The Shanzu Law Courts in Mombasa has found Kindiki’s Directive on the ban of importation and use of Shisha Business in the country as unconstitutional.
Declaring the rulling, Senior Principal Magistrate Joe Mkutu said that the government failed to regularise the Public Health Rules which Controls the Shisha Smoking in the country.
According to the magistrate, the government failed to adhere to the 2018 High Court ruling by Justice Roselyn Aburili which directed former Health Cabinet Secretary Cleopa Mailu to regularise the rules by forwarding them to Parliament for approval.
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“In the result, guided by the decision of the High Court and pursuant to the stare decisis, I reach 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.”
The court Directive at that time said that the ban imposed by the Health Ministry was irregular but was to remain in force for nine months until the regulations were approved. However the ministry has not complied to date.
“The said rules were not regularised by the Cabinet Secretary within nine months as ordered and directed by the High Court and therefore ceased to have effect upon the expiry of nine months from the date of the decision of the High Court.”
This therefore means that the current ban by the government through the Interior Cabinet Secretary Kithure Kindiki who said the importation and the use of shisha is null and void.
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Business owners who own shisha dens will therefore continue with the business till the government complies to the directive by the court which till then means any directive on the ban of the business remains null.