A ruling by Senior Principal Magistrate Joe Mkutu at the Shanzu Law Courts in Mombasa deemed the nationwide ban on shisha as illegal. The magistrate overturned the ban, stating that there is no legitimate or legal basis for prohibiting the use, production, sale, or offering for sale of shisha in the country.
Mkutu’s ruling highlighted the Health Cabinet Secretary’s non-compliance with a 2018 High Court order, which required the regularization of the Public Health (Control of Shisha) smoking regulations from 2017.
The ruling stemmed from the Health CS’s failure to submit the regulations to Parliament for approval as stipulated by the court.
Emphasizing the illegitimacy of the ban enforced by former Health CS Cleopa Mailu in December 2018, Mkutu pointed out that the nine-month timeframe provided by Justice Roselyn Aburili for the regularization of the ban had expired without adherence.
“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, Thus, 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 spearheading operations targeting numerous entertainment venues nationwide.
The agency has affirmed its dedication to dismantling networks involved in the sale and distribution of shisha, citing substantial health hazards posed to citizens. It has since December 2023 arrested more than 60 people in separate club raids in Nairobi and Mombasa.
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.
