The High Court has lifted Kenya’s ban on shisha, declaring the continued enforcement of the prohibition unlawful and unconstitutional.
Justice Bahati Mwamuye, delivering the judgement on Tuesday, found that the Public Health (Control of Shisha Smoking) Rules, 2017, had ceased to have effect after the government failed to regularise them within the period directed by an earlier court ruling.
"The Public Health Control of Shisha Smoking Rules 2017, Legal Notice No. 292 of 2017, ceased to have effect upon the expiry of nine months from 26 July 2018," the judge observed.
Then, Justice Roselyne Aburili had given the government nine months to regularise the rules after finding procedural defects in their enactment.
During that period, the regulations were allowed to remain in force to give the Health Cabinet Secretary an opportunity to correct the defects.
The notice had effectively imposed a blanket ban on shisha-related activities in Kenya, prohibiting the importation, manufacture, sale, offer for sale, use, advertising, promotion, facilitation and distribution of shisha.
However, the Novel Tobacco Products Association moved to court challenging the continued enforcement of the shisha ban and subsequent government directives targeting its members.
In his findings, Justice Mwamuye held that the association had the legal standing to institute the petition on behalf of its members and that the case had not been filed after an unreasonable delay.
The judge said the 2017 rules ceased to operate nine months after July 26, 2018, when the High Court issued its judgement in the separate case concerning the regulations.
The failure by the State to regularise the rules within the stipulated period meant they could no longer be relied upon to enforce the shisha ban, the court found.
Justice Mwamuye consequently declared that the continued enforcement of the ban, including through government press releases and directives issued in 2025, was unlawful.
The court specifically faulted a February 3, 2025 press release declaring that the shisha ban remained in force, as well as an April 14, 2025 announcement concerning a crackdown on illegal Shisha outlets in Nairobi.
The judge declared both notices unlawful and unconstitutional.
The court further found that the continued enforcement of the ban violated constitutional rights guaranteed to members of the petitioning association under Articles 27, 40, 47 and 50(2)(n) of the Constitution.
"A conservatory order be and is hereby issued restraining the first, second, third and fourth respondents, their agents and employees from enforcing the unlawful notices issued on 3 February 2025 and 14 April 2025 against the members of the association," the judge ruled.
Justice Mwamuye also declared that the consumption of tobacco products could not be outlawed through subsidiary legislation that failed to comply with the Statutory Instruments Act, 2013.
The ruling further addressed the treatment of different tobacco products, with the court declaring that preferential treatment in the consumption of some tobacco products was unconstitutional as currently framed because it contravened Article 27 of the Constitution.
The decision effectively bars authorities from relying on the 2017 rules and the subsequent notices to continue enforcing the shisha prohibition against the affected traders.
