A Mombasa High Court has declared the ban of shisha in Kenya unconstitutional.
In a ruling on Thursday, March 28 Shanzu Law Courts Senior Principal Magistrate Joel Omido said there is no valid and lawful ban on the use, manufacture and sale of shisha in Kenya.
He noted that the Cabinet Secretary for Health failed to regularize the Public Health (Control of Shisha Smoking) rules within nine months as directed by the Court in 2017.
“Having already reached the finding that there is no valid and/or lawful ban for the use, manufacture, sale, offer for sale of shisha under the Public Health (Control of Shisha Smoking) Rules, 2017 for the reason that the said rules were not regularized by the Cabinet Secretary within nine (9) months as ordered and/or directed by the High Court, it follows that there are no valid charges in any of the consolidated files before me,” Omido ruled.
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The senior Principal Magistrate freed 48 accused persons who were arrested for selling and smoking shisha in January 2024.
Omido noted that the accused were unlawfully detained as the charges against them do not exist and no conviction can arise therefrom.
“The contents of the respective charge sheets defy the provisions of Section 134 of the Criminal Procedure Code which provides that a charge shall contain a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of offence charged,” he added.
Omido directed the accused to be refunded the money they had deposited as cash bail during the case.
