Kenya’s High Court has ruled that the government’s ban on shisha is no longer legally enforceable after authorities failed to correct procedural flaws identified in the regulations years ago, handing a significant legal victory to traders and users of the tobacco product.
Justice Bahati Mwamuye ruled Tuesday that the Public Health (Control of Shisha Smoking) Rules, 2017 ceased to have legal effect after the government failed to amend the regulations within a nine month period ordered by the court in an earlier judgment.
The ruling prevents government agencies from relying on the 2017 regulations to arrest traders, close businesses or enforce the nationwide prohibition on shisha.
The case was brought by the Novel Tobacco Products Association, which challenged continued government enforcement of the ban despite a previous High Court ruling that identified procedural defects in the regulations.
Justice Mwamuye found that the government failed to address those legal shortcomings after Justice Roselyne Aburili, in July 2018, allowed the regulations to remain in force for nine months to give the Ministry of Health time to correct them.
When that deadline expired without the required amendments, the regulations automatically lost legal force, the judge ruled.
“The Public Health Control of Shisha Smoking Rules, 2017, ceased to have effect upon the expiry of nine months from July 26, 2018,” Justice Mwamuye said in his judgment.
The court also struck down two government notices issued this year that sought to continue enforcing the prohibition.
Those included a February 3, 2025, statement declaring the shisha ban remained in force and an April 14, 2025, directive ordering a crackdown on shisha outlets in Nairobi.
Justice Mwamuye declared both notices unlawful and unconstitutional, saying they relied on regulations that no longer had legal standing.
He further issued a conservatory order preventing the Ministry of Health and other government agencies from enforcing the two directives against members of the Novel Tobacco Products Association.
The judgment also held that tobacco products cannot be prohibited through subsidiary legislation that does not comply with the Statutory Instruments Act, 2013.
The court further ruled that the current legal framework treats some tobacco products differently without constitutional justification, violating Article 27 of Kenya’s Constitution, which guarantees equality before the law.
The dispute dates back to Legal Notice No. 292 of 2017, which imposed a blanket prohibition on the importation, manufacture, sale, advertising, promotion, distribution and use of shisha across Kenya.
In the earlier 2018 decision, Justice Aburili found procedural defects in the way the regulations had been introduced but allowed them to remain temporarily while the government corrected those deficiencies.
The government never completed that process.
Justice Mwamuye also rejected arguments challenging the association’s legal standing, ruling that it was entitled to file the petition on behalf of its members and that the case had not been brought after an unreasonable delay.
The court found that continued enforcement of the expired regulations infringed constitutional protections relating to equality, property rights, fair administrative action and the right to a fair hearing.
The decision effectively removes the legal basis that authorities have relied upon in recent years to enforce the shisha ban.
Government officials have not publicly indicated whether they will appeal the ruling or introduce new legislation to regulate or prohibit shisha under a legally compliant framework.
The judgment does not prevent Parliament or the Ministry of Health from pursuing future restrictions. It requires that any such measures comply with constitutional procedures and Kenya’s statutory law.
The ruling is expected to have immediate implications for businesses that sell shisha, many of which had faced repeated enforcement operations despite the unresolved legal questions surrounding the 2017 regulations.
Legal analysts say the decision also reinforces judicial oversight of delegated legislation, signaling that government agencies must comply with statutory rule making procedures before restricting commercial activities or public conduct.
The case is likely to influence future legal challenges involving regulations enacted without full compliance with Kenya’s legislative requirements.
What We Know So Far
- Kenya’s High Court ruled that the 2017 shisha regulations are no longer legally enforceable.
- The government failed to amend the regulations within the nine month period ordered by the court in 2018.
- Authorities can no longer rely on the expired regulations to arrest traders or close shisha businesses.
- The court also invalidated two 2025 government notices used to continue enforcing the ban.
What Authorities Are Saying
Justice Bahati Mwamuye ruled that the regulations expired after the government failed to regularize them within the court ordered period.
The court also held that banning tobacco products through regulations that do not comply with the Statutory Instruments Act is unlawful and that unequal treatment of tobacco products violates constitutional guarantees of equality.
Why This Matters
The ruling represents one of Kenya’s most significant judicial decisions on delegated legislation in recent years.
Beyond shisha, the judgment reinforces the principle that government regulations must follow constitutional and statutory procedures before they can limit business activities or individual rights. The decision could influence future legal challenges involving regulations introduced without full legislative compliance.
What Happens Next
The government may appeal the decision or introduce fresh legislation that complies with constitutional requirements if it wishes to continue regulating or banning shisha.
Until then, authorities cannot lawfully enforce the expired 2017 regulations or rely on the invalidated 2025 directives against affected traders.
Sources: The Standard Kenya and The Star Kenya.
