The High Court has barred the government from enforcing a ban on shisha after finding the State unlawfully relied on expired regulations.
The court said the government failed to comply with an earlier court order requiring the regulations to be regularised, rendering years of subsequent enforcement unlawful.
Justice Bahati Mwamuye declared that the Public Health (Control of Shisha Smoking) Rules, 2017 ceased to have legal effect after the government failed to regularise them within nine months of a 2018 High Court judgment. The deadline to regularise the Shisha rules, Public Health (Control of Shisha Smoking) Rules, was April 26, 2019.
Justice Mwamuye further quashed two government press releases announcing continued enforcement and restrained authorities from acting against members of the Novel Tobacco Products Association under the expired rules.
Shisha bongs confiscated during a crackdown by the National Campaign Against Alcohol and Drug Abuse in Kilimani, Nairobi on December 22, 2023.
Photo credit: Wilfred Nyangaresi I Nation Media Group
The judgment arose from a petition filed by the Novel Tobacco Products Association challenging continued enforcement of the shisha ban through official directives from the Ministry of Interior and public notices. They said the legal framework had lapsed.
Justice Mwamuye held that "the Public Health (Control of Shisha Smoking) Rules, 2017... ceased to have effect" because the respondents failed to regularise them within the period ordered by the High Court in 2018.
"The failure by the respondents to regularize the rules within that period means that the rules are no longer in force," the judge said.
The court found that authorities nevertheless continued enforcing the ban through a press release dated February 3, 2025, another issued on April 14, 2025, and a directive dated May 31, 2025.
Justice Mwamuye ruled that "the continued enforcement of the ban on shisha... is unlawful" and issued an order stopping the State from enforcing the February and April 2025 notices against members of the association.
Furthermore, he found that the respondents' actions violated the rights of the petitioner's members under the Constitution.
Among the final orders, the judge declared that the continued ban on shisha and its enforcement were unlawful and contrary to Article 10 of the Constitution and Section 11 of the Statutory Instruments Act.
He also declared unlawful and unconstitutional the February 3, 2025 press release stating that the ban remained in force and the April 14, 2025 announcement of "a crackdown on illegal shisha outlets in Nairobi."
Justice Mwamuye further declared that "the consumption of tobacco products cannot be outlawed through subsidiary legislation that offends the Statutory Instruments Act, 2013."
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He also declared that the "preferential treatment on consumption of some tobacco products is unconstitutional as currently framed," saying it contravened Article 27 of the Constitution.
The dispute traces its roots to the government's 2017 ban on shisha through Legal Notice No.292 of 2017.
In July 2018, the High Court found procedural defects in the regulations but allowed the ban to remain temporarily because of public health concerns, directing the government to regularise the legal notice within nine months.
Justice Mwamuye held that the government did not comply with that requirement, meaning the rules expired while enforcement continued.
The Novel Tobacco Products Association describes itself as an industry body representing manufacturers, importers, distributors, retailers and handlers of novel tobacco and nicotine products.
Separately, the Ministry of Health published draft Public Health (Prohibition of Shisha Smoking and Waterpipe Tobacco Products) Rules, 2026 for public participation in June, proposing a fresh legal framework to prohibit shisha smoking and related waterpipe tobacco products.
