The High Court has ruled that the government’s continued enforcement of Kenya’s shisha ban is unconstitutional, effectively bringing to an end the blanket prohibition that has been in place since 2017.
In a judgment delivered by Justice Bahati Mwamuye, the court found that the legal framework underpinning the ban had not been regularised within timelines previously directed by the courts, making its continued enforcement unlawful.
As a result, the judge barred government agencies from implementing or relying on enforcement notices issued in February 2025 and April 2025, declaring both notices unconstitutional.
The court held that restrictions affecting the consumption and regulation of tobacco products must be anchored in law and cannot be imposed through subsidiary legislation that fails to comply with the provisions of the Statutory Instruments Act, 2013.
Justice Mwamuye further found that continued implementation of the ban infringed constitutional rights, including the right to fair administrative action and the guarantee of equality before the law.
The decision represents a major milestone in the prolonged court battle over the regulation of shisha in Kenya. Since 2017, government agencies, led by the Ministry of Health, have treated the regulations as imposing a complete prohibition on the importation, manufacture, distribution, sale and use of shisha across the country.
Despite the court’s decision, the Ministry of Health is already pursuing a new regulatory framework through the proposed Public Health (Control of Waterpipe Tobacco Products) Rules, 2026. The proposed rules are intended to establish a comprehensive regime governing the manufacture, importation, marketing, sale and consumption of waterpipe tobacco products.
The latest ruling means that the previous blanket ban can no longer be enforced unless fresh regulations are enacted in accordance with constitutional requirements and the procedures prescribed by law.
