Public participation does not mean that the loudest stakeholder gets the rule it wants. British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health, decided by the Supreme Court of Kenya in 2019, is one of the clearest Kenyan authorities on that distinction. The practical question was how a regulator can make rules affecting a powerful industry while still giving affected people a constitutionally meaningful opportunity to participate, and how a court should evaluate commercial-rights objections when the regulation is directed at a serious public-health risk.

The regulations that brought the dispute to court

The Cabinet Secretary for Health made the Tobacco Control Regulations 2014 under the Tobacco Control Act 2007. The Regulations dealt with matters including health warnings and packaging, disclosure of tobacco ingredients and industry information, smoke-free environments, interactions between tobacco businesses and public officers, and a two per cent solatium compensatory contribution based on the value of tobacco products manufactured or imported. British American Tobacco Kenya challenged the scheme in the High Court on procedural, statutory and constitutional grounds.

Among the complaints were inadequate consultation, non-compliance with the Statutory Instruments Act, failure concerning a regulatory impact statement, discrimination, and infringement of property, privacy and intellectual-property interests. The High Court upheld most of the regulatory scheme but invalidated particular provisions. The Court of Appeal largely agreed. BAT then appealed to the Supreme Court under Article 163(4)(a), which gives an appeal as of right where a case involves constitutional interpretation or application.

Public participation is a constitutional duty, not a publicity exercise

The Supreme Court reaffirmed that public participation under Article 10 is an immediately enforceable constitutional principle rooted in the sovereignty of the people. The public authority responsible for the measure bears the duty to facilitate participation using reasonable means. The absence of a detailed statute prescribing every participatory step is not an excuse for doing nothing. The process must be real rather than cosmetic, but its adequacy is assessed in context rather than by a universal number of meetings or submissions.

The Court’s framework makes the concept practical. The subject should be clear enough for people to understand. The channels for participation should be usable. There should be a genuine opportunity for public influence, commitment by the decision-maker, inclusive representation, integrity and transparency, and enough public capacity or sensitisation to engage meaningfully. Participation may take different forms, including meetings and written submissions. What matters is whether the process gave a reasonable opportunity to understand and contribute to the decision being made.

Participation is not a right to control the outcome

BAT Kenya is especially important for regulated businesses because it separates a right to a fair participatory process from a right to have one’s preferred policy adopted. A ministry must listen where the Constitution or statute requires participation, but it does not have to surrender its legal mandate to the industry most directly affected. A submission can be considered and rejected. The constitutional problem arises when the opportunity to participate is illusory, inaccessible, unreasonably rushed, opaque or otherwise incapable of contributing meaningfully to the process.

This distinction also protects the wider public. Tobacco control involves consumers, health professionals, families, workers, businesses and communities, not only manufacturers and importers. A participation design that gives one organised commercial stakeholder effective dominance can be as problematic as a process that excludes that stakeholder altogether. “Balanced influence” in the Supreme Court’s framework is therefore about a defensible process for public decision-making, not equal bargaining power over the final regulation.

Commercial rights still matter, but Article 24 requires balancing

The case also shows how public-health regulation interacts with constitutional rights. The Court upheld differential treatment of the tobacco industry where the special health risks associated with tobacco supplied an objective justification. It also accepted that disclosure duties could affect privacy or intellectual-property interests while concluding that the relevant limitations were reasonable and justifiable under Article 24. The analysis required the court to consider the importance of the regulatory objective, the relationship between the means and that objective, the seriousness of the rights interference, the effect on other people’s rights, and less restrictive means.

That is a more demanding exercise than saying either “health always wins” or “property rights always win.” A regulator defending a limitation should be able to show the evidence connecting the measure to the health objective and explain why the chosen restriction is proportionate. A business challenging it should identify the precise right, the concrete burden, and a realistically available alternative that would achieve the legitimate public-health purpose with less interference. Proportionality works best when both sides move beyond slogans.

The regulatory-impact-statement point is often misunderstood

One of the most useful cautions in BAT Kenya concerns the Statutory Instruments Act. The Supreme Court did not decide that a regulatory impact statement is generally optional. It held that the particular dispute about whether a statement was required or an exemption applied involved statutory interpretation and factual evaluation that did not itself fall within the Court’s Article 163(4)(a) constitutional appellate jurisdiction. The lower-court position on that statutory issue was therefore left undisturbed rather than converted into a new constitutional rule.

The distinction remains practical today. Under the latest Kenya Law version of the Statutory Instruments Act, section 6 requires a regulation-making authority to prepare a regulatory impact statement before making a proposed statutory instrument that is likely to impose significant costs on the community or a part of it. Section 7 requires the statement to explain objectives, effects, alternatives, costs and benefits, and other specified matters. A ministry therefore needs to treat statutory impact assessment and constitutional public participation as related but separate compliance questions.

The international tobacco-control framework adds another duty

Kenya’s regulatory choices also sit within the World Health Organization Framework Convention on Tobacco Control. Article 5.3 requires Parties, in setting and implementing tobacco-control public-health policies, to protect those policies from commercial and other vested interests of the tobacco industry in accordance with national law. The Conference of the Parties’ implementation guidelines recommend, among other measures, limiting interactions with the tobacco industry to those necessary for effective regulation and ensuring transparency when interactions occur.

That international obligation does not erase Kenya’s constitutional commitment to meaningful public participation. It changes the way the process should be designed. A regulator may need to hear affected industry views while keeping interactions transparent, documented and protected from undue influence. BAT Kenya itself upheld restrictions on interactions between tobacco interests and public officers where the differentiated treatment was objectively connected to tobacco-control concerns. The result is not “no consultation”; it is consultation within a public-health governance framework that recognises the risk of regulatory capture.

Why the case is still operational in 2026

Kenya’s tobacco-control framework continues to generate new regulatory work. Legal Notice 107 of 2025 prescribed new graphic health warnings for tobacco products under section 21 of the Tobacco Control Act. The notice was published on 12 June 2025 and provided for the warning labels to come into operation after nine months. The Ministry of Health stated that the warnings followed a nationwide public-participation exercise begun in May 2024. By September 2026, that makes BAT Kenya’s procedural lessons highly practical rather than historical: contemporary tobacco measures still need a record capable of showing how participation and public-health justification were handled.

Later Kenyan courts continue to cite BAT Kenya as a leading framework for evaluating public participation in legislation, delegated legislation and public policy. That continuing use reinforces a simple compliance lesson. A regulator should build the evidential record while the process is happening: notices, accessible proposals, stakeholder mapping, public forums, written submissions, accommodation for participation, records of the views received, and an explanation of how relevant views were considered. A file assembled only after litigation begins is less persuasive than a contemporaneous record of a genuine process.

How a court challenge should be organised

For an advocate challenging a regulation, three questions should be kept separate. Was public participation constitutionally adequate? Were statutory rule-making requirements, including any applicable impact assessment, followed? And are any limitations of protected rights justified under Article 24? Mixing those questions can obscure the correct legal test and, in an appellate case, can even create a jurisdiction problem. Evidence should identify what notice was given, what material was available, who could participate, how much time existed, what barriers affected participation, and how the final rule differed from the proposal presented to the public.

For the regulator, the defence should be equally specific. It is not enough to produce photographs of meetings and say that “consultation occurred.” The authority should be able to connect the process to the actual subject matter, show reasonable access and opportunity, explain how participation was made inclusive, and demonstrate conscientious consideration of the material received. Where a rights limitation is challenged, the regulator should separately show the public-health evidence and the proportionality of the chosen measure.

The wider lesson from BAT Kenya

BAT Kenya is often described as a public-participation case, but its deeper value is that it joins process, institutional jurisdiction and substantive justification. Good regulation requires a lawful decision-maker, a genuine participatory process, compliance with applicable statutory rule-making requirements, and a proportionate response to rights. None of those elements means that every stakeholder must agree with the result.

For businesses, the case offers a realistic expectation: the Constitution protects a meaningful opportunity to be heard and requires justified limitations, not a veto over health policy. For public bodies, it offers an equally realistic obligation: participation must be designed to inform the decision, not to decorate a decision already made. In tobacco control, that balance must also respect the international duty to protect public-health policy from industry interference. The result is demanding, but it is workable when the process is transparent, evidence-based and properly documented.

Source note

This article was prepared from 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) (26 November 2019); the Constitution of Kenya 2010, especially Articles 10, 24 and 163(4)(a); the Tobacco Control Act and Tobacco Control Regulations 2014; the Statutory Instruments Act, especially sections 6 and 7; the WHO Framework Convention on Tobacco Control and the Guidelines for Implementation of Article 5.3; the Tobacco Control (Graphic Health Warnings for Tobacco Products), 2025, Legal Notice 107 of 2025; and Ministry of Health records of the 2024 public-participation exercise on graphic health warnings.

Suggested citation

Ronald Serwanga, “BAT Kenya: Public Participation in Tobacco Control” East Africa Legal Insight (7 September 2026).

Legal information note: This article is for general legal education and does not constitute legal advice for a specific dispute.