A court in Mombasa has overturned the nationwide ban on shisha, declaring it unconstitutional.
Senior Principal Magistrate Joe Mkutu at the Shanzu Law Courts set free 48 individuals who had been arrested and charged for selling and smoking shisha in January 2024.
“There is no valid or lawful ban on the use, manufacture, sale, or offer for sale of shisha in the country,” said the Magistrate.
He highlighted the failure of the Cabinet Secretary for Health to comply with a 2018 High Court directive, stating, “The Cabinet Secretary, upon issuing the legal notice banning the use, manufacture, and sale of shisha, did not comply with the procedural requirements.”
This ruling stemmed from a previous judgment by Justice Roselyn Aburili in 2018, which found the initial shisha ban imposed by the then Health Cabinet Secretary Cleopa Mailu to be irregular.
Magistrate Mkutu noted, “I drastically disagree with the prosecution, particularly on the view that the shisha ban remains in force even after non-compliance by the Cabinet Secretary.”
Furthermore, Magistrate Mkutu clarified, “I have cited above, the respective offenses that the accused were charged with did not exist, and conviction cannot arise therefrom.” He refused to uphold the charges against the accused and discharged all individuals involved in the consolidated cases.
Following the ruling, Magistrate Mkutu directed the immediate release of the 48 accused persons, unless they were unlawfully detained for other reasons.
