The high court has quashed the Nairobi City County Betting, Lotteries and Gaming Act 2021 ruling that there was no public participation before it was enacted.
In a judgement delivered on Tuesday this week, Justice Antony Mrima declared the said act is unconstitutional, null and void, saying it has no legal effect.
“A Declaration hereby issues that the Nairobi City County Betting, Lotteries and Gaming Act, 2021 is in violation of Articles 10, 174(c), 196 and 201(a) and Section 87 of the County Governments Act for want of reasonable public participation and stakeholder consultations,” the judgement reads.
In the case, The Association of Gaming Operators of Kenya had moved to court in 2021 when the act was implemented to challenge the decision by the county to supervise them.
The court ruled that there was no meaningful public participation towards the enactment of the impugned Act.
Judge Mrima said even though the county said they had advertised through the Star Newspaper, that was not sufficient public reach by using only one paper to advertise.
The court said it is aware that there has been serious public outcry on the effects of betting in our country, so the impugned Act, therefore, presented an opportunity where the public could have aired their proposals over the issue.
“As the impugned Act affected the entire public, there was a need for serious and wider public engagement,” the court said.
The judge further said that in this case, unless one was on the lookout for the advertisement, chances are high that the advertisement could easily pass 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. The level of engagement was too far below the reasonably expected legal bar,” the court ruled.
In the case, the betting Association had argued that prior to the year 2010, betting, casinos and other forms of gambling were regulated by the National Government under the Betting, Lotteries and Gambling Act.
However, with the establishment of Counties, regulation of the gaming industry was split between the National Government and the relevant County within which the gaming activity took place
They argued that whereas the National Government retained the responsibility for licensing of gaming activities, other functions including supervision of casinos, authorization of lotteries and spot checks on betting and other forms of gambling licences were transferred to the County Government of Nairobi through Legal Notice No. 177 of 2013.
They told the court that despite the separation of roles between the National Government and the County Government of Nairobi uncertainty still reigned as to which body was responsible for what function in the gaming industry.
However, the Nairobi country government in their defence had asked the court not to quash the act.
The county argues that based on the potential security threats associated with the lottery, it was necessary to have close supervision, regulation and surveillance in order to forestall terrorism financing and money laundering.
