NAIROBI, Kenya – The High Court has lifted Kenya’s controversial shisha ban, ruling that the continued enforcement of the prohibition is unlawful and unconstitutional because the regulations underpinning it ceased to have legal effect years ago.
In a judgment delivered on Tuesday, Justice Bahati Mwamuye held that the Public Health (Control of Shisha Smoking) Rules, 2017, expired after the government failed to rectify procedural defects within the timeline set by the court.
“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 Mwamuye ruled.
The decision stems from an earlier High Court judgment by Justice Roselyne Aburili, who found procedural flaws in the enactment of the regulations but allowed them to remain in force for nine months to give the Health Cabinet Secretary time to regularise them.
The 2017 regulations imposed a nationwide ban on shisha by prohibiting its importation, manufacture, sale, advertising, promotion, distribution and use across Kenya.
However, the Novel Tobacco Products Association challenged the continued enforcement of the ban, arguing that the government had failed to comply with the court’s directive to regularise the regulations but continued issuing enforcement directives against its members.
Justice Mwamuye agreed with the association, finding that it had the legal standing to file the petition on behalf of its members and that the case had not been brought after an unreasonable delay.
The judge ruled that because the State failed to regularise the regulations within the prescribed nine months, the 2017 rules could no longer provide a legal basis for enforcing the shisha ban.
As a result, the court declared unlawful the government’s continued reliance on the expired regulations, including a February 3, 2025 press release stating that the ban remained in force and an April 14, 2025 directive announcing a crackdown on illegal shisha outlets in Nairobi.
Justice Mwamuye declared both government notices unconstitutional and issued conservatory orders barring the respondents, their agents and employees from enforcing the two directives against members of the petitioning association.
The court also found that the continued enforcement of the ban violated constitutional protections under Articles 27, 40, 47 and 50(2)(n), which safeguard equality before the law, property rights, fair administrative action and fair trial rights.
In addition, the judge held that tobacco products cannot be outlawed through subsidiary legislation that does not comply with the Statutory Instruments Act, 2013.
Justice Mwamuye further ruled that the current legal framework gives preferential treatment to some tobacco products over others, declaring such unequal treatment unconstitutional under Article 27 of the Constitution.
The judgment effectively prevents authorities from relying on the 2017 regulations and the subsequent 2025 government notices to continue enforcing the shisha prohibition against affected traders unless fresh, legally compliant regulations are enacted.
