British American Tobacco Kenya has asked the High Court to strike out a Sh4.5 billion claim over its VELO nicotine pouches, saying the petitioner bypassed remedies provided under tobacco control law.
The company wants the court to dismiss both the petition and an application that is seeking interim orders before it answers the allegations on their merits.
The legal dispute centres on VELO, the smokeless, tobacco-free pouches containing nicotine, flavourings and plant fibres that users place between the lip and gum.
Vivian Anemba, 23, filed the petition last month against BAT Kenya, the Tobacco Control Board, the Cabinet Secretary for Health, 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 sales of individual pouches, contrary to the Tobacco Control Act.
She seeks Sh1.5 billion for a public health fund and Sh3 billion in punitive damages, besides a recall of VELO products and other orders.
But BAT says it has “good grounds for striking out the petition” because the court should consider the doctrine of exhaustion of remedies and constitutional avoidance.
The company calls the petition an “improper invitation to the High Court to disregard the statutory process of looking into any complaints set out in the Tobacco Control Act”.
BAT says the Act provides mechanisms for dealing with alleged offences and disputes, and those procedures should be used before constitutional litigation.
The company also challenges the damages claim, saying Section 7(2) of the Tobacco Control Act requires licensed cigarette manufacturers or importers to pay a two percent solatium contribution based on the value of tobacco products manufactured or imported. The solatium contribution is a two percent annual levy charged on the value of tobacco products manufactured or imported by licensed companies in Kenya.
Under Kenya’s Tobacco Control Regulations, this compensatory payment feeds into the national Tobacco Control Fund to help pay for public health programmes, cessation support, and damage research.
BAT argues that the provision does not establish the damages sought by Anemba.
Its application says there is no basis for the claim for damages in the petition because the Tobacco Control Act has an elaborate framework for addressing adverse effects of tobacco consumption.
BAT also points to Section 55, saying offences under the law are cognisable offences where a police officer may arrest an alleged offender without a warrant.
The company says the High Court should therefore allow statutory enforcement mechanisms to operate before entertaining the constitutional claims.
The application follows the court’s directions issued on July 25 requiring respondents to file responses and address the application for conservatory orders.
The petition alleges that VELO was promoted in Syokimau in June and July through branded vehicles, product displays and promoters, while individual pouches were sold for Sh30 to Sh40.
The petitioner’s advocates say she photographed the activities and allege that the campaign extended nationwide, including the use of university students as peer promoters.
They say the activities include “ground activation campaigns, commission-based promoter schemes, branded venue infiltration and coordinated retail sale of individual VELO pouches”.
The petition asks the court to stop VELO promotions, order a recall and repackaging, require regulatory audits, and direct investigations and possible prosecution of BAT officials and promoters.
It also seeks Sh500 million as security pending determination, and Sh10 million as security for costs.
The dispute follows BAT Kenya’s earlier entry into nicotine pouches through LYFT, whose sales were halted in 2020 after a regulatory dispute.
BAT Kenya resumed VELO sales in July 2025 after citing regulatory clarity, with the product contributing Sh232 million, or one percent of revenue, in the six months to December 2025.
The company said it expects VELO to contribute 15 percent to 25 percent of total revenue in the medium term, as the company expands its modern oral nicotine category.
BAT Kenya’s 2024 annual report said the company launched VELO in Kenya in 2022 after introducing the category in 2019, but suspended sales at the end of 2023 during an ongoing government regulatory process.
The court case is scheduled for mention on September 1, 2026.
