The High Court of Kenya at Milimani (Constitutional & Human Rights Division) has ruled that the Public Health (Control of Shisha Smoking) Rules, 2017 lapsed more than seven years ago, and that the Government’s continued enforcement of a shisha ban — including two 2025 Ministry of Health press releases and a May 2025 licensing directive — is unlawful and unconstitutional. Delivered virtually in Petition No. E443 of 2025 on 28 July 2026, the judgment is a decisive win for the Novel Tobacco Products Association, the umbrella body for non-combustible tobacco products, which brought the case on behalf of its members. The Court agreed with the Association on every material point.
| Court | High Court of Kenya at Milimani — Constitutional & Human Rights Division |
| Case | Petition No. E443 of 2025 (filed 8 July 2025) |
| Judgment | Delivered virtually, 28 July 2026 |
| Petitioner | Novel Tobacco Products Association, on behalf of its members |
| Counsel | MNO Advocates LLP |
| Outcome | 2017 shisha Rules declared lapsed since April 2019; continued enforcement unlawful and unconstitutional; 2025 notices quashed; enforcement restrained. |
Background: How We Got Here
- 26 Jul 2018 — The High Court finds procedural defects in the 2017 shisha Rules and gives the Government nine months to regularise them (a decision later upheld by the Court of Appeal).
- 26 Apr 2019 — The nine-month deadline passes. The Government fails to regularise the Rules — so, in law, they cease to have effect.
- 3 Feb 2025 — A Ministry of Health press release declares the shisha ban “remains in force.” Nationwide raids follow — confiscated goods, business closures, and the arrest and harassment of traders.
- 14 Apr 2025 — A second Ministry press release announces a “crackdown on illegal shisha outlets in Nairobi” and directs continued nationwide enforcement.
- 31 May 2025 — On World No Tobacco Day, the Cabinet Secretary for Health suspends all licences and import clearances for nicotine products, including shisha, giving stakeholders 21 days to reapply.
- 8 Jul 2025 — The Association files Petition No. E443 of 2025, arguing the enforcement had no lawful basis.
- 28 Jul 2026 — The High Court rules for the Association on every material point.
What the Court Ordered
A. Declared the Public Health (Control of Shisha Smoking) Rules, 2017 no longer in force.
B. Declared the continued ban on shisha, and its enforcement, unlawful.
C. Declared both the 3 February 2025 and 14 April 2025 Ministry press releases unlawful and unconstitutional, and quashed them by an order of certiorari.
D. Declared that tobacco consumption cannot be outlawed through subsidiary legislation that offends the Statutory Instruments Act, 2013.
E. Declared that preferential treatment among tobacco products, as currently framed, is unconstitutional for contravening Article 27 of the Constitution.
F. Issued a conservatory order restraining the Ministry of Health, the Ministry of Interior, the Inspector-General of Police and the Attorney-General from enforcing the quashed notices against the Association’s members.
G. Directed each party to bear its own costs.
The Court also confirmed the Association’s standing to sue on behalf of its members, held that the petition was not time-barred, and found the enforcement violated members’ rights under Articles 27, 40, 47 and 50(2)(n) of the Constitution.
The Association’s Role in the Win
This victory was led, funded and argued by the Association on behalf of every member affected by the ban. It is the clearest demonstration yet of what membership delivers:
- The Collective Voice. The Association brought a single, representative petition on behalf of all its members — and the Court expressly affirmed its standing to sue for them.
- Engagement before litigation. Before going to court, the Association sought to engage the Ministry on proper regulation of novel tobacco products, turning to litigation only when enforcement continued.
- The winning legal strategy. The Association built and proved the core argument — that the 2017 Rules lapsed in 2019 and that every subsequent raid, closure and directive therefore had no lawful basis.
- Member Protection. It secured a conservatory order restraining the Ministry of Health, the Ministry of Interior, the Inspector-General of Police and the Attorney-General from enforcing the quashed notices against members — ending the raids, closures and arrests.
- Operational legitimacy restored. Members can once again trade lawfully, with the protection of a court order behind them.
- A precedent for the whole industry. The Association established that tobacco cannot be banned through subsidiary legislation that offends the Statutory Instruments Act, and that discriminatory treatment among tobacco products is unconstitutional.
- Proactive, responsible regulation. The Association has already submitted an industry self-enforcement mechanism proposal to the Ministry — to curb product adulteration, prevent sale to minors and close enforcement gaps.
In the Association’s Words
“This ruling confirms what our members have said since 2019: there has been no lawful ban on shisha in Kenya, and the raids, closures and arrests carried out against our members over the past year had no legal basis. We now expect the Ministry and law enforcement to comply fully with the Court’s orders and to engage the Association to advance proper, evidence-based regulation.”
— Ms. Chitechi, Counsel for the Association (MNO Advocates LLP)
What Happens Next
With the two press releases quashed and enforcement restrained by conservatory order, the Association is calling on the Ministry of Health to work with industry stakeholders to develop a lawful, properly structured regulatory framework for novel tobacco products — consistent with the Tobacco Control Act, 2007 and Kenya’s obligations under the WHO Framework Convention on Tobacco Control. The message throughout has been consistent: not prohibition, but fair, evidence-based regulation.
As Featured In
The ruling was widely covered across Kenyan and industry media on 28 July 2026. The selection below reflects how outlets reported the outcome and the Association’s role as petitioner.
Daily Nation — Court quashes ban on use of shisha (Nation.Africa, 28 July 2026)
Reported that the court quashed the shisha ban, holding that the 2017 rules ceased to have legal effect once the State missed the April 2019 deadline to regularise them — and describing the Association as the industry body that filed the petition.
nation.africa/kenya/news/court-quashes-ban-on-use-of-shisha–5540264
The Star — High Court lifts shisha ban, declares continued enforcement unlawful (28 July 2026)
Covered the lifting of the ban and detailed the conservatory order shielding Association members from enforcement of the February and April 2025 notices, alongside the constitutional-rights findings under Articles 27, 40, 47 and 50(2)(n).
the-star.co.ke/news/2026-07-28-high-court-lifts-shisha-ban
Kenyans.co.ke — High Court Declares Shisha Ban Unconstitutional in Major Win for Smokers (By Timothy Cerullo, 28 July 2026)
Framed the outcome as a major win for traders and smokers, explaining the Association’s central argument that the government kept enforcing the ban through public notices and crackdowns despite an earlier court ruling.
kenyans.co.ke/news/125652-high-court-declares-shisha-ban-unconstitutional-major-win-smokers
Nairobi Law Monthly — Shisha ban goes up in smoke after High Court ruling (28 July 2026)
A legal-desk analysis noting that expired regulations could not be enforced and that the directives issued against Association members violated their constitutional rights.
nairobilawmonthly.com/shisha-ban-goes-up-in-smoke-after-high-court-ruling
Nairobi Wire — Kenya’s Shisha Ban Goes Up in Smoke After High Court Verdict (28 July 2026)
Emphasised the court’s findings that the Association had standing to sue for its members and had not delayed unreasonably, and that the February and April 2025 notices were unlawful and unconstitutional.
nairobiwire.com/2026/07/kenya-shisha-ban-lifted-high-court-ruling.html
allAfrica — Kenya: Court Lifts Shisha Ban in Major Blow to Government Crackdown (28 July 2026)
Regional syndication highlighting that the ruling removes the legal basis authorities had relied on to sustain the ban, pending any fresh, lawful regulatory action by the government.
allafrica.com/stories/202607280277.html
Tobacco Reporter — Kenya Overturns Enforcement of Shisha Ban (28 July 2026)
Industry-press coverage confirming that the ruling prevents authorities from enforcing the 2017 regulations against Association members and invalidates the recent government crackdowns.
tobaccoreporter.com/2026/07/28/kenya-overturns-enforcement-of-shisha-ban
Kahawatungu — Court lifts shisha ban, terms enforcement unlawful, unconstitutional (28 July 2026)
Highlighted the relief the ruling brings to operators who had previously been harassed and arrested, and the order barring enforcement against Association members.
kahawatungu.com/court-lifts-shisha-ban-terms-enforcement-unlawful-unconstitutional
Khusoko — Kenya Court Strikes Down Shisha Ban Ruling (28 July 2026)
Provided business context, noting that the High Court decision goes further than earlier magistrate rulings by directly invalidating the government’s two most recent enforcement moves and restraining further action.
khusoko.com/2026/07/28/kenya-shisha-ban-unconstitutional-high-court-2026
About the Association
The Novel Tobacco Products Association is the umbrella body representing manufacturers, distributors and retailers of novel tobacco products in Kenya, including shisha. The Association advocates for evidence-based, non-discriminatory regulation of all tobacco and nicotine products.
Media contact: MNO Advocates LLP — Advocates for the Petitioner, 8th Floor, CMS Africa House, Chania Avenue, P.O. Box 34481–00100, Nairobi · resolution@mnolegal.co.ke
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