The Shanzu Law Courts in Mombasa has declared the ban on shisha in Kenya as unconstitutional.
In his ruling on Thursday, March 28, Senior principal Magistrate Joe Mkutu noted that the ban on the use, manufacture and sale of shisha is not valid and/or lawful, consequently releasing 48 individuals who had been arrested for selling and smoking the substance in January 2024.
The court stated that the offences the 48 persons were charged with do not exist under Kenyan laws, because the same rules were not regularised by the Health Cabinet Secretary within 9 months as ordered by the High Court.
In a 2018 ruling, the High Court had directed the CS to regularize the Public Health (control of Shisha smoking) Rules of 2017 by forwarding them to Parliament for approval.
“In the result, guided by the decision of the High Court and pursuant to the doctrine of stare decisi, I reach tyhe finding that there is no valid and/or lawful ban on the use, manufacture, sale, offer for sale of shisha… for the reason that the said rules were not regularised by the Cabinet Secretary within 9 months as ordered and/or directed 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,” Mkutu observed.
”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 added.
The magistrate underscored that then-Health CS Cleopa Mailu, while initiating the shisha ban in a gazette notice dated 28th December 2018, flouted procedural requirements for issuance of such legal notices.
“What clearly emerges is that the Cabinet Secretary… did not demonstrate that he ever intended to place the Gazetted Regulations before Parliament for approval before implementation.”
