The High Court of Kenya has overturned the nationwide ban on shisha, ruling that the ongoing enforcement of the prohibition is unconstitutional and unlawful.
Delivering the judgment, Justice Bahati Mwamuye stated that the Public Health (Control of Shisha Smoking) Rules, 2017 lost legal effect after the government failed to regularise them within a nine-month period following an earlier court directive.
Previously, Justice Roselyne Aburili had identified procedural defects in the enactment of the shisha regulations and allowed the government nine months to correct them. However, the government did not act within the stipulated timeframe, causing the rules to lapse.
The 2017 rules had imposed a comprehensive ban on shisha-related activities, including importation, manufacture, sale, use, advertising, and distribution.
The Novel Tobacco Products Association challenged the continued enforcement of the ban and related government directives, prompting the court case.
Key Findings
- The association had legal standing to represent its members in court.
- The case was filed within a reasonable time frame.
- The 2017 shisha regulations ceased to operate nine months after July 26, 2018.
- Government notices issued in 2025 reaffirming the ban and enforcement actions were declared unlawful and unconstitutional.
- Continued enforcement violated constitutional rights under Articles 27, 40, 47, and 50(2)(n).
- Consumption of tobacco products cannot be banned through subsidiary legislation that does not comply with the Statutory Instruments Act, 2013.
- Giving preferential treatment to certain tobacco products was found unconstitutional.
The court issued a conservatory order restraining government agencies from enforcing the unlawful notices issued in February and April 2025 against members of the tobacco association.
This ruling effectively prohibits authorities from relying on the expired 2017 rules or subsequent directives to enforce the shisha ban, impacting traders and users nationwide.
