Kenya High Court lifts shisha ban, invalidating Public Health (Control of Shisha Smoking) Rules 2017

• The High Court has lifted the ban on shisha, ruling that continued enforcement is unlawful and unconstitutional.
• The court found that state agencies had relied on lapsed regulations to enforce the ban, despite a 2018 court order requiring regularisation within nine months.
• The judgment declares unlawful a Ministry of Health press statement and directive ordering a nationwide crackdown on shisha outlets.
• The court has issued orders restraining the government from enforcing the 2017 rules against the Novel Tobacco Products Association.

The ruling effectively removes the legal basis that authorities had relied on to sustain the ban, pending any fresh lawful regulatory action by the government.

The High Court's decision to lift the ban on shisha has sent shockwaves through Kenya's government, with far-reaching implications for public health and regulatory compliance. The ruling effectively removes the legal basis for the ban, pending any fresh lawful regulatory action by the government. This development comes after a prolonged battle between the government and the Novel Tobacco Products Association over the enforcement of the Public Health (Control of Shisha Smoking) Rules, 2017. The association had challenged the regulations in court, arguing that they were unconstitutional and unlawful due to the government's failure to regularise them within nine months as ordered by the court in 2018.

The High Court's judgment has exposed a disturbing pattern of regulatory overreach by the Kenyan government. The court found that state agencies had continued to rely on lapsed regulations to enforce the ban, despite the fact that the 2017 rules had ceased to have legal effect due to non-compliance with the court order. This raises serious questions about the accountability and transparency of the government's regulatory actions. Furthermore, the court's ruling has effectively declared unlawful a February 3, 2025 Ministry of Health press statement and an April 14, 2025 directive ordering a nationwide crackdown on shisha outlets.

The High Court's decision has significant implications for the constitutional rights of individuals and businesses in Kenya. The court found that the continued enforcement of the expired regulations violated the constitutional rights of members of the Novel Tobacco Products Association, and issued orders restraining the government from enforcing the 2017 rules and subsequent directives against the association. This ruling underscores the importance of regulatory compliance and the need for the government to establish fresh, lawful rules before taking any further action.

Lawyers advising clients on compliance with tobacco regulations in Kenya should be aware that the government's previous enforcement of the ban may have been unlawful, and any future regulatory action must be based on fresh, lawful rules.

Source: Original reporting via Capital FM