The Shanzu Law Courts in Mombasa has declared the ban on the importation, sale and use of shisha as unconstitutional.
According to court documents obtained by Kenyans.co.ke, Senior Principal Magistrate Joe Mkutu explained that the government failed to regularise the Public Health (Control of Shisha Smoking) Rules.
The magistrate referenced a 2018 High Court ruling by Justice Roselyn Aburili which directed former Health Cabinet Secretary Cleopa Mailu to regularise the rules by forwarding them to Parliament for approval.
At the time, Justice Aburili noted that the ban imposed by the Health Ministry was irregular but was to remain in force for nine months until the regulations were approved.
According to Justice Mkutu, the Ministry failed to comply with the directive to date.
"In the result, guided by the decision of the High Court and pursuant to the stare decisis, I reach the finding that there is no valid and or lawful ban for the use, manufacture, sale, offer for sale of shisha under the Public Health (Control of Shisha Smoking) Rules, 2027 for the reason that the said rules were not regularised by the Cabinet Secretary within nine months as ordered and directed by the High Court and therefore ceased to have effect upon the expiry of nine months from the date of the decision of the High Court," the Magistrate directed.
Having arrived at the decision, Magistrate Mkutu ordered 48 suspects who had been arrested for selling shisha to be freed.
"The accused persons in the consolidated matters were charged with offences under the Public Health (Control of Shisha Smoking) Rules, 2017 purportedly committed on January 14, 2024," he ordered.
"There was no valid shisha ban under the said rules at the time and as per the dictates of the Constitution in the Article I have cited above, the respective offences that they were charged with did not exist and no conviction can arise therefrom."
The court orders come amid a crackdown conducted by NACADA and the police on clubs advertising, promoting and distributing shisha.
This is after a directive from Interior CS Kithure Kindiki who banned the sale of the said item on March 6, 2024. He noted that establishments caught selling shisha would be shut down with immediate effect.
"The importation, manufacture, sale, use, advertisement, promotion or distribution of shisha is outlawed in the country, any establishment found in breach of this provision will be shut down with immediate effect," Kindiki ordered.
