BREAKING: Court Rules Ban on Shisha Smoking in Kenya Unconstitutional

A Mombasa court has declared the ban on shisha in the country as unlawful, setting free 48 persons who had been arrested and charged for selling and smoking shisha in January 2024.

Sitting at the Shanzu Law Courts in Mombasa, Senior Principal Magistrate Joe Mkutu ruled on Thursday that there is “no valid or lawful ban” on the use, manufacture, sale or offer for sale of shisha in the country.

In his ruling, Magistrate Mkutu noted that the Cabinet Secretary for Health failed to comply with a 2018 High Court ruling that directed the CS for Health to regularize the Public Health (Control of Shisha) smoking rules of 2017 by forwarding them to Parliament for approval.

In the 2018 ruling, Justice Roselyn Aburili found that the shisha ban imposed by then Health CS Cleopa Mailu through a gazette notice dated 28th December 2018 was irregular but allowed it to remain in force, giving the Health minister a period of nine months to regularise the ban by following the procedural requirements that included consideration of the ban by Parliament.

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This requirement has never been met, hence according to Magistrate Mkutu the ban ceased to be operational following the lapse of the nine-month period issued by Justice Aburili.

“It is not in dispute that the High Court reached a finding that the Cabinet Secretary, upon issuing the legal notice banning the use, manufacture and sale of shisha did not comply with the procedural requirements.”

“With profound respect, I drastically disagree with the prosecution, particularly on the view that the shisha ban remains in force even after non-compliance by the Cabinet Secretary,” ruled the Magistrate.

The Senior Principal Magistrate went on to declare that there was no valid shisha ban under the rules gazetted in 2017 at the time the accused committed the alleged offence on January 14, 2024.

“…I have cited above, the respective offences that the accused were charged with did not exist and conviction cannot arise therefrom,” added the 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.”

Following the ruling, Magistrate Mkutu directed that the 48 accused persons in the four consolidated files be set free unless otherwise unlawfully detained.

—Source: RMS