Why you will not be arrested for smoking or selling shisha


Shisha smoking equipment seized during Nacada raids on residential homes in Nyali, Mombasa on January 14, 2024.

Photo credit: Wachira Mwangi | Nation Media Group

Shisha smokers, manufacturers and retailers have reason to smile after it emerged that regulations prohibiting the use and consumption of the substance have not been formalised.

This means that any criminal cases or charges based on unformalised regulations are invalid and cannot be used to prosecute users, manufacturers and traders of the substance.

Shanzu Senior Principal Magistrate Joe Omido found that there was no valid ban on shisha under the Public Health (Control of Shisha Smoking) Rules, 2017, as required by the Constitution. 

"The respective offences for which they were charged did not exist, and no conviction can result therefrom," the magistrate said as he discharged all 48 people charged with selling and smoking shisha in January this year.

The magistrate ruled that the contents of the respective charge sheets against the 48 people violated the provision of Section 134 of the Criminal Procedure Code, which states 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 to give reasonable information as to the nature of the offence charged.

"There is no specific offence in the cases before me as the offences did not exist at the time the accused persons are alleged to have contravened the law," the magistrate said.

Under Section 89 (5) of the Criminal Procedure Code, if the court is of the opinion that a complaint or formal charge made or presented does not disclose an offence, the magistrate noted that the court must make an order refusing to admit the complaint or formal charge and record its reasons for the order.

"I hereby dismiss the charges in all the consolidated matters before me. I hereby discharge all the accused persons in all the respective consolidated matters. Each of the 48 accused persons in the four consolidated matters shall be released forthwith, unless otherwise lawfully detained," the magistrate said. 

The court ordered that the cash bail deposited by all the accused be released to them or to the depositors.  

All the 48 people were charged under the Public Health (Control of Shisha) Rules, 2017, for offences committed on 14 January 2024.

However, the magistrate found that there was no valid and/or lawful prohibition on the use, manufacture, sale or offering for sale of shisha under the rules because the said rules were not regularised by the Cabinet Secretary for Health within nine months as ordered by the High Court in 2018.

According to the magistrate, the rules banning the use, manufacture and sale of shisha ceased to have effect on the expiry of the nine months from the date of the High Court judgment.

The magistrate went on to say that, in his view, there was no way that the High Court could give life to the rules indefinitely when the law itself required them to be complied with.

"To do so would, in my view, be to circumvent Parliament, which is the body charged with the responsibility of legislating. For this reason, I find that the extension was not indefinite or unlimited, but limited to the period of nine months," he said. 

 The magistrate relied on section 11(4) of the Statutory Instruments Act, which provides that if a copy of a statutory instrument required to be laid before Parliament is not laid in accordance with this section, the statutory instrument shall cease to have effect immediately after the last day on which it is laid.

The High Court had in 2018 declared Legal Notice No. 292 of 27 December 2017, which gave rise to the Shisha ban, as irregular and directed that it be regularised. The High Court, however, allowed the irregular regulations to remain in force for nine months to enable the relevant ministry to act expeditiously and regularise it for effective control of the sale, use and manufacture of Shisha in Kenya.

The High Court held that the CS for Health was under a statutory obligation to ensure that a copy of the regulations was sent to the Clerk for laying before Parliament within seven sitting days of their publication.

The regulations should have been laid before Parliament for approval prior to implementation, but this has not yet been done.

 Therefore, it goes without saying that the state has been using these irregular rules to prosecute Kenyans using the substance since 2018.

"I understand the High Court to be saying that if the irregular regulations are not regularised by the Cabinet Secretary within nine months, they will be declared irregular and their force will cease immediately," said Mr Omido.

The magistrate concluded that there was nothing the prosecution had submitted to his court to show that the process of regularising the ban had ever been initiated or even attempted during the nine-month grace period.

The prosecution had contended that the shisha ban remained in force even after the Cabinet Secretary for Health failed to comply.

According to the prosecution, the charges against the 48 people were legally established and should be unconditionally admitted. 

But the accused, through their lawyer Mr Muliro, argued that there was no valid ban on the use of the substance.

"Despite the nine-month grace period to address the irregularities identified in the High Court judgment, the CS Health never initiated the process to regularise the rules and/or ban shisha," said Muliro.

In this case, the 48 people were charged with the offence of selling shisha contrary to Rule 3 of the Public Health (Control of Shisha Smoking) Rules read with Section 164 of the Public Health Act.

They were also charged with the offence of smoking shisha in contravention of the above regulations. When the matter came up before the magistrate, he varied the pleas and asked the prosecution and the 48 accused to address the court on whether there are any laws or regulations that prohibit the use, manufacture, sale or offer for sale of shisha.

Those arrested include Eric Ndoro, Mohamed Said, Salim Saleem and 45 others.