Getting There Honestly, Then Overreaching: A Balanced Read of the Kenyan High Court’s Rastafari Cannabis Judgement
Issue 009 — Special Edition
On 15th July 2026, the Kenyan High Court sitting at Milimani [“the Court”] (Mwamuye, J.) dismissed the constitutional petition brought by the Ras Tafari Society of Kenya and Mwendwa Wambua seeking a religious exemption from the cannabis provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994. This judgement is already highlighted by The Star and Kenyans.co.ke. It is a judgment that gets more right than a quick perusal suggests, and gets it wrong in a way that a first skim also misses. This is worth taking seriously because both the credit and the blame are easy to overstate in either direction. I want to give it its due before I take it apart in a way that matters for advocates.
I start with what the Court got right. It did not, unlike some petitions arriving under a similar label, get waved through on the strength of the word “religion.” At [49] the Court accepts Rastafari as a religion entitled to Article 32 protection, and does so on solid ground, which I find consistent with JWM (alias P) v Board of Management [particulars withheld] High School & 2 others [2019] KEHC 10897 (KLR), where Mwita J held it “no longer contestable” that Rastafari qualifies for constitutional protection in the dreadlocks-in-school context. That’s the correct starting point insofar as settled law is concerned, and the Court doesn’t hedge on it. Equally, the judgment resists the temptation to mischaracterise the claim as a bid for blanket decriminalisation; instead, it takes the Petitioners at their word that the relief sought was narrower: sacramental use in private homes and designated tabernacles [7, 21]. A lazier judgment would’ve just gone after the easy target instead. This one does well to directly engage the narrower ask by the petitioners.
The Court also ran a trial. Three witnesses gave evidence, were cross-examined and re-examined [11]; the judgment’s findings on inconsistency in the testimony [50–56] are grounded in a transcript, not asserted from the bench. Whatever one thinks of the conclusion drawn from that inconsistency, the process that produced it was procedurally sound. I note that the court held a full hearing, not a summary dismissal. And the closing reflection, Peter Tosh lyrics and matatu livery included [76–78], however unusual because before them the court ruled that it lacked jurisdiction, is a genuine strength rather than a stylistic showboating. A court that dismisses a petition and then candidly tells the country the underlying policy question deserves a national conversation independent of litigation is doing something judges rarely do: naming the limits of what adjudication can fix, without pretending the limits don’t exist.
I now get to the part that undoes some of that credit. The Court’s holding that the Petition is premature for want of exhaustion [47] is, on its own terms, a complete disposal, nothing else needed deciding after this paragraph. And yet the judgment continues for a further 27 paragraphs [48–74] fully adjudicating Articles 27, 28, 31, 32, 36, and Article 24, as if it had jurisdiction all along. A court that has just held it lacks jurisdiction cannot then bind anyone on the merits it says it can’t reach. It is simple: everything past [47] is obiter by the judgment’s own reasoning and lack of jurisdiction, however confidently it’s written. That’s not a small tension; it’s the same concern I’ve highlighted before in MLR Issue 008, analysing Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR): dispose on threshold grounds, then write the merits ruling anyway, as though holding two positions at once.
The ruling on the exhaustion doctrine itself doesn’t fully earn its confidence. It rests on Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others [2023] KESC 113 (KLR), quoted at [40] for the rule that exhaustion yields where the alternative mechanism is inadequate, tested case-by-case. As I argued in my analysis of Abidha Nicholus in January 2025, what the citation omits is that Nicholus applied that exact test and came out against exhaustion. In Nicholus, the Supreme Court’s nuanced approach to exhaustion found the EPRA/NEMA route inadequate for a constitutional claim and sent the matter back to the ELC. The Rastafari judgment now borrows the phrase without doing the applicability the phrase demands: it never asks whether a licensing board built under s.16 to authorise commercial “importation, exportation, diversion, sale, manufacture, production, or distribution” of narcotics [36] is fit to process an individual’s claim to private sacramental possession, an entirely different angle of analysis from the industrial licences the Board exists to grant. That gap matters more here than it would in an ordinary regulatory dispute, because criminal liability is what is at stake for the Petitioners.
The merits reasoning, for its part, is not balanced in the way it handles the evidence from the two sides. The Court holds the Petitioners to a higher standard on centrality: inconsistency among their own witnesses on whether cannabis use is doctrinally mandatory is treated as effectively fatal [50–56], while accepting NACADA’s unproven prevalence and dependency figures [67–69]. All this happens without asking why an affidavit containing averments, rather than the underlying survey data, should carry more evidentiary weight than sworn oral testimony tested under cross-examination. The Petitioners’ own submission that NACADA filed no primary data [19] goes unanswered on its own terms. A court demanding rigor from one side while accepting assertion from the other isn’t obviously balancing the scales that Article 24(3) puts in its hands.
And the comparative jurisdictional analysis focuses more on authority that doesn’t agree with itself. Employment Division v Smith, 494 U.S. 872 (1990), which ruled no case-by-case exemptions for neutral laws, is cited at [58–59] together with Gonzales v O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006), at [20], whose central holding was that the state must show specifically why a narrow exemption can’t be granted. Gonzales exists, by its own account, because Congress passed RFRA to legislatively overturn Smith. Citing both as if they point in the same direction perceives a resolved American disagreement as a lead to a solution rather than a history. I have also cross-checked and the Prince citations have a similar problem: what the judgment calls “Prince 1” at [16] is actually the second Constitutional Court judgment in that litigation, Prince v President of the Law Society of the Cape of Good Hope [2002] ZACC 1; the real first, Prince v President of the Law Society of the Cape of Good Hope and Others (CCT36/00) [2000] ZACC 28, isn’t cited at all. Effectively, what the court calls “Prince 2” at [17] is an unrelated case filed by different litigants fifteen years later on a privacy theory. And the exhaustion doctrine’s anchor citation at [35], referring to “Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others” doesn’t match Kenya Laws available record, which lists the case as Muthinja, Geoffrey & Robert Banda Ngombe v Samuel Muguna Henry & 1750 others, [2015] KECA 304 (KLR). I surmise that this is an error the judgment draws from years of prior misquotation rather than originates, but one that still sends anyone searching Kenya Law by the name given here to an empty results page.
Considered from all angles, this is a judgment that cumulatively does the harder, more honest thing at the level of process, including allowing for full trial and directly engaging the narrower relief sought. Crucially, the court, in an unusually frank language, diagnoses where the real solution lies. But its undoing is evident in how it then undermines its own authority at the level of reasoning, by writing a merits ruling it said it had no jurisdiction to write, on a citation base that doesn’t hold up to a citator check and analytical rigour. The part advocates will want to rely on is the part least availed. The part best articulated, which deals with the recognition of Rastafari as a protected faith, and the closing call for a legislative intervention was never really in doubt, and didn’t need twenty-five pages to say.
©Gody Mwango (Advocate). The author practises at the intersection of constitutional, human rights & judicial review law.