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Mastermind smoking case due August 5

NAIROBI, July 29 – A case by a cigarette manufacturer challenging the implementation of new laws governing smoking in public will now be heard on August 5, as directed by the High court on Tuesday.

Justice Roselyne Wendo ordered parties to file written submissions on or before the hearing date and ruled that the case be heard before a vacation judge.

Mastermind Tobacco Kenya Limited moved to court early this month seeking to nullify the Tobacco Act of 2007, arguing that it was unconstitutional, irrational and not a legitimate exercise of the state police powers.

The company claimed that the Act that is currently in force criminalised the production, manufacture, sale, labelling, advertising, promotion and sponsorship of tobacco products.

It also argued that the criminal sanctions contained in the Act were not severable from other provisions, which in their opinion, amounted to a breach of the constitution.

“The Act creates penal sanctions and/or imposes penal consequences despite neither the fact that the manufacture and use of tobacco products is not a prohibited activity,” the suit papers read.

The new law that seeks to regulate the production, marketing and smoking of tobacco was implemented on July 11 and has drawn sharp criticism from a cross-section of players.

It prohibits smoking in public places and the sale of cigarettes to people below the age of 18.

The legislation further provides that smokers only be allowed to buy a minimum of 10 cigarettes, and in a packet.

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The tobacco company, consequently in its petition, besieged the court to declare all penal sanctions in the Tobacco Control Act irrational, hence null and void.

The bone of contention however seemed to centre on the penalties that would result from violations of the Act by any of the parties bound by it.

The law prohibits the manufacture, distribution or sale of accessories such as lighters that display a tobacco product-related brand name or the name of the manufacturer, as well as the display of tobacco brand elements on umbrellas, bags and clothing, among others.

The company claims that the Act came into force ‘as a statute controlling the production, sale, labelling, advertising, promotion and sponsorship of tobacco products’, which drew their interest into the matter.

But the purpose and object of the Act declared was, the company intimated, to provide a framework for the control of the said activities.

“The objects expressed as afore stated are far removed from any legitimate criminal law process and the manufacture and use of Tobacco products does not, per se, pose a danger to public health,” it argued.

It also argued that the Act allows the imposition of tax and price policies that are discriminatory and the whole Act seeks to interfere with its rights of trade.

Meanwhile, five trustees of the Institute of Legislative Affairs Trust (ILA) want to be enjoined in the case as interested parties, claiming they have a stake in any legislative process.

They say their organisation is among other things required to offer technical assistance to stakeholders in legislative processes, part of which the legislation was.

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