By The Weekly Vision Business Desk
A constitutional petition lodged at the Milimani High Court has thrust British American Tobacco (BAT) Kenya into a legal battle that extends well beyond a single product line, raising uncomfortable questions for both the company’s boardroom and the state agencies mandated to police it.
The petition, filed on 22nd July by Vivian Anemba in the Constitutional and Human Rights Division, alleges that BAT’s marketing of its VELO nicotine pouches, a smokeless product containing nicotine, flavouring and plant-based fibres, unlawfully targets young Kenyans through campus-linked promoter schemes, branded venue activations, and the retail sale of individual pouches at between KSh30 and KSh40 apiece.
Ms Anemba alleges that the campaigns coincided deliberately with university vacation periods, and states that she personally documented promoters, branded vehicles and retail displays as evidence. Her lawyer, Allan Mulama, characterises the conduct as amounting to ground activation campaigns, commission-based promoter schemes, branded venue infiltration and coordinated retail sale of individual VELO pouches, allegedly in breach of Sections 18, 19, 22, 23, 25, 26 and 30 of the Tobacco Control Act, as well as Articles 43(1)(a), 46, 53 and 55 of the Constitution.
The suit seeks a combined KSh4.5 billion in exposure: KSh1.5 billion earmarked for a public health fund covering tobacco cessation and nicotine-addiction treatment, and a further KSh3 billion in exemplary and punitive damages. The petitioner’s filings peg the punitive figure against BAT’s reported VELO revenue projections, said to represent 15 to 25 per cent of a KSh23.2 billion revenue base, and what the petition describes as a three-fold profit margin on nicotine pouches.
Beyond the headline figure, the petitioner wants BAT to deposit KSh500 million as security pending determination of the case, plus a further KSh10 million as security for costs, sums that, if granted even as interim orders, would tie up company cash well ahead of any final judgment. Should the court grant it, a mandatory order compelling BAT to recall and repackage all VELO stock within 30 days would also carry direct commercial consequences for a product line the company has been actively expanding since shifting to imported nicotine pouches last year.
What distinguishes this petition from a straightforward consumer-protection dispute is its second target: the state itself. The petition names the Tobacco Control Board, the Cabinet Secretary for Health, the Director of Public Prosecutions and the Attorney General as respondents, and asks the court to declare that they have failed their constitutional obligation under Article 21(1), and Kenya’s obligations under Article 13 of the WHO Framework Convention on Tobacco Control, to enforce existing tobacco laws.
The petitioner is asking the court to order the Tobacco Control Board to conduct a comprehensive audit of BAT’s marketing, distributor and retailer incentive structures within 60 days, with the court retaining supervisory jurisdiction over compliance, and separately for the DPP to investigate and prosecute BAT, its directors and its promoters. If granted, this would represent a rare instance of a Kenyan court directly compelling prosecutorial action against a listed multinational, rather than merely awarding damages.
Justice Gregory Mutai directed that the petition be served on all respondents within three working days, with fourteen days allowed for responses ahead of a compliance mention on 8th October. That timeline gives BAT Kenya, the Tobacco Control Board and the DPP’s office a narrow window to set out their position before the matter is substantively heard.
For a market that has watched BAT Kenya pivot hard toward nicotine pouches as cigarette volumes decline, the case is as much a test of regulatory will as of corporate conduct. Whether the courts grant the requested interim orders halting VELO promotion , before the substantive petition is even heard , will be the first signal of how seriously the judiciary is prepared to intervene in a sector where enforcement has historically lagged behind the law on paper.
