High Court declares shisha ban unconstitutional, stops enforcement of 2017 rules

The High Court has declared the continued enforcement of Kenya's shisha ban unlawful, ruling that the regulations used to prohibit the product lost their legal force years ago after the government failed to comply with an earlier court order.

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

Justice Mwamuye held that despite the lapse of the regulations, government agencies continued enforcing the ban without any valid legal foundation, making the actions unconstitutional.

"The Public Health (Control of Shisha Smoking) Rules, 2017 ceased to have legal effect after the lapse of the nine-month period granted by the court for regularisation," the judge ruled.

The court further nullified a February 3, 2025 press statement and an April 14, 2025 directive that announced a nationwide crackdown on shisha outlets, finding that both were anchored on regulations that were no longer in force.

According to the judge, public authorities could not lawfully rely on expired legislation to restrict businesses or prosecute traders.

"The respondents cannot continue enforcing regulations that no longer have legal force. Such enforcement is unlawful and unconstitutional," Justice Mwamuye stated.

The court also found that the continued crackdown violated the constitutional rights of members of the Novel Tobacco Products Association, who had challenged the government's actions.

Consequently, the judge issued orders prohibiting the State from enforcing the expired 2017 regulations, as well as the subsequent directives, against members of the association.

The ruling effectively removes the legal basis that had been used to sustain the shisha ban, unless the government enacts fresh, legally compliant regulations.