Forty-eight people arrested for selling and smoking shisha have been released by a Mombasa court after finding that the government was acting unlawfully.
Senior Principal Magistrate Joe Mkutu, sitting in Mombasa's Shanzu Law Courts, ruled on Thursday that there is "no valid or lawful ban" on the use, manufacture, sale, or offer for sale of shisha in Kenya.
Magistrate Mkutu highlighted in his finding that the Cabinet Secretary for Health failed to comply with a 2018 High Court order for the CS for Health to regularise the Public Health (Control of Shisha) smoking rules of 2017 by submitting them to Parliament for approval.
In the 2018 ruling, Justice Roselyn Aburili determined that the shisha ban imposed by then-Health CS Cleopa Mailu via a gazette notice dated December 28, 2018, was irregular but allowed it to remain in force, giving the Health Minister nine months to regularise the ban by following the procedural requirements, which included Parliament's consideration of the ban.
This criterion was never satisfied; thus, according to Magistrate Mkutu, the prohibition expired after the nine-month term imposed by Justice Aburili.
"It is not in dispute that the High Court reached a finding that the Cabinet Secretary, upon issuing the legal notice banning the use, manufacture and sale of shisha did not comply with the procedural requirements.”
"With profound respect, I drastically disagree with the prosecution, particularly on the view that the shisha ban remains in force even after non-compliance by the Cabinet Secretary," ruled the Magistrate.
"...I have cited above, the respective offences that the accused were charged with did not exist and conviction cannot arise therefrom," added the court. "I hereby refuse to admit the charges in all consolidated matters before me. I proceed to discharge all the accused persons in all the respective consolidated matters."
Following the verdict, Magistrate Mkutu ordered that the 48 accused people in the four aggregated cases be released unless they were wrongfully incarcerated.
