Shisha lovers, manufacturers and promoters were dealt another blow on Friday after the High Court declined to suspend a ban imposed on Thursday by Health CS Cleopa Mailu.
Fifteen people, among them smokers, distributors, promoters and manufacturers filed an urgent application at the High Court to protest against the ban.
They said the decision by the CS to ban the importation, sale, advertising and even promotion of shisha is irregular and should be lifted pending hearing of the suit.
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But Justice John Mativo said he could not issue any orders until all parties are heard.
Instead, the judge allowed the applicants to sue the ministry, CS Mailu and the Attorney General, whom he said must be served with the suit papers immediately.
The parties were ordered to go back to court on January 4 for further directions.
The suit was filed by Kennedy Amdany, Richard Mukuria, Samuel Mburu, Nzioka Maingi, Stephen Irungu and Joseph Kamau.
Others are John Mwangi, Vivian Shikyeya, John Mburu, Stephen Maina, Henry Gitau, Joseph Kamanu, Maureen Kemuntu and James Otieno.
They want the CS’s decision contained in a Kenya Gazette Notice dated December 28 quashed, saying it is unreasonable, biased and was made in bad faith.
Following the gazettement of the legal notice, anyone found violating the new rules will be liable to a fine not exceeding Sh50,000 or to imprisonment for a term not exceeding six months, or both.
If the offence is of a continuing nature, a further fine not exceeding Sh1,000 per day will be imposed, the legal notice states.
The applicant’s argument is that the CS acted irrationally when he banned the use of shisha without informing the public first.
“That the legal notice as introduced by the CS is erroneous since the cited sections only confer powers to the CS to give regulations on matters regarding infectious diseases and not tobacco usage,” Langat says in an affidavit.
The applicants further argue that shisha users have been discriminated against, since cigarettes, which are also products of tobacco, have been legalised.
According to them, in gazetting the legal notice, Mailu failed to consider the fact that businesses will suffer losses and even collapse.
“The legal notice has not been substantiated by a medical report illustrating the adverse health effects caused by the use of shisha, neither has the CS given a cogent reason that informed the said decision to ban shisha use,” they said.
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