Shisha ban in Kenya is unconstitutional, Mombasa Court declares.

A Mombasa court has deemed the country's shisha prohibition illegal, freeing 48 people who were arrested and accused with selling and smoking shisha in January 2024.
Senior Principal Magistrate Joe Mkutu, sitting in Mombasa's Shanzu Law Courts, ruled on Thursday that there is "no valid or lawful ban" on the use, manufacture, sale, or offer for sale of shisha in Kenya.

Magistrate Mkutu highlighted in his finding that the Cabinet Secretary for Health failed to comply with a 2018 High Court order directing the CS for Health to regularise the Public Health (Control of Shisha) smoking rules of 2017 by submitting them to Parliament for approval.

 In the 2018 ruling, Justice Roselyn Aburili determined that the shisha ban imposed by then-Health CS Cleopa Mailu via a gazette notice dated December 28, 2018, was irregular but allowed it to remain in force, giving the Health Minister nine months to regularise the ban by following the procedural requirements, which included Parliament's consideration of the ban.

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 This criteria was never met, so according to Magistrate Mkutu, the prohibition expired after the nine-month period imposed by Justice Aburili.

"It is not in dispute that the High Court reached a finding that the Cabinet Secretary, upon issuing the legal notice banning the use, manufacture and sale of shisha did not comply with the procedural requirements."

"With profound respect, I drastically disagree with the prosecution, particularly on the view that the shisha ban remains in force even after non-compliance by the Cabinet Secretary," the judge said.

The Senior Principal Magistrate went on to determine that there was no legal shisha prohibition under the guidelines gazetted in 2017, at the time the accused committed the claimed violation.