Shisha dealers dealt a blow in move to restore its use in Kenya

The ban on smoking and importation of shisha in Kenya is still on after the High Court on Monday (January 15) declined to suspend the ban imposed by Health Cabinet Secretary Dr. Cleopa Mailu.

Shisha dealers had moved to court seeking suspension of the ban which they argue would cause unemployment and loss of income.

Justice Roselyn Aburili, however, declined to issue a stay order against a Gazette notice outlawing selling and consumption of the substance until the matter is heard fully and a final verdict issued.

“I find and hold that a lesser risk in this matter at this stage is to decline a stay sought and instead allow the matter to proceed to hearing and determination of the substantive motion and ensure that it is fast tracked,”ruled Aburili.
Aburili said that where there are losses to the shisha business or loss of employment that loss can be quantified and, subject to proof, be compensated by way of damages in legal proceedings.
The court also noted that it is important to give each side an opportunity to argue their case, adding that she is not persuaded that if a stay is denied at this stage then the main application if successful will be rendered nugatory.
The case will be mentioned on Monday, January 22.
In the case, 15 applicants led by Kennedy Amdany Langat, Maurice Obunga, Stephen Irungu, Vivian Shikweya and Henry Gitau moved to court to challenge the ban on the importation, promotion and the use of Shisha in Kenya.
The businessmen claim that the CS did not consult them or involve the public before reaching the decision. According to them, the notice by the CS is” discriminative, erroneous and it contravenes the constitution”.

However, the Health Cabinet Secretary asked the court to dismiss the case arguing that consumption of the product in Kenya has been found to be a gateway to consumption of other hard drugs such as heroin.

In his responses filed in court last week, Dr. Mailu said that he exercised his powers under Section 36(m) of the Public Health Act when he imposed the ban on importation, sale, advertisement, promotion and distribution of shisha in Kenya.

The Health CS further noted that the decision to ban shisha is not based on “biasness, unreasonable or bad faith” as alleged by the petitioners. Mailu says that the decision was based on the greater public interest of protecting and enforcing public health from harmful effects and practices associated with shisha consumption.

The CS argues that from available statistics, the use of shisha has revealed severe acute and chronic health effects on consumers and exposed non consumers.

Kenya announced the ban on Shisha on December 28, 2017 becoming the third in the region, after Tanzania and Rwanda, to outlaw water-pipe tobacco in less than two years.

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Story By Dzuya Walter
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