The government has suffered a major setback after the High Court suspended a directive by Health Cabinet Secretary (CS) Aden Duale that had halted all licenses and import clearances for the manufacture, importation, distribution, or sale of nicotine and related products.

Justice Bahati Mwamuye, on Thursday, issued a conservatory order staying the CS’s decision made on May 31, pending the determination of a case filed by Susan Awino, who has termed the move illegal, null, and void, arguing it usurps the powers of the Kenya Revenue Authority (KRA) Commissioner-General.

She further argues that neither the CS nor the Kenya Tobacco Control Board has the authority to license or cancel importation clearances for nicotine or related products. 

“Pending the hearing and determination of the petition herein, a conservatory order be and is hereby issued staying the 2nd Respondent’s (Duale’s) impugned decision made on or about May 31, 2025, suspending all existing licenses and import clearances relating to the manufacture, importation, distribution, sale, or promotion of nicotine and related products and requiring all previously licensed persons and entities to re-apply for the same,” ruled Justice Mwamuye.

While issuing the directive, CS Duale required all previously licensed persons and entities to re-apply for licenses within 21 days, subject to full compliance.

Awino, describing herself as a public-spirited citizen, told the court that the CS’s blanket suspension of licenses and importation clearances was issued without prior and adequate notice to affected dealers or the public. 

She argued that it violated Section 4 of the Fair Administrative Action Act, 2015, which requires that those affected by an administrative decision be allowed to be heard.

“This rash decision by CS Duale to suspend licenses and clearances previously issued to dealers of nicotine and related products is ultra vires, illegal, and blatantly violates the rule of law under Article 10 of the Constitution, and the right to fair administrative action under Article 47,” Awino stated.

She added that the Ministry failed to consider the cost implications of obtaining licenses and clearances, thus burdening dealers and the public with unnecessary expenses and infringing upon their economic rights under Article 43 of the Constitution.

“To suspend the licenses and importation clearances of dealers in nicotine or related products is arbitrary, unreasonable, and not proportionate to the rights of the affected dealers,” she said.

“The declaration made by the minister purporting to cancel licenses held by dealers in tobacco products contravenes the Bill of Rights as well as the Constitution of Kenya, 2010. It is inconsistent with constitutional dictates and is therefore null and void to the extent of that inconsistency,” the petition reads. 

Awino also told the court that, following CS Duale’s declaration, the Kenya Tobacco Control Board and other enforcement agencies had moved swiftly to implement the directive, throwing the sector into turmoil and undermining the legitimate expectations of both dealers and users of nicotine products in Kenya.

“Many importers, manufacturers, retailers, and distributors risk being driven out of business unless this matter is certified urgent and heard on a priority basis. If the declaration is not quashed, the adjudicatory authority of this Honourable Court will be rendered an academic exercise. Constitutional values will be violated, and dealers, users, and the general public will suffer immense violations of their rights,” she urged the court.

She also submitted that the suspension of licenses issued under Section 15 of the Excise Duty Act, 2024, falls under the mandate of the KRA Commissioner-General as per Section 20 of the same Act.

“Thus, the purported suspension of the licenses and import clearances by the Respondent is a usurpation of the powers of the Commissioner-General and therefore ultra vires, illegal, null, and void,” Awino stated.

Awino also pointed out that in 2022, the Ministry of Health, through the board, reviewed samples of electronic cigarettes in line with the Tobacco Control Act and Tobacco Control Regulations, 2014.

These products, she said, were found to be compliant with packaging and labelling requirements and were cleared for importation and sale in Kenya.

CS Duale issued the suspension directive on May 21, 2025, while attending World No Tobacco Day celebrations at Moi Teaching and Referral Hospital (MTRH) in Eldoret.

Justice Mwamuye has directed the Ministry of Health, the Kenya Tobacco Control Board, and the Attorney General to file their responses by June 23.

The matter will be mentioned on July 3 for further directions. By Nancy Gitonga | The Standard