Court Overturns Shisha Ban In Kenya

A recent ruling in Mombasa has overturned the ban on shisha in Kenya, with the court declaring it unconstitutional.

This decision led to the release of 48 individuals who had been arrested and charged for selling and smoking shisha in January 2024.

Senior Principal Magistrate Joe Mkutu, presiding at the Shanzu Law Courts, emphasized that there was “no valid or lawful ban” on the use, manufacture, sale, or offer for sale of shisha in the country.

The magistrate highlighted the failure of the Cabinet Secretary for Health to adhere to a 2018 High Court directive.

This directive instructed the CS for Health to regularize the Public Health (Control of Shisha) smoking rules of 2017 by submitting them to Parliament for approval.

“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.”

Magistrate Mkutu underlined that the ban, imposed by then Health CS Cleopa Mailu in December 2018 through a gazette notice, lacked proper procedural adherence.

The Health Minister was given a nine-month window to regularize the ban, including presenting it to Parliament, as per the 2018 ruling.

However, this requirement was never fulfilled. Consequently, according to Magistrate Mkutu, the ban lost its validity after the lapse of the nine-month period outlined by Justice Aburili.

“The 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.”

Furthermore, the court emphasized that the offenses the accused were charged with did not exist under the rules gazetted in 2017 when the alleged offenses occurred in January 2024.

“…I have cited above, the respective offenses 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 ordered the release of the 48 accused individuals, unless they were lawfully detained for other reasons.