Court certifies case against ban on muguka as urgent
The High Court yesterday certified as urgent a petition seeking to stop further implementation of muguka ban in Mombasa, Kilifi, Taita Taveta counties.
Justice Olga Sewe of Mombasa High Court found the case by two activists Peter Agoro and Micheal Makarina challenging ban on muguka to be urgent and needs to be heard expeditiously and fixed it on Friday, May 31,2024.
“ Upon considering the application date May 27,2024 together with it’s supporting affidavit and the documents annex thereto it is hereby ordered that the application is certified urgent and application to be served forwith,” ordered Justice Sewe.
The judge ordered Mombasa Governor Abdulswamad Nassir, Kilifi Governor Gideon Mung’aro and Taita Taveta County Governor Andrew Mwadime to file their responses to the lawsuit against them within three days ahead of the hearing of May 31,2024.
Certificate of urgency
The activists had moved to court challenging the recent order to ban the sale, supply, and consumption of the stimulant drug popularly known as muguka by Mombasa, Kilifi and Taita Taveta Counties.
Under a certificate of urgency, Agoro and Makarina urged the Mombasa Constitutional and Human Rights Court to issue conservatory orders suspending the three counties’ executive order 1 of 2024 that bans entry, transportation, trade, and consumption of Muguka arguing it violates sections of the constitution.
“We also seek an injunction order to be issued restraining the effect and or implementation of the Mombasa, Kilifi, and Taita Taveta counties Executive Order 1 of 2014,” Agoro and Makarina said in their suit.
While seeking the court intervention, the two activists stated the three county bosses led Governor Gideon Mung’aro did not conduct public participation before banning Muguka.
The two petitioners argue that the ban on Muguka by the three counties is unconstitutional, illegal, and unlawful as it underscores the complex interplay between public health concerns and economic dependencies in Kenya.
Legitimate crops
“ Despite Mombasa, Kilifi, and Taita Taveta counties having legitimate constitutional mandates to guarantee the safety of their citizens, they ought to have taken the legal procedures before undertaking the ban,” the petitioners state.
According to Agoro and Makarina the mandate of banning a product or service protected through an act of parliament is the sole power of the national government.
“The county governments cannot choose to regulate a product or service by banning it altogether,” they contend.
They argue that according to Kenya laws, only Parliament through the National Assembly and Senate can declare a substance narcotic or psychotropic through legislation.
“National Agency for the Campaign Against Drug Abuse (NACADA) has not declared Muguka a narcotic nor banned it. The crop(Miraa0 Regulations 2021 recognises both Miraa and Muguka as legitimate crops in Kenya,” the duo states in their court papers.
The petitioners also seek several reliefs including a declaration that the Mombasa, Kilifi, and Taita Taveta counties’ Executive Order 1 of 2024 is an illegality, irregularity, unconstitutional, null, and void.
The lawsuit comes Mombasa Governor Abdulswamad Nassir issued an order completely banning the sale and use of muguka and its products in the county. The following day, Kilifi Governor Mung’aro also issued an executive order on Friday to prohibit the sale, transportation, and consumption of stimulant in the county and on Sunday Taita Taveta County Governor Andrew Mwadime has also implemented a similar ban.
