Shisha Crackdown Thika Road
A Mombasa High Court has ruled that the ban on the importation, sale and use of shisha is unconstitutional.
In a ruling delivered by Shanzu Law Courts Senior Principal Magistrate Joel Omido on Thursday, March 28, the government failed to regularise the Public Health (Control of Shisha Smoking) Regulations as ordered by the court in 2018.
In the 2018 ruling, Justice Roselyn Aburili found that the shisha ban imposed by then Health CS Cleopa Mailu through 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 procedural requirements, including consideration of the ban by Parliament.
“Having already found that there is no valid and/or lawful ban on the use, manufacture, sale, offer for sale of shisha under the Public Health (Control of Shisha Smoking) Rules, 2017, because the said rules were not regularised by the Cabinet Secretary within nine (9) months as ordered and/or directed by the High Court, it follows that there are no valid charges in any of the consolidated files before me,” Omido ruled.
Following the ruling, Justice Omido ordered the release of 48 suspects arrested for selling shisha.
He held that the defendants were unlawfully detained because the charges against them did not exist and could not result in a conviction.
“The contents of the respective charge sheets contravene the provisions of Section 134 of the Criminal Procedure Code, which provides 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,” he added.
Omido also ordered that the accused be refunded the money they had deposited in cash bail during the trial.
The ruling comes days after Interior CS Kithure Kindiki said the importation, manufacture, sale, use, advertisement, promotion or distribution of shisha is prohibited in the country and any establishment found in contravention of this provision will be shut down.
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