiction of this Court and has satisfied the threshold for pleading constitutional violations. The preliminary objection founded on the alleged want of precision in the Petition is consequently without merit and is hereby rejected. **Whether the 2nd Respondent acted ultra vires his powers under the Constitution and the relevant statutes in issuing the impugned directive suspending licences and import clearances for nicotine and related products** 1. The gravamen of the Petitioner's challenge on this issue is that the 2nd Respondent lacked jurisdiction to issue the impugned directive. The Petitioner contends that the statutory power to suspend or cancel licences relating to excisable goods is vested exclusively in the Commissioner-General of the Kenya Revenue Authority under Section 20 of the Excise Duty Act. It is the Petitioner's case that neither the Tobacco Control Act nor the Tobacco Control Regulations, 2014, confer upon the Cabinet Secretary for Health the authority to suspend licences or import clearances, and that the impugned directive consequently amounted to an unlawful assumption of powers reserved to the Commissioner-General. 2. The Respondents take a contrary position. They submit that the Petitioner's argument proceeds from an unduly narrow interpretation of the statutory framework by conflating fiscal licensing measures under the Excise Duty Act with public health regulation under the Constitution and the tobacco control legislative framework. According to the Respondents, the impugned directive was not an exercise of the Commissioner's fiscal mandate, but a public health intervention issued in discharge of the State's constitutional obligation to safeguard the right to the highest attainable standard of health. 3. The question falling for determination is therefore not whether the State has authority to regulate tobacco and nicotine products; that mandate is beyond dispute. The issue is whether, in exercising its constitutional and statutory obligation to protect public health, the Cabinet Secretary for Health acted outside the limits of his lawful authority by issuing a directive affecting dealers in nicotine and related products. 4. Article 43(1)(a) of the Constitution guarantees every person the right to the highest attainable standard of health, including the right to health care services. Article 21(2) obligates the State to take legislative, policy and other measures, including the setting of standards, towards the progressive realisation of the rights guaranteed under Article 43. These provisions impose upon the State a positive obligation to adopt appropriate measures for the protection of public health. 5. The regulation of products that pose a risk to public health is therefore not merely a matter of policy discretion; it is an aspect of the State's constitutional responsibility. Tobacco and nicotine products fall within a category of goods whose regulation involves competing considerations, including public health protection, consumer safety, fiscal regulation and control of illicit trade. 6. The Tobacco Control Act constitutes the principal statutory framework governing the control of tobacco products in Kenya. Its objects include the regulation of the production, manufacture, sale, distribution, promotion and use of tobacco products. Section 4 of the Act confers upon the Cabinet Secretary various powers relating to the regulation and control of tobacco products, including measures concerning their composition, packaging, labelling, sale, distribution and promotion. 7. The Petitioner correctly submits that Section 4 of the Tobacco Control Act does not expressly confer a power upon the Cabinet Secretary to suspend licences issued under the Excise Duty Act. However, that is not the decisive question. The Court must first determine the legal character of the impugned directive and the source of authority under which it was issued. 8. Section 20 of the Excise Duty Act empowers the Commissioner-General to suspend or cancel licences issued under that Act in specified circumstances. That power arises within the context of the administration and enforcement of excise duty obligations. The provision addresses fiscal compliance by persons dealing in excisable goods and does not, in express terms, exclude the exercise of independent regulatory powers by other State agencies acting within their constitutional and statutory mandates. 9. The Court therefore rejects the Petitioner's contention that the existence of licensing powers under the Excise Duty Act renders the Cabinet Secretary incapable of taking regulatory measures that may affect the operations of dealers dealing in tobacco or nicotine products. The two statutory regimes serve distinct, albeit complementary, purposes. The Excise Duty Act addresses taxation and fiscal compliance, while the Tobacco Control Act addresses public health regulation and the control of tobacco products. 10. The Supreme Court decision in ***British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Ltd (Affected Party) (supra)*** is instructive. The Supreme Court affirmed the authority of the Cabinet Secretary to adopt stringent tobacco control measures under the Tobacco Control Act and recognised that such measures form part of the State's constitutional obligation to protect public health. 11. Similarly, in ***Republic v Ministry of Health, Cabinet Secretary Ministry of Health & Attorney General Ex parte Kennedy Amdany Langat & 14 others; Amit Kwatra & 12 others (supra),*** this Court recognised the authority of the State to adopt protective public health measures where necessary to avert harm to the population. The Court affirmed the application of the precautionary principle, under which the State is not required to await the occurrence of actual harm before taking reasonable preventive measures. 12. Applying these principles to the present case, the impugned directive was not an exercise of the Commissioner's licensing powers under Section 20 of the Excise Duty Act. Its purpose was not the enforcement of tax obligations or the administration of excise licences. Rather, it was a regulatory measure issued by the Cabinet Secretary for Health in the context of tobacco control and public health protection. 13. The mere use of the term "suspension of licences" in the directive does not, without more, convert a public health regulatory measure into an exercise of fiscal licensing powers under the Excise Duty Act. The substance, purpose and effect of the directive must be considered. In this regard, the directive required affected entities to submit compliance documentation and reapply within twenty-one days. It was therefore directed towards regulatory compliance and public health protection rather than the permanent cancellation of licences. 14. The evidence placed before the Court, including the Ministry of Health Report exhibited as "MMM-2" and the Tobacco Control Data Initiative findings exhibited as "MMM-4", demonstrates the public health concerns underlying the directive. The Respondents relied on this evidence to justify the regulatory intervention, and the Petitioner did not challenge the evidence regarding the harmful consequences of tobacco and nicotine use. 15. This Court is therefore not persuaded that the 2nd Respondent usurped the powers of the Commissioner-General under the Excise Duty Act. The Petitioner's argument proceeds on the assumption that any regulatory measure affecting a licensed dealer must necessarily amount to an exercise of licensing power under the Excise Duty Act. In the Court's view, that approach fails to recognise the distinct constitutional and statutory mandates assigned to different State agencies. 16. In the circumstances, the Court finds that the impugned directive was issued within the constitutional and statutory mandate of the Cabinet Secretary responsible for matters relating to health. The directive was a public health regulatory measure, rather than an exercise of the fiscal licensing powers vested in the Commissioner-General under the Excise Duty Act. The Petitioner's contention that the 2nd Respondent acted ultra vires by usurping the powers of the Commissioner-General is therefore unsustainable. The Petition accordingly fails on this limb. **Whether the impugned directive violated the Petitioner’s right to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, 2015** 1. The Petitioner’s principal contention under this issue is that the impugned directive violated her right to fair administrative action guaranteed under Article 47 of the Constitution and given effect by the Fair Administrative Action Act, 2015. It is the Petitioner’s case that the directive was issued without prior and adequate notice, without affording the affected dealers an opportunity to make representations, and without providing the procedural safeguards required where administrative action adversely affects rights and interests. 2. The Respondents oppose this contention. Their position is that the directive was not an individualized administrative determination against specific persons, but a broad regulatory intervention undertaken in fulfilment of the State’s constitutional obligation to protect public health. They submit that the content of procedural fairness is contextual and must be balanced against the need for efficient and effective administration, particularly where the State is acting to address matters affecting public health. 3. Article 47(1) of the Constitution provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47(2) further provides that where a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. The Fair Administrative Action Act, 2015, was enacted to give effect to this constitutional guarantee and sets out the minimum procedural requirements applicable where administrative action adversely affects rights or fundamental freedoms. 4. Section 4(3) of the Fair Administrative Action Act requires an administrator, where an administrative action is likely to adversely affect a person’s rights or fundamental freedoms, to provide prior and adequate notice of the proposed action, an opportunity to be heard and to make representations, notice of any right to review or appeal, a statement of reasons, and access to the information, materials and evidence relied upon in making the decision. 5. The first question for determination is whether the impugned directive constituted administrative action within the meaning of Article 47 and the Fair Administrative Action Act. Section 2 of the Act defines administrative action to include any decision, act or omission of an administrator which affects the legal rights or interests of a person. The directive in question suspended licences and import clearances previously granted to dealers in nicotine and related products and required such entities to undertake a fresh compliance process. In those circumstances, there can be no doubt that the directive affected the legal interests of the affected dealers and therefore constituted administrative action subject to the requirements of Article 47. 6. Having so found, the next question is whether the procedure adopted in issuing the directive met the constitutional threshold of fairness. The Court has considered the record and finds that there is no evidence that the affected dealers were issued with prior individual notice before the directive took effect, or that they were invited to make representations prior to the suspension. Equally, there is no evidence that individual written reasons were issued to the affected dealers. 7. The Respondents, however, contend that the directive must be considered within its regulatory context. They argue that the measure was not punitive, did not amount to a final cancellation of licences, and was intended to ensure compliance with tobacco control requirements. They further submit that requiring individual hearings before implementation of a sector-wide public health intervention would impede the State’s constitutional obligation to act expeditiously in protecting public health. 8. The Court is alive to the fact that fair administrative action is now a constitutional right and not merely a common law requirement. In ***Judicial Service Commission v Mbalu Mutava & another [2015] eKLR,*** the Court of Appeal held that Article 47 marked a transformative development in administrative justice by subjecting administrative action to constitutional scrutiny and entrenching procedural fairness as a fundamental right. The Court, however, recognised that the requirements of fairness are not applied in a rigid or mechanical manner, but depend on the circumstances of each case. 9. Similarly, in ***Dry Associates Ltd v Capital Markets Authority & another (supra),*** the Court observed that fairness is a flexible concept and does not invariably require a formal hearing involving representations and counter-representations. The Court recognised that administrative efficiency and the effective discharge of statutory functions are legitimate considerations, provided that administrative action remains lawful, reasonable and procedurally fair. 10. This principle has long been recognised in administrative law. In ***Selvarajan v Race Relations Board [1976] 1 All ER 12***, Lord Denning MR observed that although an administrative body is required to act fairly, what fairness requires depends upon the nature of the inquiry and the consequences which the decision may have upon the person affected. This principle finds resonance in our constitutional framework, where Article 47 requires fairness, but the content of that fairness must be assessed against the circumstances in which administrative power is exercised. 11. The Court must therefore determine the nature and extent of procedural safeguards required in the circumstances of the present case. The impugned directive was not issued following an adjudication of alleged wrongdoing by identified dealers. Rather, it was a general regulatory measure directed at a class of operators within a highly regulated sector. Its stated purpose was to enhance compliance with tobacco control requirements and to protect public health. 12. The Court also takes into account that the directive was not a permanent prohibition or an irreversible cancellation of licences. The affected entities were required to submit compliance documentation and were afforded an opportunity to reapply within twenty-one days. The regulatory process therefore remained open to consideration of individual circumstances and compliance status. 13. The Court further considers the public health context within which the directive was issued. The evidence placed before the Court demonstrates the significant health burden associated with tobacco and nicotine products. The State has a constitutional obligation under Articles 21 and 43 of the Constitution to take legislative, policy and other measures towards the protection and progressive realisation of the right to health. In matters concerning public health, the State is entitled to adopt preventive measures where there exists a legitimate concern regarding harm to the public. 14. In ***Republic v Ministry of Health, Cabinet Secretary Ministry of Health & Attorney General Ex-parte Kennedy Amdany Langat & 14 others; Amit Kwatra & 12 others [2018] KEHC 5221 (KLR),*** this Court recognised the application of the precautionary principle in public health regulation and held that the State may take protective measures without waiting until the full extent of the risk has manifested. The Court observed that where there exists a likelihood of harm to public health, protective measures may be justified provided they are objective and proportionate. 15. The precautionary principle, however, does not dispense with the constitutional requirement of fair administrative action. Rather, it informs the context within which the Court evaluates the reasonableness and proportionality of the procedure adopted. The question remains whether, in the circumstances of this case, the procedure adopted was constitutionally permissible. 16. The Court is satisfied that the directive, though affecting the interests of the affected dealers, was regulatory rather than punitive in nature. It was temporary, applied generally to a defined sector, pursued a legitimate public health objective, and provided an avenue through which affected entities could demonstrate compliance and seek reinstatement. The Court therefore finds that the procedural safeguards required in the circumstances were not identical to those applicable to a final adverse determination against an individual licensee. 17. On the issue of reasons, Article 47(2) requires that a person adversely affected by administrative action be furnished with written reasons. The Court notes that the directive was publicly issued and the reasons for its issuance were disclosed, including concerns relating to public health protection and compliance with tobacco control requirements. Although individual written communication of reasons would have constituted better administrative practice, the Court considers that, having regard to the general nature of the directive and the number of affected persons, the reasons communicated publicly were sufficient in the circumstances. 18. The Court accordingly finds that, while the Respondents could have adopted more elaborate procedural safeguards, the impugned directive did not amount to a violation of Article 47 of the Constitution. The directive was a temporary regulatory intervention undertaken for a legitimate public purpose, within a statutory and constitutional framework, and accompanied by an opportunity for affected entities to demonstrate compliance. 19. The Petition therefore fails on this limb. **Whether the impugned directive violated the national values and principles of governance under Article 10 of the Constitution, including the rule of law, public participation, transparency, and accountability** 1. The Petitioner contends that the impugned directive violated Article 10 of the Constitution, which sets out the national values and principles of governance binding upon all State organs, State officers, public officers and all persons whenever they apply or interpret the Constitution or any law, or make or implement public policy decisions. It is the Petitioner’s case that the directive was issued unilaterally, without stakeholder engagement, without public participation, and in disregard of the principles of transparency, accountability and the rule of law. 2. The Respondents oppose this contention. They maintain that the directive was issued pursuant to the constitutional and statutory mandate of the Ministry responsible for health as a regulatory intervention aimed at protecting public health. They submit that the directive was neither the formulation of a new policy nor the enactment of regulations requiring a public participation process, but rather an administrative measure undertaken within an existing legal framework governing tobacco and nicotine products. 3. Article 10(1) of the Constitution provides that the national values and principles of governance bind all State organs, State officers, public officers and all persons whenever they apply or interpret the Constitution or any law, or make or implement public policy decisions. Article 10(2) identifies, among others, the rule of law, democracy and participation of the people, transparency, accountability and sustainable development as national values and principles of governance. 4. The Court reiterates that public participation is not a mere procedural formality but a central component of Kenya’s constitutional architecture. It ensures that the exercise of public power is undertaken in an open, democratic and accountable manner. However, the obligation to facilitate public participation does not assume a single form or intensity in every circumstance. The nature and extent of participation required must be assessed having regard to the character of the decision under consideration, the legal framework governing the decision, and the extent of its impact upon the persons affected. 5. In ***British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Ltd (Affected Party) (supra),*** the Supreme Court affirmed the importance of public participation in the exercise of public power. The Court recognised, however, that the requirement is context-dependent and that the degree of participation required varies depending on whether the State action concerns legislation, policy formulation, or the implementation of an existing statutory mandate. 6. The present matter does not concern the enactment of legislation or the promulgation of subsidiary legislation. Neither does it concern the formulation of an entirely new policy framework. The impugned directive was issued within an existing statutory framework, including the Tobacco Control Act, and was directed towards ensuring compliance with regulatory requirements governing nicotine and tobacco products. The directive was therefore administrative in character rather than legislative or policy-making in nature. 7. The Court must, however, reject any suggestion that administrative action is wholly exempt from the constitutional requirement of public participation. Article 10 applies whenever public power is exercised, and public authorities must remain alive to the obligation to promote transparency, accountability and meaningful engagement where the circumstances demand it. The question before the Court is therefore not whether public participation was irrelevant, but whether the nature and circumstances of the impugned directive required the level of engagement contended for by the Petitioner. 8. The Court acknowledges that the directive had a significant impact upon dealers operating within the affected sector. The suspension of licences and import clearances inevitably affected their commercial interests. In such circumstances, engagement with affected stakeholders would have been a desirable aspect of sound administrative practice and would have enhanced transparency and confidence in the regulatory process. 9. Nevertheless, the Court must consider the nature of the measure adopted. The directive was not an instrument creating new obligations through legislation or policy formulation. It was a temporary regulatory intervention intended to ensure compliance with existing tobacco control requirements. It did not permanently extinguish the ability of affected dealers to operate; rather, it required them to submit compliance documentation and undertake a reapplication process within twenty-one days. 10. The Court also considers the circumstances in which the directive was issued. The measure was undertaken in the context of the State’s constitutional obligation under Articles 21 and 43 of the Constitution to protect public health. The directive was publicly communicated, and the reasons for its issuance were disclosed, including concerns relating to the health consequences of nicotine and tobacco products and the need to address non-compliance within the sector. 11. On the issue of transparency and accountability, the Court finds that the directive was not issued clandestinely or without explanation. The decision was publicly announced, the rationale for the intervention was disclosed, and the exercise of power remained subject to constitutional and legal scrutiny. The Respondents were therefore accountable for the decision and its implementation. 12. The Court is mindful that constitutional values must not be reduced to aspirational statements but must inform the manner in which public power is exercised. However, constitutional adjudication requires the Court to examine the substance and context of the impugned action. The mere absence of prior stakeholder consultation does not, in every instance, render an administrative measure unconstitutional, particularly where the decision concerns implementation of an existing regulatory framework rather than the formulation of a new policy or legal regime. 13. In the circumstances of this case, the Court finds that while greater stakeholder engagement would have strengthened the decision-making process, the absence of such engagement did not amount to a violation of Article 10 of the Constitution. The directive was issued within an existing statutory framework, pursued a legitimate public purpose, was publicly communicated, and preserved an opportunity for affected entities to demonstrate compliance. 14. The Petitioner has therefore not established that the impugned directive violated the national values and principles of governance under Article 10 of the Constitution. **Whether the Petitioner is entitled to the reliefs sought** 1. The Petitioner seeks declaratory orders, a permanent injunction restraining the Respondents from implementing the impugned directive, and an order that the costs of the Petition be borne personally by the 2nd Respondent. 2. Having found that the impugned directive was issued within the constitutional and statutory mandate of the 2nd Respondent, and having further found that the directive did not violate the Petitioner’s rights under Articles 47 and 10 of the Constitution, the foundation upon which the reliefs sought are premised has not been established. 3. The jurisdiction of this Court to grant constitutional remedies under Article 23 of the Constitution is predicated upon the establishment of a violation, infringement, or threat to a constitutional right or fundamental freedom. In the absence of a demonstrated constitutional violation, the Court finds no basis upon which the declaratory and injunctive reliefs sought may issue. 4. Accordingly, the Petition fails on the question of remedies, and the reliefs sought by the Petitioner are hereby declined. 5. On the issue of costs, the Court has considered the circumstances of the Petition. Although the Petition has been unsuccessful, the Court recognises that it raised questions of public importance touching on the regulation of nicotine and tobacco products and the balance between public health protection and individual rights. In the exercise of its discretion under Article 22(2) of the Constitution and the general principles governing public interest litigation, the Court considers it appropriate that each party bears its own costs. **CONCLUSION** 1. In the final analysis, the Court finds that the Petitioner has not demonstrated that the impugned directive was issued in excess of the 2nd Respondent’s constitutional and statutory mandate, nor has the Petitioner established any violation of the rights and constitutional principles invoked. The directive constituted a regulatory measure undertaken in furtherance of the State’s constitutional obligation to protect public health and has not been shown to be unlawful, unreasonable, or procedurally unfair. Consequently, the Petition is devoid of merit and must fail. 2. For the reasons set out above, the Court makes the following final orders: 1. The Petition dated 3rd June 2025 is dismissed in its entirety. 2. Each party shall bear their own costs. Orders accordingly. File closed accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF JULY 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **BAHATI MWAMUYE MBS** **JUDGE**