The High Court has declared that the continued enforcement of Kenya’s shisha smoking ban is unlawful, ruling that the regulations used to enforce the prohibition expired after the government failed to regularise them within the period set by the court.
In a ruling delivered by Justice Bahati Mwamuye on Tuesday, July 28, 2026, the court found that the Public Health (Control of Shisha Smoking) Rules, 2017, had ceased to have effect after the expiry of a nine-month period granted to the government to address legal shortcomings identified in an earlier judgment.
“The Public Health Control of Shisha Smoking Rules 2017, Legal Notice No. 292 of 2017, ceased to have effect upon the expiry of nine months from 26 July 2018,” Justice Bahati said.
The Ministry of Health introduced the shisha ban in 2017 through regulations issued under the Public Health Act. However, in 2018, the court found that the process was flawed due to a lack of public participation and insufficient compliance with legal requirements, including parliamentary oversight.
Rather than immediately invalidate the regulations, the court gave the government nine months to correct the defects and regularise the rules. The government, however, failed to table the regulations before Parliament within the stipulated period, resulting in their expiry.
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Justice Mwamuye further ruled that subsequent enforcement actions, including government notices issued on February 3, 2025, and April 14, 2025, announcing a crackdown on illegal shisha outlets in Nairobi, were unlawful and unconstitutional.
“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 and 14 April 2025 against the members of the association,” the judge ruled.
The court held that the government could not continue enforcing expired regulations and that the directives issued against members of the Novel Tobacco Products Association violated their constitutional rights.
Justice Mwamuye added that tobacco products could not be prohibited through subsidiary legislation that failed to comply with the requirements of the Statutory Instruments Act, 2013.
– By Daisy Achieng
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