Shisha smokers and traders have secured a major legal victory after the High Court ruled that the government can no longer enforce the 2017 ban on shisha, declaring the regulations behind it no longer legally valid.
Justice Bahati Mwamuye ruled that the Public Health (Control of Shisha Smoking) Rules, 2017 ceased to have legal effect after the government failed to amend the regulations within the timeline previously set by the court.
Court Says 2017 Shisha Rules Are No Longer Valid
In the judgment delivered on Tuesday, July 28, the court found that government agencies can no longer rely on the 2017 regulations to arrest shisha traders, shut down businesses, or enforce the ban.
The case was filed by the Novel Tobacco Products Association, which argued that despite an earlier High Court decision, government authorities continued to enforce the ban through public notices and crackdowns.
Justice Mwamuye agreed, ruling that the government failed to address the legal defects identified in an earlier court decision.
Government Failed to Amend the Law
In 2018, Justice Roselyne Aburili allowed the shisha regulations to remain in force for nine months to give the Ministry of Health time to correct the legal shortcomings in how they had been introduced.
However, the required amendments were never made within the court-ordered deadline.
Justice Mwamuye ruled that the regulations automatically lost their legal effect once that period expired.
Court Declares 2025 Government Notices Unlawful
The High Court also declared two government notices issued in 2025 unlawful, including:
- A February 3, 2025 press statement claiming the shisha ban remained in force.
- A subsequent directive ordering a crackdown on illegal shisha outlets in Nairobi.
The court barred the Ministry of Health and other government agencies from enforcing those notices against members of the association.
Judge Cites Constitutional Violations
Justice Mwamuye further ruled that the government cannot prohibit tobacco products using regulations that fail to comply with the Statutory Instruments Act, 2013.
He also found that treating certain tobacco products differently from others under the existing legal framework violated the constitutional right to equality before the law.
The ruling means the government can no longer rely on the 2017 regulations or the 2025 notices to enforce the shisha ban unless new legally compliant regulations are introduced.