On July 15, 2026, the High Court at Milimani handed down its decision in Ras Tafari Society of Kenya & another v Attorney General & 2 others (HCCHRPET/E175/2021). The Petitioners sought a constitutional exemption under the Narcotic Drugs and Psychotropic Substances (Control) Act, arguing that the absolute ban on cannabis violates their freedom of religion, privacy, and equality by criminalizing a sacred sacrament.
Justice Bahati Mwamuye ultimately dismissed the petition in its entirety. Beyond the headlines, however, the judgment offers an excellent masterclass in constitutional litigation strategy, evidentiary pitfalls, and the delicate line between judicial restraint and statutory reform.
The Exhaustion Doctrine Striking Again
Before getting into the constitutional merits, the court took issue with procedural strategy. Under Sections 16 and 84 of the Narcotic Drugs Act, there is an administrative procedure for applying for licenses and regulatory exemptions.
The Petitioners had never formally submitted a licensing application or received a formal refusal before heading straight to constitutional court. Reaffirming the Doctrine of Exhaustion, Justice Mwamuye noted that constitutional litigation cannot be used as a shortcut to bypass established administrative machinery. If a statutory path exists, a litigant must walk it first.
When Witness Testimony Undermines the Brief
For a freedom of religion claim under Article 32 to succeed against a law of general application, the petitioner must demonstrate that the restricted practice is an essential and indispensable tenet of their faith not merely a preference.
This is where the case unraveled on the facts. During cross-examination, the Petitioners’ own witnesses admitted that Rastafari reasoning sessions could take place without cannabis and that several adherents do not use the plant at all. Because the testimony showed that practicing the faith without cannabis was entirely possible, the court found that the law did not force believers into an unavoidable choice between their faith and the legal code. It serves as a reminder for litigators: a theory of the case is only as strong as what your witnesses say under cross-examination.
Misinterpreting Precedent: Why South Africa’s Prince Decision Didn’t Apply
The Petitioners heavily relied on South Africa’s landmark Prince rulings, which famously decriminalized personal cannabis use. However, the High Court drew a clean analytical line between the two cases:
The South African case was decided primarily on the Right to Privacy for personal, home consumption by adults.
The Kenyan petition was grounded in Freedom of Religion, seeking a tailored, community-wide faith exemption.
Because the relief sought in Nairobi went far beyond personal privacy and touched on public health and enforcement exemptions, the court held that the statutory limitation under Article 24 was reasonable and justifiable.
“Legalize It”: Judicial Obiter and the elephant in the Room
What makes this judgment truly memorable is its conclusion (paras 75–81). In a rare moment of candid judicial commentary, Justice Mwamuye quoted Peter Tosh’s 1976 reggae anthem “Legalize It” to highlight how ubiquitous cannabis consumption has become in modern Kenyan society.
Writing in obiter dicta, the judge remarked that Kenya cannot forever “bury its head in the sand like an ostrich” regarding drug policy. He openly questioned whether diverting scarce prosecutorial and police resources toward arresting individuals for minor possession makes sense when serious crimes demand attention. While maintaining that changing the law is Parliament’s job, the court effectively invited the nation to have an honest, unvarnished conversation on reform.