The High Court of Kenya has ruled that the longstanding ban on shisha smoking is no longer legally enforceable, delivering a significant reprieve to shisha traders and users across the country.

Justice Bahati Mwamuye delivered the judgment on July 28, 2026, stating that the Public Health (Control of Shisha Smoking) Rules, 2017, had lost legal force after the government failed to regularise the regulations within a court-mandated nine-month period.

Background to the Ruling

The decision traces back to a 2018 ruling by Justice Roselyne Aburili, who found procedural flaws in the enactment of the 2017 shisha regulations. The government was given nine months from July 26, 2018, to rectify these issues, during which the rules remained temporarily valid. However, the state did not meet this deadline, rendering the rules invalid.

As a result, Justice Mwamuye ruled that the continued enforcement of the shisha ban was unlawful and unconstitutional.

Legal Challenges and Court Findings

  • The case was initiated by the Novel Tobacco Products Association, challenging ongoing enforcement actions against its members.
  • The court affirmed the association's legal standing and dismissed claims of undue delay in filing the petition.
  • The ruling highlighted that tobacco consumption regulations must comply with the Statutory Instruments Act, 2013, and cannot be imposed through subsidiary legislation that fails to meet legal standards.
  • The court found that treating tobacco products differently violates constitutional equality provisions under Article 27.

Invalidation of 2025 Government Notices

Justice Mwamuye also declared two government communications from 2025 unlawful:

  • A February 3, 2025, press release asserting the continued validity of the shisha ban.
  • An April 14, 2025, announcement ordering crackdowns on shisha outlets in Nairobi.

The court issued an order preventing authorities from enforcing these notices against members of the association.

Constitutional Rights Violations

The enforcement of the shisha ban was found to infringe on several constitutional rights, including:

  • Equality (Article 27)
  • Property rights (Article 40)
  • Fair administrative action (Article 47)
  • The right to a fair hearing (Article 50(2)(n))

The ruling prohibits reliance on the expired 2017 rules or the 2025 notices to justify further enforcement actions against shisha traders.

This landmark judgment offers relief to shisha users and businesses and sets a precedent on the regulation of tobacco products in Kenya.