A court in Mombasa has overturned the ban on shisha in the country, declaring it unlawful. Senior Principal Magistrate Joe Mkutu at Shanzu Law Courts made this ruling, highlighting that there was no valid or lawful prohibition on the use, production, sale, or offer for sale of shisha in Kenya.
In a significant development, 48 individuals who had been arrested and charged for selling and smoking shisha in January 2024 were set free as a result of this decision.
Mkutu’s ruling emphasized that the Health Cabinet Secretary had failed to comply with a 2018 High Court directive, which required the regularization of the Public Health (Control of Shisha) smoking regulations of 2017. This failure stemmed from the Health CS’s neglect to submit the regulations to Parliament for approval, as mandated by the court.
The court’s decision was prompted by the irregularity of the ban imposed by former Health CS Cleopa Mailu in December 2018. Mkutu pointed out that the nine-month period provided by Justice Roselyn Aburili for the ban’s regularization had expired without compliance.
“The shisha ban ceased to be operational following the lapse of the nine months,” Mkutu declared, dismissing the prosecution’s argument that the ban remained enforceable despite non-compliance.
Furthermore, the court ruled that the offenses for which the accused were charged did not exist under the regulations gazetted in 2017 at the time of the alleged offenses on January 14, 2024.
Consequently, all charges against the accused were refused, leading to their discharge in the consolidated matters before the court.
In light of this ruling, the magistrate ordered the immediate release of the 48 accused individuals unless lawfully detained for other reasons. They had been apprehended and prosecuted for the sale and consumption of shisha in January 2024.
