The High Court in Nairobi has declined to set aside the ban of Shisha declared by former Health Cabinet Secretary Cleopa Mailu.
On Thursday, Justice Roselyn Aburili ruled that the court cannot afford to gamble with Kenyans’ lives and upheld the ban on the tobacco-made product.
“The ban on shisha though irregular shall remain in force as this court cannot gamble with the health and future of generations of Kenyans,” she said.
“I decline to invalidate the rules but it is the duty of the State to take protective measures without having to wait until negative effects manifest,” she ruled.
The court, however, found that the Cabinet Secretary violated the Constitution in issuing the legal notice banning the smoking of the substance. Justice Roselyn further noted the CS failed to involve public and stakeholders doing Shisha business.
“Fair administrative action is a right guaranteed in the constitution,” ruled Justice Aburili.
Shisha dealers had filed the case in court seeking to have the ban on the substance suspended, arguing that it caused loss of jobs as well as income.
CS Mailu declared a ban on the importation, advertisement, promotion, sale and smoking of shisha in Kenya on December 28th, 2017.
The Ministry warned that those found guilty of contravening the new rules would be “liable to a fine not exceeding Sh50,000 or imprisonment for a term not exceeding six months or both.”
This made Kenya the third East African country, after Tanzania and Rwanda, to outlaw water-pipe tobacco.
The National Environment Management Authority (NEMA) has since raided several night clubs in Nairobi and Mombasa suspected to be flouting the regulations.
