Mombasa court declares shisha ban unconstitutional in Kenya

The Shanzu Law Courts in Mombasa have recently made a significant ruling regarding the ban on shisha in Kenya, declaring it unconstitutional. Senior Principal Magistrate Joe Mkutu delivered this decision on Thursday, March 28, highlighting that the prohibition on the use, production, and sale of shisha lacks validity and legality. Consequently, 48 individuals who were apprehended for involvement in selling and consuming shisha in January 2024 have been released.

The court emphasized that the charges brought against the 48 individuals were not supported by Kenyan laws. This is because the regulations governing such actions were not properly formalized by the Health Cabinet Secretary within the specified nine-month period, as directed by a prior High Court order.

In a ruling dating back to 2018, the High Court instructed the Cabinet Secretary to regularize the Public Health (control of Shisha smoking) Rules of 2017 by presenting them to Parliament for approval.

The magistrate, guided by the principles of legal precedent (stare decisis), concluded that the ban on shisha was invalid and unlawful. This was due to the failure of the Health Cabinet Secretary to formalize the regulations within the designated timeframe, rendering them ineffective after nine months from the High Court’s decision.

“I hereby reject all charges in the consolidated cases before me. Consequently, I discharge all the accused individuals involved in these consolidated matters,” stated Mkutu.

Furthermore, the magistrate highlighted procedural irregularities in the actions of the then-Health Cabinet Secretary, Cleopa Mailu, who initiated the shisha ban through a gazette notice dated December 28, 2018. It was found that Mailu did not adhere to the required procedures for issuing such legal notices. Additionally, there was a failure to demonstrate intent to present the Gazetted Regulations for parliamentary approval before their implementation.