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Kenya’s Sh4.5bn VELO lawsuit tests whether its tobacco law covers nicotine pouches

BAT Kenya faces a Sh4.5 billion constitutional petition over how it marketed VELO nicotine pouches, and has asked the High Court to strike it out. The case is the first real test of whether Kenya’s cigarette-era Tobacco Control Act can reach a smokeless pouch.

PouchDaily Desk·

BAT Kenya launched its VELO nicotine pouches in June 2025 after finally getting regulatory clearance. Just over a year later, a 23-year-old petitioner is asking the High Court to make the company pay Sh4.5 billion for how it put those pouches in front of consumers — and BAT is now trying to have the case thrown out before it even answers the allegations.

It is the first major legal test of whether Kenya’s Tobacco Control Act, a law written around combustible cigarettes, can actually reach a smokeless, tobacco-free nicotine pouch. The answer will matter well beyond Kenya.

What happened

On 2 August 2026, Vivian Anemba, 23, filed a constitutional petition at the Constitutional and Human Rights Division of the High Court in Nairobi. The respondents are BAT Kenya, the Tobacco Control Board, the Health Cabinet Secretary, the Director of Public Prosecutions, and the Attorney-General.

The petition alleges that BAT unlawfully promoted VELO through ground activations, entertainment events, peer promoters, and the sale of individual pouches — conduct it says breaches the Tobacco Control Act’s prohibitions on tobacco promotion, lifestyle advertising, promotional inducements, and selling below the legal minimum quantity.

The specific claims:

  • Sh1.5 billion for a public health fund — compensation for damage to public health, tobacco cessation, public health education, and treatment of nicotine addiction among young people.
  • Sh3 billion in punitive damages.
  • A recall and repackaging of VELO products.
  • Sh500 million security pending determination, and Sh10 million security for costs.
  • Orders compelling the Tobacco Control Board to audit BAT’s marketing, and the DPP to investigate and prosecute BAT, its directors, officers, and promoters.

According to the petition, BAT marketed VELO at entertainment venues in Syokimau in June and July 2026, used university students as peer promoters to recruit young consumers, deployed branded vehicles, and sold individual nicotine pouches for Sh30 to Sh40 each. Justice Gregory Mutai directed the petitioner to serve the respondents within three working days, with 14 days to respond.

BAT’s reply came on 13 August 2026. The company asked the High Court to strike out both the petition and the interim application, saying the petitioner had bypassed the remedies built into the Tobacco Control Act itself.

BAT’s core argument is procedural: under the doctrine of exhaustion of remedies and the doctrine of constitutional avoidance, the court should not hear a constitutional claim until the statutory process has run. It points to:

  • Section 7(2), which levies a 2% “solatium” contribution on licensed manufacturers and importers, paid into the national Tobacco Control Fund. BAT argues this compensatory framework is the Act’s chosen remedy for tobacco-related harm — not a Sh4.5bn private damages claim.
  • Section 55, which makes offences under the Act cognisable, meaning police can arrest alleged offenders without a warrant. BAT says the Act’s own enforcement route should operate first.

BAT calls the petition an “improper invitation to the High Court to disregard the statutory process.” The matter returns to court on 8 October 2026 for compliance and directions.

Why it matters

The legal fight is really about classification. VELO is smokeless, tobacco-free, and non-combustible — users tuck a pouch of nicotine, flavourings, and plant fibres between the upper lip and gum. Kenya’s Tobacco Control Act was written when “tobacco products” meant cigarettes, cigars, and smokeless tobacco. If the Act applies cleanly to a tobacco-free nicotine pouch, BAT’s marketing playbook — branded activations, peer promoters, single-pouch sales — is squarely in its sights. If it does not, the petition’s core claims collapse, and Kenya has a regulatory gap that a fast-growing nicotine category is walking straight through.

For BAT Kenya, the stakes are commercial as well as legal. CEO Sidney Wafula told Business Daily in July 2026 that nicotine pouches currently account for about 1% of revenue but are targeted to reach 15–20% in the medium term as the company pivots from combustible cigarettes. BAT had originally sold pouches as Lyft in 2019, withdrew them in 2020 when the state classified them as a tobacco product, and even sold its Nairobi pouch-manufacturing machinery in 2024 after five idle years — opting to rely on imports once clearance came through. A court-ordered recall and marketing freeze would hit that growth plan directly.

The case also exposes a tension regulators across Africa are starting to face. As Sharp Daily noted on 14 August, Kenya has “extensive controls covering tobacco advertising, promotion, packaging and public consumption” — but those rules were designed around cigarettes. New nicotine products that do not involve combustion “fall between established regulatory categories,” creating uncertainty for businesses, regulators, and consumers alike. A fragmented, product-by-product approach — where the law only catches up after a dispute reaches the High Court — is exactly what this lawsuit represents.

What’s next

The 8 October hearing is procedural: compliance and directions. The substantive fight is whether the court accepts BAT’s exhaustion-of-remedies argument and strikes the petition, or lets the constitutional claims proceed to a full hearing.

If the case survives BAT’s strike-out application, the next phase is the evidence on the Syokimau activations — the branded vehicles, the peer promoters, the Sh30–Sh40 single-pouch sales. That is where the Tobacco Control Act’s advertising, promotion, and minimum-quantity provisions get stress-tested against a modern nicotine pouch.

The bigger signal is for African markets watching Kenya. If a smokeless, tobacco-free pouch can be reached by a cigarette-era statute — and a Sh4.5bn damages claim can survive a motion to strike — every pouch brand selling into the continent has to price in a lot more legal risk than it currently does. If it cannot, regulators will be under pressure to write a new, product-neutral nicotine law before the next dispute reaches the courts.

For now, VELO stays on the shelf. The question is whether the law that governs that shelf was built for it.

SOURCES:

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