- Court ruled there was no valid or lawful prohibition on the use, production, sale, or offer for sale of shisha.
- In his ruling, Mkutu stated that the Health Cabinet Secretary had failed to adhere to a 2018 High Court directive mandating the regularization of the Public Health (Control of Shisha) smoking regulations of 2017.
Image: FILE
A court in Mombasa declared the ban on shisha in the country as unlawful.
Shanzu Law Courts Senior Principal Magistrate Joe Mkutu overturned the ban noting there exists no valid or lawful prohibition on the use, production, sale, or offer for sale of shisha in the country.
48 persons who had been arrested and charged for selling and smoking shisha in January 2024 were also set free.
In his ruling, Mkutu stated that the Health Cabinet Secretary had failed to adhere to a 2018 High Court directive mandating the regularization of the Public Health (Control of Shisha) smoking regulations of 2017.
The ruling stemmed from the Health CS's failure to submit the regulations to Parliament for approval as stipulated by the court.
Highlighting the irregularity of the ban imposed by former Health CS Cleopa Mailu in December 2018, Mkutu underlined that the nine-month period granted by Justice Roselyn Aburili for the ban's regularization had lapsed without compliance.
"The shisha ban ceased to be operational following the lapse of the nine months," declared Mkutu, 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.
As a result of the ruling, the magistrate ordered the immediate release of the 48 accused individuals unless lawfully detained for other reasons.
The defendants had been apprehended and prosecuted for the sale and consumption of shisha in January 2024.
The National Authority for the Campaign Against Alcohol and Drug Abuse (Nacada) has been leading the crackdown across various entertainment joints in the country.
The latest incident was on March 3 in Nairobi's Kilimani area where four people were arrested.
"These arrests mark a significant milestone in our ongoing efforts to combat the scourge of shisha consumption, "Nacada boss Anthony Omerikwa said.
The authority had said they are committed to dismantling the networks facilitating the sale and distribution of shisha, which they said poses significant health risks to the citizens.
It has since December 2023 arrested more than 60 people in separate club raids in Nairobi and Mombasa.
The operations have also resulted in the confiscation of a substantial quantity of shisha paraphernalia, including shisha bongs and charcoal pipes.
Shisha smoking, also known as water pipe, hookah, or hubble-bubble, was outlawed in 2017.
The comprehensive ban covered the use, import, manufacture, sale, promotion, and distribution of the product.