A judge in Mombasa has overturned the recent government directive to ban the sale and consumption of shisha in the country, deeming it unconstitutional.
Senior Principal Magistrate Joe Mkutu of Shanzu Law Courts pointed out that although the ban was announced, the government failed to formalise the Public Health (Control of Shisha Smoking) Rules as required by the Constitution.
As such, any criminal cases or changes based on these informal regulations cannot be used to prosecute manufacturers, traders, and users of the substance.
Magistrate Mkutu made this statement during the proceedings to release 48 suspects who had been arrested for their involvement in the sale of shisha.
“The accused persons in the consolidated matters were charged with offences under the Public Health (Control of Shisha Smoking) Rules, 2017 purportedly committed on January 14, 2024,” he ordered.
“There was no valid shisha ban under the said rules at the time and as per the dictates of the Constitution in the Article I have cited above, the respective offences that they were charged with did not exist and no conviction can arise therefrom.”
The judge cited a 2018 High Court ruling by Justice Roselyn Aburili, which found that the shisha ban imposed by then Health Cabinet Secretary (CS) Cleopa Mailu through a gazette notice dated December 28, 2018, was irregular.
However, Justice Roselyn Aburili allowed the ban to remain in force, giving the Health CS nine months to formalise it by adhering to constitutional requirements, including parliamentary review.
As regularization was never carried out, Magistrate Mkutu asserted that the ban became unenforceable once the nine-month period set by Justice Aburili expired.
“In the result, guided by the decision of the High Court and pursuant to the stare decisis, I reach the finding that there is no valid and or lawful ban on the use, manufacture, sale, offer for sale of shisha under the Public Health (Control of Shisha Smoking) Rules, 2017,” the judge directed.
This development comes weeks after Interior CS Kithure Kindiki issued a directive prohibiting the sale and consumption of shisha in the country, with warnings that establishments caught selling it would face closure.
“The importation, manufacture, sale, use, advertisement, promotion or distribution of shisha is outlawed in the country, any establishment found in breach of this provision will be shut down with immediate effect,” Kindiki ordered.
In response to the directive, the police have intensified their crackdown on clubs advertising, promoting, and selling shisha, resulting in numerous arrests.
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