High Court Rules New Tobacco Law on Packaging, Labelling and Disclosure Does Not Violate Intellectual Property Rights

British American Tobacco Kenya

Previously, this blogger reported here that the High Court had suspended the coming into force of the Tobacco Control Regulations 2014 made by the Cabinet Secretary for Health scheduled to take effect on 1st June 2015. Recently in the case of British American Tobacco Kenya Ltd v Cabinet Secretary for the Ministry of Health & 4 others [2016] eKLR, Lady Justice Mumbi Ngugi (known to many readers for her landmark decision on anti-counterfeit law and access to medicines here) delivered a judgment at the High Court dismissing claims by ‘Big Tobacco’ that their constitutional rights including intellectual property (IP) rights are being violated by the new Tobacco Regulations.

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High Court Suspends New Tobacco Packaging Regulations: Ruling in British American Tobacco Kenya Ltd v. Cabinet Secretary for Health & 2 Ors

British American Tobacco Kenya

Previously, this blogger discussed here the Tobacco Control Regulations 2014 made by the Cabinet Secretary for Health published under Legal Notice No. 169 of 2014 in the Kenya Gazette Supplement 161, Legislative Supplement No. 156 of 2014 and scheduled to take effect on 1st June 2015. In a recent development, the High Court has delivered a ruling in the case of British American Tobacco Kenya Ltd v Cabinet Secretary for the Ministry of Health & 2 others [2015] eKLR ordering that the implementation of these Regulations be temporarily suspended.

British American Tobacco (BAT), the Petitioner, moved the Constitutional and Human Rights Division of the High Court under certificate of urgency for various conservatory orders staying the coming into force and implementation and/or operation of the Tobacco Control Regulations 2014. Among BAT’s list of grounds for seeking the conservatory orders, there was a claim that the implementation of certain requirements in the Regulations would result in an infringement of intellectual property (IP) rights held by BAT.

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The Rise of Constitutional Intellectual Property in Kenya

In a recent judgment in the case of Patricia Asero Ochieng, Maurine Atieno and Joseph Munyi vs Republic H.C.C.C. Petition No. 409 of 2009 handed down by Lady Justice Mumbi Ngugi (also known as “Kenyan Jurist” in blogging circles), the Constitutional Division of the High Court held that one of Kenya’s intellectual property laws namely the Anti Counterfeit Act was unconstitutional.

The full text of the judgment is available here.

At paragraph 87 of the judgment, the court’s ruling on the unconstitutionality of this IP act reads as follows:

Sections 2, 32 and 34 of the Anti Counterfeit Act threaten to violate the right to life of the petitioners as protected by Article 26 (1), the right to human dignity guaranteed under Article 28 and the right to the highest attainable standard of health guaranteed under Article 43 (1) and the court hereby grants the declarations sought by as follows:

(a) The fundamental right to life, human dignity and health as protected and envisaged by Articles 26(1), 28 and 43(1) of the Constitution encompasses access to affordable and essential drugs and medicines including generic drugs and medicines.

(b) In so far as the Anti Counterfeit Act, 2008 severely limits or threatens to limit access to affordable and essential drugs and medicines including generic medicines for HIV and AIDS, it infringes on the petitioners’ right to life, human dignity and health guaranteed under Articles 26(1), 28 and 43(1) of the Constitution.

(c) Enforcement of the Anti Counterfeit Act, 2008 in so far as it affects access to affordable and essential drugs and medication particularly generic drugs is a breach of the petitioners’ right to life, human dignity and health guaranteed under the Constitution.

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