[2023] KEHC 27292 (KLR)

Ochola & 2 others v Cabinet Secretary Ministry of Interior and Co-ordination of National Government & 3 others; Pharmacy and Poisons Board & 3 others (Interested Parties) (Petition 11 of 2023) [2023] KEHC 27292 (KLR) (15 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27292 (KLR)

Republic of Kenya

In the High Court at Kajiado

Petition 11 of 2023

SN Mutuku, J

November 15, 2023

IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 11, 23, 35, 40, 43, 47, 69, 165, 232, 258, 259 and 260 OF THE CONSTITUTION OF KENYA 2010. IN THE MATTER OF: CONTRAVENTION OR BREACH OF THE CONSTITUTION OF KENYA 2010 TO WIT ARTICLES 10,11,40,43,47,69,232, 259. IN THE MATTER OF: THE CONVENTION ON BIOLOGICAL DIVERSITY (CBD), THE NAGOYA PROTOCOL ON ACCESS TO GENETIC RESOURCES AND THE FAIR AND EQUITABLE SHARING OF BENEFITS ARISING FROM THEIR UTILIZATION TO THE CONVENTION ON BIOLOGICAL DIVERSITY; THE SINGLE CONVENTION ON NARCOTIC DRUGS 1961, THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS(ICESCR), THE AFRICAN CHARTER ON HUMAN AND PEAOPLES RIGHTS (THE BUNJUL CHARTER); AND IN THE MATTER OF: SECTIONS 3,4,5,6,16,84,87,1ST AND 3RD SCHEDULE OF THE NARCOTIC & PSYCHOTROPIC SUBSTANCES (CONTROL) ACT (CAP 245); SECTIONS 3B,44, PART 111 AND IIIA OF THE PHARMACY AND POISONS ACT (CAP 244); SECTIONS 2 AND 26 OF THE PROTECTION OF TRADITIONAL KNOWLEDGE AND CULTURAL EXPRESSIONS (TK & TCE) ACT; SECTIONS 7, 51 AND 53 OF THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT(CAP 387); SECTIONS 4,5,6,AND 7 OF THE FAIR ADMINISTRATION ACT(ACT NO 4 OF 2015) LAWS OF KENYA. AND 1 IN THE MATTER OF: THE ENVIRONMENTAL MANAGEMENT AND COORIDATION (EMCA)(CONSERVATION OF BIOLOGICAL DIVERSITY AND RESOURCES, ACCESS TO GENETIC RESOURCES AND BENEFIT SHARING) REGULATIONS. BETWEEN

Between

John Ochola

1st Petitioner

Raphael Kamuzu

2nd Petitioner

Kilimanjaro Environmental Conservation Group

3rd Petitioner

and

Cabinet Secretary Ministry Of Interior And Co-ordination of National Government

1st Respondent

Cabinet Secretary, Ministry Of Health

2nd Respondent

Attorney General

3rd Respondent

HEMP Passion LC

4th Respondent

and

Pharmacy and Poisons Board

Interested Party

Pharmaceutical Society Of Kenya

Interested Party

Kenya Medical Research Institute (KEMRI)

Interested Party

National Environment Management Authority

Interested Party

Judgment

Introduction 1. Through a Petition dated 6th December 2019, the petitioners have sued the respondents’ claiming violation of constitutional rights. The 1st Petitioner describes himself as a legal researcher and an advocate of the High Court of Kenya. The 2nd Petitioner is described as a male adult of sound mind, residing, and working for gain in Kenya while the 3rd Petitioner is described as a community-based organization (CBO) operating in the Amboseli Biosphere Reserve within Kajiado County involved in environmental conservation, farming and seed bulking and banking and other economic activities.

2. The Petition is against the 1st, 2nd and 3rd respondents, the Cabinet Secretaries Ministry of Interior and Coordination of National Government and Ministry of Health as well as the Attorney General, respectively and the 4th Respondent, a company known as Hemp Passion Group S.L. The Petition attracted four (4) Interested Parties as shown on the face of it.

3. Under paragraphs 13 to 29 of the Petition, all inclusive, the petitioners have highlighted the constitutional provisions on which they base their Petition. Under paragraphs 30 to 41 of the Petition, all inclusive, the Petitioners have highlighted the International Treaties and Conventions they have relied on to support their Petition.

4. The petitioners have come to court under Articles 22 and 258 of the Constitution of Kenya claiming to bring this Petition on their own behalf and on behalf of the residents and communities within the Amboseli Biosphere Reserve and in the interest of the general public. It is their case that this court, sitting as a constitutional court, is clothed with the requisite jurisdiction to determine this Petition.

Basis of the Petition 5. The petitioners have gone to great lengths to describe the Cannabis Sativa plant and its various varieties. They have described the uniqueness of Cannabis Plant as the only plant in the entire plant kingdom capable of producing over 100 chemical compounds called cannabinoids (phytocannabinoids). They have stated that this plant shares this uniqueness with humans who equally have cannabinoids called endocannabinoids, vital for maintaining homoeostatic balance (self-regulating process for living organisms for purposes of maintaining internal systems).

6. The Petitioners have described some of the benefits derived from the application of cannabis extracts as including anti-inflammatory, anti-convulsant, and antioxidant as well as treatment of various health conditions including chronic pain, HIV-AIDS, cancer, Parkinsons Disease, epilepsy, and seizures. They have described the benefits of the cannabis plant in industrial applications in nutrition and food supplements as well as economic value and potential in the market driven by medicinal demand globally.

7. It is their case that apart from the medicinal cannabis market, the global cannabis seed market has witnessed the development of thousands of high value auto flowering, feminized as well as traditional regular seed varieties worth billions of dollars. They claim that Kenya boasts of Kilimanjaro Sativa, a pure cannabis plant variety which is native to the Amboseli Biosphere spanning over both Kenya and Tanzania and that by virtue of being a natural host to the Kilimanjaro Landraces (natural plant populations that have developed over multiple generations within certain geographical locations), Kenya has a significant stake in the Cannabis Sativa world seed market.

8. The petitioners argue that sections 2, 3, 4, 5, 6, 16 and 84 of the Narcotic and Psychotropic Substances (Control) Act (Cap. 245 Laws of Kenya) (the Act) is in conflict and contradicts provisions and intent of the international treaties and convention, African Charter on Human and Peoples Rights and other pieces of legislation as specified under paragraph 106 of the Petition. It is their argument that sections 3 (3) (d), 16 and 84 of the Act purports to create a parallel licensing structure for importation, exportation, diversion, sale, manufacture, production or distribution of narcotic drug or psychotropic substance under the supervisory jurisdiction of the Ministry of Interior and Coordination of National Government in contrast to the provisions of sections 3B and 44 of the Pharmacy and Poisons Act (Cap. 244, Laws of Kenya) which provides for supervision of the Ministry of Health.

9. The petitioners argue that the parallel licensing system under Section 16 and 84 of the Act and section 3B and 44 of the Pharmacy and Poisons Act create unpredictability and uncertainty in the licensing process and that since the coming into operation of the Act, a period of over 25 years, there is no Licensing Board in place as contemplated under section 16 of the Act. Consequently, the absence of a licensing board has rendered sections 16 and 84 of the Act redundant with the result that the constitutional rights of the 2nd Petitioner, cannabis sativa medicinal users and patients, their caregivers, dependants and other legitimate users have been violated.

10. The Petitioners argue that the definitions of ‘cannabis”, “cannabis plant”, “prohibited plant”, or “narcotic drug” under section 2, the First, Second and Third Schedule of the Act are in conflict with Article 28 (2) of the Single Convention on Narcotic Drugs of 1961 (1961 Convention); that sections 4, 5 and 6 of the Act do not recognize the genetic value of cannabis landraces or the circumstances under which cannabis plant material or seeds may be collected, nurtured, preserved or economically exploited within the limits of the 1961 Convention and other International Instruments specified under paragraph 116 of the Petition.

11. It is the Petitioners’ case that the absence of regulations on seed banking and trade of cannabis seeds constitute significant barriers to the Petitioners and other Kenyans seeking to engage in legitimate research, cultivation, manufacture, trade, import and export of indigenous cannabis seeds thereby violating the Constitution of Keya and the international instruments cited in this Petition.

12. They argue that the blanket prohibition to traffic and cultivate cannabis sativa under the Act together with the inaction of the 1st, 2nd and 3rd Respondents has given the 4th Respondent leeway to exploit, market and sell Kilimanjaro cannabis seeds derived from the Kenyan jurisdiction without consent from the local communities, access permits or adequate compensation as required by international conventions and domestic regulations such as Article 15(5) of the Convention on Biological Diversity, Article 6(2) of the Nagoya Protocol, section 53 of the Environmental Management and Coordination Act (EMCA), and specific paragraphs of the Environmental Management and Coordination (EMCA) Conservation of Biological Diversity and Resources, Access to Genetic Resources, and Benefit Sharing Regulations.

13. It is the case for the petitioners that the 1st Petition has acquired an economic interest and/or right to property in the cannabis seed industry which is permissible under Article 28 (2) of the 1961 Convention, the said right cannot be effectively realized under the current circumstances except under the current provisions of the Act.

Alleged violations of the Constitution 14. The Petitioners claim that:a.Articles 10 (2) (c), 40, 47 (1), 232 (1)(c) & (e) and 259 (8) of the Constitution have been violated by the 1st Respondent’s refusal, negligence and/or failure to constitute a licensing board or make regulations for over 25 years as contemplated under section 16 and 84 of the Act respectively.b.Articles 10 (2) (c), 40, 43 and 47 (1) of the Constitution have been violated by the 2nd Respondent’s failure to formulate, develop rules and regulations on medicinal cannabis, manufacture, cultivation, sale, trade, import and export to give effect to section 3 (3) of the Act and Articles 2, 4 and 26 of the 1961 Convention.c.The principles of certainty, good governance, transparency, accountability, integrity, effective, efficient and economic use of resources under Articles 10 (2) (c), 40, 47 (1), 232 (1) (b) (c) and (e) of the Constitution have been violated by the creation of parallel licensing structure in respect to cultivation, manufacture, production, and supply of cannabis for medicinal and scientific uses under Section 16 and 84 (2) & (3) of the Act and section 3B (2), Part III and IIA, and section 44 of the Pharmacy and Poisons Act.d.Articles 11 (2) (b) (c), 40 (1), 69 (1) (a) (c ), (e) and (h) of the Constitution have been violated in that sections 2, 3, 4 and 6, together with 1st and 3rd Schedule of the Act fails to provide exceptions for scientific use, research and economic exploitation of cannabis germplasm or seeds by Kenyans.e.Article 2 (5) (6), 11(2) (b) (c) and 40 (1) of the Constitution have been violated by the omission under section 2, 1st and 3rd Schedule of the Act to provide a nomenclatural difference between psychoactive cannabis and non-psychoactive cannabis for industrial and horticultural use.f.Articles 40 (1), 69 (1)(a) (c) (e) and (h) of the Constitution of Kenya have been violated by the 4th Respondent’s exploitation of Kilimanjaro sativa landrace found within the Republic of Kenya to the detriment of the petitioners, local communities and the wider public without legal access rights or compensation.

Reliefs sought 15. The Petitioners are seeking the following reliefs:(a)A declaration that failure by the 1st and 2nd Respondents to comply with their statutory duties under sections 16 and 84(2) and (3) of the Narcotic and psychotropic substances Act and sections 3B(2), part III and IIA and section 44 of the Pharmacy and Poisons Act (Cap 244) respectively infringes on the rights of the petitioners and the people of Kenya as enshrined under articles 10 2(c) , 11(2)(b), c, 40(1), 43(1), 47, 69(1)(a),(c (e) (h) and 232(1) (b) (e) and 259 (8) of the Constitution.(b)A declaration that the 4th Respondent’s access, extraction, and the continued exploitation of the Kilimanjaro cannabis landrace plant and/or seeds is in violation of the constitutional rights of the petitioners and the local communities in the affected area and which the 1st, 2nd, 3rd and 4th Respondents are jointly and severally liable.(c)A declaration that cultivation of cannabis for industrial use (fiber and seed), non-psychoactive cannabis plants with a Delta 9 Tetrahydrocannabinol content of less than 0. 3 percent or the cultivation of cannabis for medicinal use is not subject to prohibition under the provisions of section 2, 3, 4, 6 as read together with the First and Third Schedule of the Narcotic and Psychotropic Substances (Control) Act.(d)A declaration that the provisions of sections 16 and 84 (2) and (3) of the Narcotic and Psychotropic Substances (Control) Act are unconstitutional and that the Pharmacy and Poisons Board of Kenya is the recognized agency for licensing of licit use of narcotic drugs and psychotropic substances.(e)An order of injunction restraining the 4th Respondent, whether by itself, its agents, privies and servants, acting for and on its behalf whether jointly or severally from advertising, marketing, disposing, selling or howsoever dealing or trading in the Kilimanjaro cannabis seed variety or its derivatives except in accordance with the laid down provisions of the law.(f)An order of mandamus be issued to compel the 2nd Respondent to forthwith make comprehensive regulations on medicinal cannabis cultivation, production, extraction, importation, exportation and supply within the country.(g)A compensatory order against the 4th Respondent to be shared between the 1st and 3rd petitioners, identifiable, local community groups within the affected area of extraction and the County Government of Kajiado.(h)That there be no orders as to costs of these proceedings, the same being a public spirited petition with public interest issues of access to justice for the public good save as against the 4th Respondent.(i)Any such other order(s) as this Honourable court shall deem just in the circumstances.

Respondent’s case 16. The Petition is opposed by the 1st, 2nd and 3rd Respondents through Grounds of Opposition dated 12th January, 2021. The gist of their case is that the Petition does not disclose any violation of the petitioner’s fundamental rights and freedoms; that it has not been pleaded with precision and therefore does not provide adequate particulars of the claim relating to any alleged violation of the constitution; that the petitioners have failed to show what harm they have suffered as a result of the violation occasioned by the said sections of the Narcotic Drugs and psychotropic substances Act and that the Petition does not disclose any unconstitutionality of any impugned sections of the Narcotic Drugs and Psychotropic Substances Act.

17. The 1st, 2nd and 3rd Respondents have argued that the overall objective of the Act is to protect the interest of the public against possession and trafficking in narcotic drugs and psychotropic substances and cultivation which are harmful to them.

18. They have argued that the law places the burden of proving the allegations of violations of fundamental rights and freedoms on the party so claiming; that there is no justification for declaring section 16 and 84(2) and (3) of the Act unconstitutional; that there is presumption of constitutional validity of the legislation until the contrary is proved and that the Petition is frivolous, vexatious and an abuse of the process of the court and does not raise a cause of action against the Respondents.

19. The 4th Respondent did not participate in these proceedings despite having been served with the Petition.

Interested Parties’ case 20. The 1st Interested Party filed an affidavit sworn by Kibet Kisorio, head of Legal Services at the Pharmacy and Poisons Board (the Board) dated 14th January, 2021. He has deposed that the Board is a statutory body established under the Pharmacy and Poisons Act and whose mission is to protect the health of the public by regulating the profession of pharmacy and ensuring quality, safety and efficacy of medical products and health technologies so as to ensure that only registered medicines are available to Kenyan public. He has deposed that he is aware that the Pharmacy and Poisons Act was amended in 2019 vide the Health Laws Amendments 2019 where the functions of the Board were outlined under section 3B as, among others, to regulate licit use of narcotic, psychotropic substance and precursor chemical substances in accordance with either the 1961 Convention, the Convention on Psychotropic Substances 1971 and the UN Convention against illicit Traffic Drug and Psychotropic Substances, 1988.

21. It is deposed that the Ministry of Interior and Coordination of National Government plays a crucial role in licensing of cultivation of medicinal cannabis contrary to Petitioners’ assertions; that although there is new push globally to allow medicinal cannabis, further research is necessary in order to clarify the residual uncertainties of the relative efficacy and safety of various medicinal cannabis products and that it is imperative that clearly defined regulations on medicinal cannabis cultivation, production, extraction and supply with appropriate control mechanisms to guard against abuse and protection of vulnerable members of the population should be put in place.

22. The 2nd and 4th Interested Parties did not file any responses to the Petition.

23. The 3rd Interested Party withdrew its participation through their application dated 17th June, 2020.

Petitioner’s Submissions 24. This court (Mwita, J) gave directions on 7th December 2020 that this Petition be canvassed through written submissions. The Petitioners filed submissions dated 13th January 2023 on the same date. I have read the same, and I need not replicate them in this judgment word for word. I will however highlight the same.

25. The petitioners have submitted that none of the Respondents or Interested Parties have refuted the detailed facts contained in the Petition on the cannabis plant, its medicinal and therapeutic applications, its industrial applications, its genetic resource value, and its economic value.

26. It is the submission of the Petitioners that the 1st, 2nd and 3rd Respondents have failed to provide any reasonable or adequate response on the issue of the existence of two parallel and conflicting licensing procedures and that their response dwells on the provisions of the law dealing with prohibition of cannabis which the petitioners are not challenging. It is submitted that in the light of the amendments of the provisions of the Pharmacy and Poisons Act in 2019, it is inconceivable that the intention of parliament was to create a dual licensing procedure under different government departments.

27. The Petitioners highlighted the exceptions contained in subsection (3) to the criminal offences created under section 3 of the Act and submitted that the Minister (Cabinet Secretary) is obligated under section 16 of the Act to establish a Board whose functions are to:a.Issue licences for the importation, exportation, diversion, sale, manufacture, production or distributio8n (at stated places) of any narcotic drug or psychotropic substance.b.Name ports or places in Kenya where any narcotic drug or psychotropic substance may be exported or imported;c.Prescribe the manner in which any narcotic drug or psychotropic substance is to be packed or marked for export;d.Prescribe the records to be kept by any person in connection with the export, import, receipt, sale, disposal or distribution of narcotic drugs or psychotropic substances.

28. It is submitted that section 84 of the Act grants powers to the Minister to make regulations for purposes, inter alia, prescription of standards for narcotic drugs and psychotropic substances, sale or supply, importation, exportation or diversion, manufacture, production or distribution of any narcotic drug and psychotropic substances. It is submitted that the unreasonable delay in constituting a licensing board for over 25 years resulted in violation of 10 (2) (c), 47 (1), 232 (1)(c) & (e) and 259 (8) of the Constitution. It is submitted that the Respondents have not presented evidence that such a board exists. The Petitioner relied on Republic v. Minister for Health & another ex parte Avenue Healthcare Limited [2012] eKLR where it was held that there is a presumption against statutory redundancy in that legislature did not intend to include superfluous provisions.

29. The Petitioners submitted that the 1st, 2nd and 3rd Respondents failed to respond to the Petitioners’ concerns within reasonable time despite the Petitioners’ engaging respective government departments. They relied on Republic v. Cabinet Secretary for Ministry to Interior & Coordination of National Government & 2 others Ex parte Patricia Olga Howson [2013] eKLR.

1st, 2nd and 3rd Respondent’s submissions 30. The 1st, 2nd and 3rd Respondents filed their submissions on 11th October 2022 in which they have raised three issues for determination as follows:a.Whether the impugned sections of the Narcotic Drugs and Psychotropic substances Act are unconstitutional.b.Whether the 1st 2nd and 3rd Respondents violated the petitioner’s rights and freedoms under Articles 2(5)(6), 10(2)(c ), 11(2)(b)(c), 40(1),43(1), 47(1), 69(1)(a,c,e and h), 232(1)(c and e) and 259(8) of the Constitution of Kenya, 2010c.Whether the orders sought by the petitioner should issue.

31. On the 1st issue they have submitted that section 16 of the Act provides for the establishment of a board, its composition and the functions and that section 84 of the Act grants the Minister power to make regulations for carrying out the purposes of the Act. They argued that when it comes to the question as to whether a legislation or part thereof is in conflict with the constitution, the decision ought to be made in line with a number of principles laid down in various authorities including the Supreme Court of India in Hambardda Wakhana -vs- Union of India Air[1960] AIR 554, where it was held that:“In examining the constitutionality of a statute, it must be assumed the legislature understands and appreciates the needs of the people and the law it enacts are directed to problems which are made manifest by experience and the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is therefore in favour of the constitutionality of an enactment.’’

32. They further argued that there is a presumption of constitutionality of statutes as was held in Nyanabo -vs Attorney General [2001] E.A 495 where the court restated the law in the English case of Pearlberg v. Varty [1972] 1 WLR 534 that:“Until the contrary is proved, a legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, a legislation should receive such a construction as will make it operative and not inoperative.”

33. They cited Supreme Court of Canada in R-vs- Big M Drug Mart Ltd [1985]1 S.C.R 295 that in determining the constitutionality of a statue, a court must be guided by the object and purpose of the impugned stated. In that case, the court stated as follows:“Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.’’

34. It is their submission that Article 259 of the Constitution enjoins this court to interpret the constitution in a manner that promotes its purposes, values and principles; advances the rule of law, and human rights and fundamental freedoms in the Bill of Rights; permits the development of the law; and contributes to good governance.

35. They submitted that the petitioners have alleged unconstitutionality of the Act on the claims that the Narcotic Drugs and Psychotropic Act has conflicting and contradicting provisions to the Pharmacy and Poisons Act which causes uncertainty and that there is contradiction of the Act to International Treaties and Conventions. They have argued that the Petitioners ought to have invoked the interpretive role of the court before coming to a self-assessed conclusion that the two sections of the law contradict each other.

36. On the issue of the failure by the minister to set up a board, they argued that the same is administrative and the Petitioners should have exhausted the administrative option to compel the Minister to act if need be.

37. It is submitted that it is settled in law that national laws come above international law with the Constitution being the supreme law of the land as elaborated in Beatrice Wanjiku & another-vs- Attorney General & another [2012] eKLR that:“I do not think the framers of the Constitution would have intended that international conventions and treaties should be superior to local legislation and take precedence over laws enacted by their chosen representatives under the provisions of Article 94. The nature and extent of application of treaties must be determined on the basis of the subject matter and whether there is domestic legislation dealing with the specific issue at hand bearing in mind that legislative authority, which is derived from the people of Kenya, is conferred by Parliament under Article 94. ’’

38. They submitted that it would be uncalled for, for the Petitioners to question the legality of a law by virtue of its inconsistency with international treaties provided the same law is rightly informed by the Constitution and statutory laws.

39. It is submitted that the provisions of the Act are recent compared to the provisions of Pharmacy and Poisons Act which the Petitioners claim has created contradictions; that the timings of the two pieces of legislation calls into question the doctrine of implied repeal, to the effect that where provisions of one Act of Parliament are inconsistent or repugnant to the provisions of an earlier Act, the latter Act abrogates the inconsistency in the earlier as was stated in Martin Wanderi & 19 others vs. The Engineering Registration Board of Kenya & 5 others [2014] eKLR.

40. They submitted that the doctrine is further emphasized in Vauxhall Estates Limited -vs- Liverpool Corporation [1932] 1K. B where it was stated that,“I should certainly hold… that no Act of Parliament can effectively provide that no future Act shall interfere with its provisions… [I]f they [the two statutes] are inconsistent to that extent [viz. so that they cannot stand together], then the earlier Act is impliedly repealed by the latter in accordance with the maxim 'Leges posteriores priores contrarias abrogant.’’

41. The Respondents submitted, on the second issue, that there is a hierarchy of laws with the Constitution being supreme and therefore that the international treaties and conventions are not superior to our constitution or legislation. They submitted that Article 2(5) and (6) of the Constitution regulates the relationship between international law and national law in two ways, firstly by placing the issue of international law within the supremacy clause, the supremacy of the Constitution is emphasized in relation to international law and secondly, the application of international law in Kenya is clarified to the extent that it is not left in doubt that international law is applicable in Kenya (see Beatrice Wanjiku & another v Attorney General & another [2012] eKLR).

42. They submitted that the petitioners have not demonstrated how their rights have been violated and hence not rightly entitles to invoke the constitutional articles and that the rights alleged to have been violated are not absolute and can be limited where the limitation is reasonable and justifiable.

43. It is the submission of the Respondents that the threshold to be met in a claim of violation of constitutional rights is set out in Anarita Karimi Njeru -vs – the Republic 1976-1980 KLR where it was held that:“If a person is seeking redress from the High court on a matter which involves a reference to the Constitution, it is important if only to ensure that justice is done to his case that he should set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.’’

44. The Respondents submitted that the burden of proving allegations of violation of fundamental rights and freedoms rests with the party who claims violation as was held in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR where the court stated that:“It is our finding that the petition before the High Court was not pleaded with precisions as required in constitutional petitions. Having reviewed the petition and supporting affidavit, we have concluded that they did not provide adequate particulars of the claims relating to the alleged violations of the Constitution of Kenya and the Ethics and Anti-Corruption Commission Act, 2011. Accordingly, the petition did not meet the standard enunciated in the Anarita Karimi Njeru case.”

45. It is their submission that it is not enough for the Petitioners to cite the law without providing particulars of the alleged violation; that the Petitioners have not shown how the alleged violations were committed and to what extent, which they ought to have shown by way of evidence based on pleadings, and therefore the Petition has not met the threshold in the above authorities making it frivolous, vexatious and incompetent.

46. On the third issue, the Respondents have submitted that the Petitioners have failed to discharge the burden of proof and are undeserving of the orders they are seeking and therefore the Petition should be dismissed with costs to the Respondents.

Analysis and Determination 47. I have taken time to read and understand the pleadings of the parties. From the court file record, this Petition was filed in Nairobi as Petition No. 489 of 2019. It was handled by Hon. Mr. Justice Makau, as he then was. The matter was transferred to Kajiado High Court through order of the court (Makau, J) dated 16th November 2020. It was placed before Hon. Mr. Justice Mwita on 7th December 2020 when directions were issued to the parties to canvass the Petition through written submissions. Parties were directed to file their submissions.

48. I took over the conduct of these proceedings on 26th May 2022 at which time no party had filed submissions. This situation was to remain until 11th October 2022 when the 1st, 2nd and 3rd Respondents filed their submissions. The Petitioners filed their submissions on 13th January 2023. I have read the entire file as I prepared to write this judgment, I have noted that some documents mentioned by the Petitioners are not in the court file. For instance, the Affidavit of Raphael Kamuto (the 2nd Petitioner) said to have been filed on 6th December 2020 is not in the court file. From the file records, this file had not been transferred to Kajiado at that time this affidavit is said to have been filed and therefore I was not able to trace that affidavit either in the Kajiado High Court email or CTS system. Secondly, I was also not able to trace a Further Affidavit of the 1st Petitioner said to have been sworn on 7th January 2023, either in our email or CTS.

49. I wish to state here that this Petition has introduced some technical aspects that would have required oral evidence, specifically from experts from scientific fields. There are shortcomings in relying on written submissions in a complex matter like this one because there is a lot that written submissions do not reveal. Oral evidence allows cross -examination of parties which brings out issues that would not be disclosed in written submissions. I have faced challenges in determining this matter especially on areas that are technical in nature.

50. My reading of the pleadings and documents filed by the Petitioners show that Petitioners have not identified any issues for determination. The 1st, 2nd and 3rd Respondents have identified three issues for determination as shown in their submissions. For purposes of determining this Petition, I will adopt the issues identified by the 1st, 2nd and 3rd Respondents as the issues for determination as follows:i.Whether the impugned sections of the Narcotic Drugs and Psychotropic substances Act are unconstitutional.ii.Whether the 1st 2nd and 3rd Respondents violated the petitioner’s rights and freedoms under Articles 2(5)(6), 10(2) (c), 11(2)(b)(c), 40(1),43(1), 47(1), 69(1)(a) (c),(e) and (h), 232(1)(c) and (e) and 259(8) of the Constitution of Kenya, 2010iii.Whether the orders sought by the petitioner should issue.

Whether the impugned sections of the Narcotic Drugs and Psychotropic Substances Act are unconstitutional. 51. The provisions of the law the Petitioners are alleging are contradictory are section 16 and 84 of the Narcotics and Psychotropic Substances Act and section 3B and 44 of the Pharmacy and Poisons Act. For emphasis, it is important to replicate the stated provisions:Section 16 Board to issue licences for export, import, manufacture, etc.(1)The Minister shall establish a Board which shall consist of—(a)the Attorney-General or his representative;(b)the Permanent Secretary of the Ministry for the time being responsible for Provincial Administration and/or Internal Security or his representative; x(c)the Permanent Secretary of the Ministry for the time being responsible for health or his representative;(d)the Commissioner of Police or his representative;(e)three other persons appointed by the Minister of whom one shall be appointed as the chairman.(2)The Board shall—(a)issue licences for the importation, exportation, diversion, sale, manufacture, production or distribution (at stated places) of any narcotic drug or psychotropic substance;(b)name ports or places in Kenya where any narcotic drug or psychotropic substance may be exported or imported;(c)prescribe the manner in which any narcotic drug or psychotropic substance is to be packed or marked for export; and(d)prescribe the records to be kept by any person in connection with the export, import, receipt, sale, disposal or distribution of narcotic drugs or psychotropic substances.

52. Section 84 (1) provides that the Minister shall make regulations for carrying out the purposes as specified in detail under section 84(2).

53. Section 3B (2) of the Pharmacy and Poisons Board which section provides that:The Board shall perform the following functions in relation to regulation of health products and technologies—(a)advise the national and county governments in all matters relating to the safety, packaging and distribution of medicines;(b)ensure that all medicinal products manufactured in, imported into or exported from the country conform to prescribed standards of quality safety and efficacy;(c)ensure that the personnel, premises and practices employed in the manufacture, storage, marketing, distribution and sale of medicinal substances comply with the defined codes of practice and other prescribed requirements;(d)enforce the prescribed standards of quality, safety and efficacy of all medicinal substances manufactured, imported into or exported out of the country;(e)grant or revoke licenses for the manufacture, importation, exportation, distribution and sale of medicinal substances;(f)maintain a register of all authorized medicinal substances; (g) publish, at least once in every three months, lists of authorized or registered medicinal substances and of products with marketing authorizations;(h)regulate licit use of narcotic, psychotropic substances and precursor chemical substances in accordance with either the Single Convention on Narcotic Drugs of 1961, the Convention on Psychotropic Substances 1971, and the UN Convention against Illicit Traffic Drug and Psychotropic Substances, 1988;(i)consider applications for approval and alterations of dossiers intended for use in marketing authorization of medicinal substances;(j)) inspect and license all manufacturing premises, importing and exporting agents, wholesalers, distributors, pharmacies, including those in hospitals and clinics, and other retail outlets;(k)prescribe a system for sampling, analysis and other testing procedures of finished medicinal products released into the market to ensure compliance with the labeled specifications; (l) conduct post-market surveillance of safety and quality of medical products;(m)monitor the market for the presence of illegal or counterfeit medicinal substances;(n)regulate the promotion, advertising and marketing of medicinal substances in accordance with approved product information;(o)approve the use of any unregistered medicinal substance for purposes of clinical trials and compassionate use;(p)approve and regulate clinical trials on medicinal substances;(q)disseminate information on medical products to health professionals and to the public in order to promote their rational use;(r)collaborate with other national, regional and international institutions on medicinal substances regulation;(s)advise the Cabinet Secretary on matters relating to control, authorization and registration of medicinal substances; and (t) perform any other function relating to regulation of medicinal substances

54. While section 44 of the Pharmacy and Poisons Act, the Minister of Health is mandated to make rules for purposes of that Act.

55. It is clear from the pleadings and arguments of the parties that the Board contemplated under sections 16 and 84 of the Act is not in existence. It has not been established, hence this Petition. The Board under section 3B (2) of the Pharmacy and Poisons Board exists. It is because of the absence of the Board contemplated under sections 16 and 84 of the Act and the existence of the Board under section 3B (2) of the Pharmacy and Poisons Board that has necessitated the argument by the petitioners that the parallel licensing system under Section 16 and 84 of the Act and section 3B and 44 of the Pharmacy and Poisons Act creates unpredictability and uncertainty in the licensing process and that the lack of licensing board of over 25 years has rendered sections 16 and 84 of the Act redundant with the result that the constitutional rights of the 2nd Petitioner, cannabis sativa medicinal users and patients, their caregivers, dependants and other legitimate users have been violated.

56. On the other hand, the Respondents’ argument is that the doctrine of implied repeal applies in this petition in that the provisions of the Narcotic Drugs and Psychotropic Substances Act are legally sufficient without reliance on the provisions of the Pharmacy and Poisons Act. They argued that the Narcotic Drugs and Psychotropic Substances Act being the ‘younger’ Act impliedly repealed the Pharmacy and Poisons Act. In holding this view, the Respondents cited several authorities including Vauxhall Estates Limited vs. Liverpool Corporation [1932] 1KB and Elle Kenya Limited and 9 others vs. the Attorney General and 3 others [2013] eKLR. In the latter case, the court found that the provisions of the Alcoholic Drinks Act, 2010 was invalid by virtue of it being impliedly repealed by section 91A of the Customs and Excise Act as amended by Section 3 of the Finance Act, 2010…… Therefore, the provisions of the former Act are invalid and cannot continue to apply in view of the subsequent amendment to section 91A of the Customs and Excise Act.

57. I agree with the Petitioners that the existence of parallel licensing system under both legislation creates uncertainty and unpredictability. In my view, the parallel licensing system also creates confusion and lack of clarity as to which agency is responsible for this very crucial activity. To my mind, what was stated in Pearlberg v. Varty [1972] 1 WLR 534 that: “Until the contrary is proved, a legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, a legislation should receive such a construction as will make it operative and not inoperative” rings true.

58. Further in Hambardda Wakhana -vs- Union of India Air [1960] AIR 554, the court held that:“In examining the constitutionality of a statute, it must be assumed the legislature understands and appreciates the needs of the people and the law it enacts are directed to problems which are made manifest by experience and the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is therefore in favour of the constitutionality of an enactment.’’

59. I agree with these authorities. I also agree with the Respondents that the doctrine of implied repeal is applicable here to the effect that sections 16 and 84 of the Narcotic Drugs and Psychotropic Substances Act, being the Act enacted after the Pharmacy and Poisons Act, impliedly repealed sections 3B and 44 of the Pharmacy and Poisons Act, specifically on areas that deal with cannabis sativa and psychotropic substances. It is my considered view, therefore, that sections 16(2) and 84 (2) of that Act are legally sufficient for purposes specified in them, which purposes include: issuing licenses for importation, exportation, diversion, sale, manufacture, production or distribution (at stated places) of any narcotic drug and psychotropic substance; naming of ports or places in Kenya where any narcotic drug or psychotropic substance may be exported or imported; prescribing the manner in which any narcotic drug or psychotropic substance is to be packed or marked for export and prescribing the records to be kept by any person in connection with the export, import, receipt, sale, disposal or distribution of narcotic drugs and psychotropic substances.

60. It is my finding that in so far as the parallel licensing system under Section 16 and 84 of the Act and section 3B and 44 of the Pharmacy and Poisons Act is concerned, there is no unconstitutionality of sections 16 and 84 of the Narcotic Drugs and Psychotropic Substances Act as claimed by the Petitioners by virtue of the doctrine of implied repeal.

Whether the 1st 2nd and 3rd Respondents violated the petitioner’s rights and freedoms under Articles 2(5)(6), 10(2) (c), 11(2)(b)(c), 40(1),43(1), 47(1), 69(1)(a) (c),(e) and (h), 232(1)(c) and (e) and 259(8) of the Constitution of Kenya, 2010 61. For ease of reference, the constitutional provisions cited above are reproduced here below:i.Article 2 (5) and (6) of the Constitution provide that the general rules of international law shall form part of the law of Kenya and that any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.ii.Article 10 (2) (c) provides the National Values of good governance, integrity, transparency and accountability.iii.Article 11 (2) (b) and (c) provides that the State shall (b) recognizethe role of science and indigenous technologies in the development of the nation and (c) promote the intellectual property rights of the people of Kenya.iv.Article 40 (1) provides that every person has the right, either individually or in association with others, to acquire and own property— (a) of any description; and (b) in any part of Kenya.v.Article 43 (1) is about economic and social rights of individuals.vi.Article 47 (1) provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.vii.Article 69 (1) (a) (c) (e) and (h) obligates the State to — (a) ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits; …….. (c) protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities; ……. (e) protect genetic resources and biological diversity; …… and (h) utilise the environment and natural resources for the benefit of the people of Kenya.viii.Article 232 (1) (c) and (e) provides that the values and principles of public service include (c) responsive, prompt, effective, impartial and equitable provision of services; and (e) accountability for administrative acts.ix.Article 259 (8) provides that (8) If a particular time is not prescribed by this Constitution for performing a required act, the act shall be done without unreasonable delay, and as often as occasion arises.

62. This being a constitutional petition, the threshold to be met in proving violation of constitutional rights is set out in various authorities including Anarita Karimi Njeru, cited above, where it was stated that:“If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with reasonable degree of precision that of which he complains, the provisions said to be infringed and the manner in which they are alleged to be infringed.”

63. The same principle is repeated in Mumo Matemu case, cited above, that:“It is our finding that the petition before the High Court was not pleased with precision as required in constitutional petitions. Having reviewed the petition and supporting affidavit, we have concluded that they did not provide adequate particulars of the claims relating to the alleged violations of the Constitution of Kenya and the Ethics and Anti-Corruption Commission Act, 2011. Accordingly, the petition did not meet the standard enunciated in the Anarita Karimi Njeru case.”

64. I have mentioned elsewhere in this judgment that the affidavit said to have been filed by the 2nd Petitioner is not in the court file. It is not clear from the pleadings and the court documents what cause of action the 2nd Petitioner pleads in this Petition. Likewise, I have found no evidence that the 3rd Petitioner exists or is involved in environmental conservation or farming and seed bulking or banking.

65. I have also considered the issue of the involvement of the 4th Respondent. From the court records, the 4th Respondent was served with the petition and court documents outside the jurisdiction and did not respond to the Petition or in any manner participate in these proceedings. However, its failure to participate in these proceedings does not take away the responsibility of the Petitioners, who shoulder the burden of proving the case against the Respondents. The burden of proof remains with the petitioners to satisfy this court that their rights under the constitution have been violated by the Respondents. Further, I have not found any specific evidence that the petitioners have acquired economic interests and/or rights to property in the cannabis seed industry.

66. My reading of the pleadings does not show any evidence that the 4th Respondent is involved in the exploitation, marketing and selling of Kilimanjaro cannabis seeds derived from Kenyan jurisdiction. If such evidence exists, there is nothing presented to this court that this is the case. The Petitioners bear the burden of proving violation of their rights by the Respondents including the 4th Respondent to the standard set out in Anarita Karimi case which burden, as far as the 4th Respondent is involved in the above activities, has not been discharged.

67. I agree with the Petitioners that failure to constitute a Board under section 16 and make regulations under section 84 of the Act for over 25 years violates Article 10 (2) (c), specifically the National Values of good governance, transparency, and accountability. However, the Petitioners have not demonstrated how failure to constitute the Board and make regulations have violated their rights to acquire and own property of any description and in any part of Kenya as provided under Article 40(1) of the Constitution.

68. It is my considered view that failure to constitute a Board and make regulations under sections 16 and 84 of the Act for over 25 years violates Article 47 (1), the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair as well as Article 232 (1) (c) and (e), values and principles of public service which includes responsive, prompt and accountability for administrative acts. However, it is my considered view that the Petitioners have not demonstrated that the above stated failure has violated their economic and social rights.

69. The object and purpose of the Narcotic Drugs and Psychotropic Substances Act is found in its preamble, “An Act of Parliament to make provision with respect to the control of the possession of, and trafficking in, narcotic drugs and psychotropic substances and cultivation of certain plants; to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances and for connected purposes”.

70. In R-vs- Big M Drug Mart Ltd [1985]1 S.C.R 295 the court stated as follows:“Both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and achieved effects have been looked to for guidance in assessing the legislation’s object and thus the validity.’’

71. A reading of the Narcotic Drugs and Psychotropic Substances Act shows clearly that the legislature’s object and purpose was to control inter alia, the possession, trafficking, smoking, and cultivation of cannabis.

72. It is my considered view that, failure by the 1st, Respondent to act as mandated under sections 16 and 84 of the Act has created barriers to legitimate research, cultivation, manufacture, trade, import and export of indigenous cannabis. It is true that the Act does not provide exceptions for scientific use, research and economic exploitation of cannabis, its germplasm or seeds. I believe the world is advancing and there is nothing, in my view, to stop the legislature to enact enabling statute in respect of legitimate scientific use, research and economic exploitation of cannabis for medicinal and other legitimate purposes in line with Article 11 and 69 of the Constitution. It is my considered view that the provisions of the Act do not violate the Constitution by not providing exceptions to scientific use, research and economic exploitation of cannabis.

73. Furthermore, the Constitution under Article 11 mandates the State to recognize the role of science and promotion of intellectual property of the people of Kenya.

74. I have considered the allegations by the Petitioners that 1st, 2nd and 3rd Respondents’ failure to address the 1st Petitioner’s concerns against the Respondents submissions that the petitioners did not exhaust the administrative procedures before coming to court. I have noted that the 1st Petitioner has stated that on various occasions he made applications to the relevant authorities to be licensed and the same has not been acted upon. There is an application dated 18th January 2019 and letters dated 12th March, 2019, and 1st April, 2019 to the Minister of Interior and Co-ordination of National Government, which application and letters went unattended. The Respondents did not address themselves to the said application and the letters.

75. It is my view that failure by the Respondents, specifically the 1st Respondent, to act in respect of the Application and the correspondence from the 1st Petitioner violated his rights under Article 47 (1) of the Constitution, which provides that, every person has the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair.

Reliefs granted 76. After my careful reading and consideration of this Petition, it is my view that the Petitioners have generally failed to plead their case with precision. They have failed to provide adequate particulars of the alleged violations of their rights under the Constitution in certain respects. They have also failed to show what harm, if any, they have suffered because of the alleged violations occasioned by the named sections of the Narcotic Drugs and Psychotropic Substances Act.

77. Specifically, I make the following orders, that:i.A declaration is hereby made that failure by the 1st and 2nd Respondents to comply with their statutory duties under sections 16 and 84 (2) and (3) of the Narcotic Drugs and Psychotropic Substances Act and Sections 3B (2) Part III and IIA and 44 of the Pharmacy and Poisons Act respectively violates Articles 10 (2) (c), 47 (1), 232 (1) (a) (e), 11 (2) (b) (c) and 69 (1) (a) (c) and (e).ii.Prayer B of the Petition is not granted for the reasons given in the judgment.iii.Prayer C of the Petition is not granted for lack of evidence.iv.Prayer D of the Petition is not granted for reasons given in this judgment.v.Prayer E of the Petition is not granted for reasons given in this judgment.vi.Prayer F of the Petition is granted for reasons given in this judgment.vii.Prayer G of the Petition cannot issue for reasons given in this judgment.viii.The Cabinet Secretary, Ministry of Interior and Coordination of National Government is hereby ordered and directed to comply with the provisions of section 16 and 84 of the Narcotic Drugs and Psychotropic Substances Act within a period of 24 months from the date of this judgment.ix.Costs of this Petition are payable to the 1st Petitioner by the 1st Respondent.

78. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 15TH DAY OF NOVEMBER 2023. S. N. MUTUKUJUDGE