Trade secrets in Kenya: A curious case of compulsory acquisition in Kenya’s tobacco industry

Abstract

This research paper endeavours to establish that trade secrets are ‘property’ under the auspices of Article 40 of the Constitution of Kenya, 2010, whose public disclosure without compensation amounts to unlawful and unconstitutional compulsory acquisition and thus challenge the constitutionality of the Tobacco Control Regulations, 2014. State powers of compulsory acquisition must be carried out on a balance of rights. Hence, the power is subject to limitation in that the deprivation of property must be for a public purpose and compensation must be paid to the person to whom property is deprived. The Constitution classifies intellectual property as ‘property’ and several types of intellectual property are recognised under Kenya’s property law regime with the exception of trade secrets, which are protected under English common law as confidential information. This paper examines whether trade secrets have a place in the Kenyan property regime and delves into a discussion on their compulsory acquisition. The paper, then, analyses the determination in British American Tobacco Kenya Ltd v Cabinet Secretary for the Ministry of Health & 4 others [2016] eKLR on the constitutionality of the Tobacco Control Regulations, and thereafter, conducts a comparative study into the treatment of trade secrets in the tobacco industry in Kenya vis-à-vis in the United States of America. In conclusion, trade secrets are indeed property rights and the Tobacco Control Regulations are unconstitutional to the extent that they mandate the public disclosure of tobacco trade secrets without compensation to tobacco companies. To this end, Regulation 42 should be declared void and State agencies should be mandated to maintain the secrecy of trade secrets disclosed to them pursuant to Regulation 12.