A High Court decision has handed shisha traders and users a major legal victory after finding that the government can no longer enforce regulations that banned the sale and use of the product.
In a judgment delivered on Tuesday, July 28, Justice Bahati Mwamuye ruled that the Public Health (Control of Shisha Smoking) Rules, 2017, are no longer legally enforceable.
The court found that the government failed to correct legal issues that had previously been identified, causing the regulations to lose their legal effect.
The case was brought before the court by the Novel Tobacco Products Association. The association argued that government agencies had continued to enforce the shisha ban through public notices and crackdowns despite an earlier court ruling that questioned the legality of the regulations.
According to the judgment, the legal problems surrounding the regulations were first highlighted in 2018.
At the time, Justice Roselyne Aburili allowed the rules to remain in force for nine months to give the Ministry of Health an opportunity to amend and regularize them.
The court had expected the government to make the necessary changes within that period.
However, the government did not complete the required amendments before the deadline expired. Justice Mwamuye ruled that once the period granted by the court ended without action, the regulations automatically ceased to have legal force.
As a result, authorities can no longer rely on them to arrest traders, close businesses, or take enforcement action against shisha users.
The court also struck down two government notices issued in 2025. One was a press release dated February 3, 2025, which stated that the shisha ban remained in effect.
The other directed authorities to carry out a crackdown on illegal shisha outlets in Nairobi. Justice Mwamuye found both notices unlawful and barred the Ministry of Health and other state agencies from enforcing them against members of the association.
In his ruling, the judge emphasized that the government cannot prohibit tobacco products through regulations that fail to comply with the requirements of the Statutory Instruments Act, 2013.
He also found that treating certain tobacco products differently from others under the current legal framework violated constitutional principles, including the right to equality before the law.
The ruling means that government agencies can no longer depend on the 2017 regulations or the 2025 notices to continue enforcing the shisha ban.
For traders, business owners, and users, the decision marks a significant court-backed victory and could influence how future tobacco-related regulations are developed and enforced in Kenya.
