Kenya’s shisha lounges got their clearest legal win yet this week. The High Court has struck down the country’s shisha ban as unconstitutional, ruling that the regulations behind it expired years ago and that the government has no lawful basis to keep enforcing them.
For bar and restaurant owners who have absorbed nearly a decade of sporadic crackdowns, the ruling offers something rare: a definitive answer from the bench.
Justice Bahati Mwamuye delivered the judgment on Tuesday, finding that the Public Health (Control of Shisha Smoking) Rules of 2017 lapsed after the Ministry of Health missed a court ordered deadline to formalise them through Parliament. The ruling also voided two 2025 government notices that had reignited enforcement against shisha outlets nationwide.
Peer Pressure and Easy Access Fuel Drug Use Among Kenyan University Students
How a 2017 Ban Unravelled Over a Missed Deadline
The case dates back to 2018, when Justice Roselyn Aburili ruled that the shisha ban, first imposed in December 2017 by then Health Cabinet Secretary Cleopa Mailu, had bypassed proper procedure. Her order gave the ministry nine months to regularise the rules by tabling them in Parliament, a step required for subordinate legislation to carry lasting legal force. That deadline passed in 2019 without the ministry acting. Under Kenyan law, regulations that miss such a deadline simply cease to exist as enforceable law, no matter how often officials keep citing them.
In March 2024, a Shanzu magistrate’s court freed 48 people arrested for selling or smoking shisha, ruling no valid ban existed at the time. Despite that, the Ministry of Health publicly insisted the prohibition remained in force. Principal Secretary Mary Muthoni reiterated the ban in a February 2025 statement, and the ministry followed with an April 2025 directive ordering a fresh nationwide crackdown.
What the Ruling Actually Changes
Justice Mwamuye’s judgment goes further than the earlier magistrate court decisions, which applied only to individual criminal cases. This time, the High Court has directly invalidated the government’s two most recent enforcement moves, the February 2025 statement and the April 2025 crackdown directive, and restrained state agencies from enforcing the lapsed regulations going forward.
The case was brought by the Novel Tobacco Products Association, whose members argued that continued enforcement of an expired regulation violated their constitutional rights to equality, property protection, fair administrative action and a fair hearing. Justice Mwamuye agreed on all counts, finding the state had no legal footing left once the rules lapsed in 2019.
Business Owners Cheer, Health Advocates Push Back
Lounge and restaurant operators welcomed the ruling as overdue correction, one that finally holds government to the same procedural standards it expects of businesses, and are calling for new regulations built on clear evidence and proper parliamentary process.
Public health advocates see a different story. Their concern isn’t the legal reasoning, but what follows in a regulatory vacuum. Shisha exposes users to concentrated carbon monoxide, tar and nicotine over an extended session, and researchers have long compared a typical hour long session to smoking dozens of cigarettes in quick succession, a comparison that varies across studies but consistently points to significantly higher toxic exposure than a single cigarette. That risk hasn’t changed. What has changed is the legal tool the government previously used, however shakily, to restrict access to it.
Where This Leaves Kenya’s Shisha Lounges
The ruling doesn’t necessarily mean shisha is here to stay unregulated. The government can appeal, or draft fresh regulations and actually table them in Parliament this time. Given how long the 2017 rules limped along without proper footing, either path would give Kenya’s hospitality sector something it has lacked for most of the past decade: a shisha policy that can survive a courtroom challenge. Until then, lounges offering shisha operate in a genuine grey zone, legal under this week’s ruling, but only until the next notice, appeal, or act of Parliament changes the picture again.
