The Tobacco Control Act was passed in 2007 accompanied by its fair share of drama. The process was characterized by an intense public debate and lobbying, marked by accusations and feeble denials that lawmakers had been bribed by tobacco manufacturers to reject the Bill or, at best, pass an impotent statute as a public relations exercise.

The alacrity with which the law was initially implemented brought a huge sense of relief to anti-tobacco lobbyists. Smokers were arrested and instantly fined for lighting up on the streets. Specially-designated smoking sheds were built by the city authorities. So dreaded was the new law that tourists planning to visit Kenya at the time would seek legal advice on how to comply with the new law while in in the country.

Judging by the number of men and women (of all social statuses) walking into and huddling in the designated smoking sheds within Nairobi's central business district, it is fair to say that individual smokers have largely complied with the law.

Regrettably, however, the same cannot be said of businesses, especially of the high class variety, which act as if the law was enacted for lesser mortals. In these establishments, the law is honoured more in breach than in observance.

You walk into your favourite restaurant for Sunday brunch with your family comprising, among others, two impressionable teenagers, a toddler who seems to be allergic to everything except food and your 89-year-old asthmatic mother who suffers an uncontrollable coughing fit whenever she inhales any kind of smoke, let alone the toxic smell of tobacco.

You are ushered in by the waitress with the usual plastic smile and led to a reserved table on a beautiful terrace. No sooner have you ordered your drinks than you notice something grossly uncomfortable about your seating area. You see, seated at the next table, a young couple happily puffing away and blowing smoke in your general direction, probably meaning no harm but clearly unaware of the discomfort and annoyance that this is causing you and your family. You try to express your disapproval by casting an ugly glance at them but soon realize that you are on your own. You call the waitress and complain agitatedly. She looks at you helplessly, shrugs her shoulders and tells you that the terrace is a smoking area and the only choice you have is to sit inside the restaurant despite the searing heat of the day. The lawyer in you stirs and you calmly but firmly tell the poor waitress that it is against the law to smoke in a public place and that a restaurant is such a place. She shrugs her shoulders again and suggests that you should probably talk to the management about the law. At this point she asks you to place your orders for food.

The ban on smoking in public places is in line with global trends towards the total eradication of the vice to safeguard the health of non-smokers who, researchers tell us, stand a higher risk of contracting cardiovascular and respiratory diseases than smokers themselves. Broken down to the bare basics, the logic is that "since I did not help you to buy your cigarette, why should I help you in smoking it?"

According to the World Health Organization (WHO) fact sheet of May 2017, tobacco kills about 7 million people annually across the world. Of these, 890,000 die as a result of exposure to second-hand smoke.

Apart from subjecting an innocent non-smoker to an unwelcome pollutant, smoking in public is analogous to a stranger injecting an innocent person with a lethal dose. Public smoking is not only a serious health hazard but a most inconsiderate habit.

Both the Constitution and The Tobacco Control Act guarantee every person the right to a clean and healthy environment and the right to be protected against second-hand smoke. Concomitantly, every person has the duty to observe measures to safeguard the health of non-smokers. The head of the family, for example, is required by law to ensure that children are free from second-hand smoke

Smoking in any public place is expressly prohibited under law. A "public place" is defined as any indoor, enclosed or partially enclosed area, which is open to the public or to which members of the public have access. This includes corridors, lounges, restaurants, hotels, bars and other eating areas.

Smoking is only allowed in designated areas built in the manner prescribed by law. The structure should be a well ventilated room which is separate, enclosed and sealed from floor to the roof, with a door. It must also be a place where non-smokers do not have to enter for any purpose while smoking is taking place.

Clearly, the so-called "outside areas" which most restaurants call smoking zones do not fit the statutory definition of a "designated area" and are therefore a contravention of the law.

The manager of a restaurant or bar is required by law to display clear and prominent notices in both English and Kiswahili that smoking is prohibited as well as the prescribed penalty. Among other technical specifications, the notice should bear the word "WARNING" in capital letters and be placed at the main entrance of the establishment.

The manager is required to ensure that the rights of non-smokers are not infringed by smokers on the premises. The Act empowers the manager to order any person who smokes within the area or immediate vicinity of the entrance to cease smoking or leave the premises. Any manager who fails to observe this provision is liable to a fine of KES150,000 or imprisonment for six months, or both.

Any person subjected to second-hand smoke is entitled to lodge a claim both against the smoker and the manger or business-owner for breach of constitutional rights.

As is often said in Kenya, our problem is not a shortage of laws but their enforcement.

The article was also published in the Business Daily on 6 December, 2017 and you can click here to access the article. It is reproduced with permission of IKM Advocates.

IKM Advocates is a member of the DLA Piper Africa Group, an alliance of leading independent law firms working together in association with DLA Piper across Africa.