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The Shanzu Law Courts in Mombasa has ruled the ban on shisha in Kenya as unconstitutional.
Senior principal Magistrate Joe Mkutu delivered the verdict on Thursday, March 28, stating that the prohibition on the use, production, and sale of shisha lacks validity and lawfulness. Consequently, 48 individuals arrested for selling and smoking shisha in January 2024 were released.
The court clarified that the charges against the 48 individuals were baseless under Kenyan laws because the regulations were not formalized by the Health Cabinet Secretary within the stipulated nine-month period, as instructed by the High Court.
Referring to a 2018 ruling, the High Court had directed the Cabinet Secretary to present the Public Health (control of Shisha smoking) Rules of 2017 to Parliament for approval.
Mkutu emphasized, “There is no valid and/or lawful ban on the use, manufacture, sale, offer for sale of shisha…because the said rules were not regularized by the Cabinet Secretary within 9 months as ordered by the High Court and therefore ceased to have effect upon the expiry of the 9 months from the date of the decision of the High Court.”
“I hereby refuse to admit the charges in all consolidated matters before me. I proceed to discharge all the accused persons in all the respective consolidated matters,” he concluded.
The magistrate highlighted that then-Health CS Cleopa Mailu, when initiating the shisha ban through a gazette notice dated December 28, 2018, did not adhere to procedural requirements for issuing such legal notices.
“It is evident that the Cabinet Secretary…did not demonstrate an intention to present the Gazetted Regulations before Parliament for approval before implementation,” Mkutu noted.
