Shisha Ban Lifted in Kenya

The High Court has lifted the ban on shisha, ruling that continued enforcement of the prohibition is unlawful and unconstitutional.

In his judgment, Justice Bahati Mwamuye ruled that the Public Health (Control of Shisha Smoking) Rules, 2017 ceased to have legal effect after the government failed to regularise them within the nine-month period granted by the court in 2018.

The judge found that authorities could no longer rely on the expired regulations to enforce the ban, and declared unlawful a February 3, 2025 press release and an April 14, 2025 directive announcing a crackdown on shisha outlets.

Justice Mwamuye also held that continued enforcement of the ban violated the petitioners' constitutional rights, and barred the government from enforcing the expired rules and subsequent directives against members of the Novel Tobacco Products Association.

"A conservatory order be and is hereby issued restraining the first, second, third and fourth respondents, their agents and employees from enforcing the unlawful notices issued on 3 February 2025 and 14 April 2025 against the members of the association," the judge ruled.

Justice Mwamuye also declared that the consumption of tobacco products could not be outlawed through subsidiary legislation that failed to comply with the Statutory Instruments Act, 2013.

The ruling further addressed the treatment of different tobacco products, with the court declaring that preferential treatment in the consumption of some tobacco products was unconstitutional as currently framed because it contravened Article 27 of the Constitution.

The decision effectively bars authorities from relying on the 2017 rules and the subsequent notices to continue enforcing the shisha prohibition against the affected traders.