The High Court has lifted Kenya’s ban on shisha, ruling that the continued enforcement of the prohibition is unlawful and unconstitutional.
In a judgement delivered on Tuesday, Justice Bahati Mwamuye found that the Public Health (Control of Shisha Smoking) Rules, 2017, no longer applied after the government failed to regularise them within the timeline set by an earlier court order.
The judge observed that 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.”
Background to the earlier court order
Justice Roselyne Aburili had previously ordered the government to regularize the rules within 9 months after identifying procedural defects in how they were enacted. During that period, the regulations remained in place to give the Health Cabinet Secretary time to correct the issues.
The rules 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 to challenge the continued enforcement of the shisha ban and later government directives that targeted its members.
Court finds association had standing to sue
In his findings, Justice Bahati Mwamuye ruled that the association had legal standing to file the petition on behalf of its members and that it did not bring the case after an unreasonable delay. He also held that the 2017 rules stopped operating 9 months after July 26, 2018, when the High Court delivered its decision in the earlier matter involving the regulations.
The court found that because the state failed to regularize the rules within the period it was given, authorities could no longer rely on them to enforce the ban. Justice Mwamuye therefore declared that continuing the prohibition through government press releases and directives issued in 2025 remained unlawful.
2025 notices declared unlawful
The judge singled out a February 3, 2025, press release that stated the shisha ban still applied, as well as an April 14, 2025, announcement that introduced a crackdown on illegal shisha outlets in Nairobi. He declared both notices unlawful and unconstitutional.
Justice Mwamuye further ruled that the continued enforcement of the ban violated constitutional rights guaranteed to the association’s members under Articles 27, 40, 47, and 50(2)(n). He issued a conservatory order restraining the respondents from enforcing the February and April 2025 notices against the association’s members.
“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.
Statutory Instruments Act cited
Justice Mwamuye also ruled that the State could not ban the consumption of tobacco products through subsidiary legislation that failed to comply with the Statutory Instruments Act, 2013.
The judgement addressed how different tobacco products received unequal treatment, with the court declaring that the preferential framework for some products, as currently set out, violates Article 27 of the Constitution.
Overall, the decision bars authorities from relying on the 2017 rules and the subsequent notices to continue enforcing the shisha prohibition against the traders affected by the case.
