Nairobi, Kenya – The High Court of Kenya has lifted the government’s ban on shisha, effectively legalising its sale and use across the country after ruling that the ban was imposed without following the required legal procedures.
In a judgment delivered today by the High Court at Milimani (Constitutional and Human Rights Division), the Court ruled in Petition No. E443 of 2025, filed by the Novel Tobacco Products Association.
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The Court found that the Public Health (Control of Shisha Smoking) Rules, 2017 ceased to have legal effect in April 2019 after the government failed to regularise them in accordance with the law. As a result, the Court held that subsequent enforcement actions—including raids, business closures, confiscation of shisha products, and arrests—had no legal basis.
The judgment also declared that the Ministry of Health’s press releases issued in February and April 2025, which sought to reinforce the ban, were unlawful and unconstitutional, and consequently quashed them.
Among its key findings, the Court ruled that tobacco products cannot be prohibited through subsidiary legislation that does not comply with the Statutory Instruments Act. It further held that treating shisha differently from other tobacco products without lawful justification violates the constitutional right to equality under Article 27.
The Court consequently issued orders restraining law enforcement officers and public health officials from enforcing the expired regulations or taking any action against members of the petitioning association based on those rules.
However, the ruling does not prevent the government from regulating shisha in the future. Instead, the Court made it clear that the Ministry of Health must develop fresh regulations, follow the statutory legislative process, and obtain parliamentary approval before any new restrictions can be lawfully enforced.
The judgment underscores a key constitutional principle that, while the government has a legitimate mandate to protect public health, such objectives must be pursued within the confines of the law. The Court emphasised that public policy cannot override due legislative process, and enforcement measures cannot stand where the underlying legal instruments were not lawfully enacted or maintained.
The ruling marks a significant legal victory for the Novel Tobacco Products Association and is expected to shape the future regulation of shisha and other tobacco products in Kenya.
