High Court voids enforcement of 2017 shisha rules; 2025 crackdown directives fall
Key points
- Justice Bahati Mwamuye: 2017 shisha control rules lost legal force after the State missed a 2018 nine-month fix window.
- Court nullified a 3 February 2025 press note and 14 April 2025 crackdown directive based on dead rules.
- Enforcement without valid law was held unconstitutional; Novel Tobacco Products Association members protected by orders.
- Fresh, compliant regulations would be needed if the State wants a new lawful ban framework.
A statute that expires cannot be revived by press statement. That was the core of Justice Bahati Mwamuye's High Court finding that Kenya's continued shisha crackdown rested on the Public Health (Control of Shisha Smoking) Rules, 2017 after those rules had already lost legal effect, Eastleigh Voice reported.
In 2018 a court had given the State nine months to regularise the rules. That window closed without compliance, Mwamuye held, so the 2017 instrument ceased to have force. Agencies nonetheless kept enforcing a ban. The judgment treats that as enforcement without a valid legal foundation — and therefore unconstitutional.
Which later acts were struck
The court nullified a 3 February 2025 press statement and a 14 April 2025 directive that announced a nationwide crackdown on shisha outlets, finding both anchored on regulations no longer in force. Public authorities, the judge said, cannot lawfully rely on expired legislation to restrict businesses or prosecute traders.
Members of the Novel Tobacco Products Association had challenged the crackdown; the court found their constitutional rights were violated by the continued action. Orders prohibit the State from enforcing the expired 2017 rules and the subsequent directives against association members. The ruling removes the legal basis that sustained the ban unless Parliament or the Executive builds a new, lawful framework.
Health policy still has other tools
Voiding dead rules is not a medical endorsement of shisha. The Ministry of Health can still pursue taxation, packaging, age limits and venue rules if it legislates properly. Health desk: Health.
Operators should not treat the judgment as a free-for-all: ordinary business licences, local by-laws and general tobacco statutes may still apply. What fell is reliance on the 2017 shisha rules and the 2025 crackdown papers tied to them.
Based on Eastleigh Voice reporting of Justice Mwamuye's judgment. The sealed order and gazette steps control how agencies must act next.
