Court Overturns Nairobi betting restrictions
The Nairobi City County Betting, Lotteries, and Gaming Act 2021 were thrown out by the high court because there was no public participation before it was enacted.
In a decision issued this week on Tuesday, Justice Antony Mrima declared the act to be unconstitutional, null and void, and without legal effect.
“A Declaration is hereby issued that the Nairobi City County Betting, Lotteries, and Gaming Act, 2021 violates Articles 10, 174(c), 196, and 201(a) of the County Governments Act, as well as Section 87 of the County Governments Act, for lack of reasonable public participation and stakeholder consultations,” the judgment states.
The Association of Gaming Operators of Kenya filed a lawsuit in 2021, when the act went into effect, to challenge the county’s decision to supervise them.
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The court ruled that there was no meaningful public participation in the passage of the challenged Act.
Even though the county claimed to have advertised in the Star Newspaper, Judge Mrima stated that using only one newspaper to advertise provided insufficient public reach.
The court stated that it is aware of the serious public outcry regarding the effects of gambling in our country and that the impugned Act provided an opportunity for the public to air their concerns about the issue.
“Because the contested Act affected the entire public, there was a need for serious and broad public engagement,” the court stated.
The judge went on to say that in this case, unless someone was specifically looking for the advertisement, chances are it went unnoticed.
“The nature of the public engagement undertaken in this matter by way of a single newspaper advertisement was, hence, very superficial and did not, therefore, yield to the expected serious and meaningful engagement.
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“The level of engagement was far below what could reasonably be expected under the law,” the court ruled.
Before 2010, betting, casinos, and other forms of gambling were regulated by the National Government under the Betting, Lotteries, and Gambling Act, according to the betting Association.
However, with the establishment of Counties, gaming industry regulation was divided between the National Government and the relevant County in which the gaming activity took place.
They contended that, while the National Government retained responsibility for gaming activity licensing, other functions such as casino supervision, lotteries authorization, spot checks on betting, and other forms of gambling licenses were transferred to the County Government of Nairobi via Legal Notice No. 177 of 2013.
They testified in court that, despite the separation of roles between the National Government and the County Government of Nairobi, there was still uncertainty about which body was responsible for which function in the gaming industry.
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However, in their defense, the Nairobi county government asked the court not to strike down the act.
The county claims that due to the potential security risks associated with the lottery, close supervision, regulation, and surveillance were required to prevent terrorism financing and money laundering.
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