The High Court on Tuesday lifted Kenya’s ban on Shisha, declaring the continued enforcement of the prohibition unlawful and unconstitutional.
Judge Bahati Mwamuye found that the Public Health (Control of Shisha Smoking) Rules, 2017, which enacted the ban, ceased to have effect after the government failed to regularise them within the period directed by an earlier court ruling.
He consequently declared that the continued enforcement of the ban, including through government press releases and directives issued in 2025, was unlawful.
The decision effectively bars authorities from relying on the 2017 rules and subsequent notices to continue enforcing the Shisha prohibition against the affected traders.
The ruling marked a win for Shisha traders, businesses and users who had challenged or been affected by the continued enforcement of the ban.
But what exactly is Shisha? How does it work, what is contained in the tobacco mixture and is it safer because the smoke passes through water?
What is Shisha?
According to the Ministry of Health’s Regulatory Impact Statement for the Public Health (Control of Waterpipe Tobacco Products) Rules, 2026, Shisha is a method of smoking tobacco through a waterpipe.
The ministry describes the practice as commonly involving flavoured tobacco that is heated using charcoal.
The resulting smoke passes through water before being inhaled by the user.
“Waterpipe tobacco smoking, commonly known as shisha, is a method of smoking tobacco through a waterpipe, often involving flavored tobacco heated with charcoal,” the ministry says in its regulatory impact statement.
Unlike a cigarette, where the tobacco is smoked directly, Shisha involves a waterpipe with several components.
The tobacco mixture is placed in a bowl at the top of the pipe, while charcoal is used to heat it.
Smoke generated from the heated tobacco and charcoal, the ministry notes, travels down through the water in the base before reaching the user through a hose or mouthpiece.
The practice is often associated with social settings such as lounges, bars and nightclubs.
Flavours and the communal nature of smoking have also contributed to its appeal, particularly among young people.
What is inside Shisha?
The contents can vary depending on the product, but tobacco-based Shisha contains tobacco and therefore nicotine.
The Ministry of Health says Shisha smoke contains a range of toxic substances, including nicotine, carbon monoxide, tar and heavy metals.
“Despite perceptions of reduced harm due to water filtration, shisha smoke contains high levels of toxins, including nicotine, carbon monoxide, tar, and heavy metals,” the ministry says.
Nicotine is particularly important because it is addictive.
Carbon monoxide can also be produced from the charcoal used to heat the Shisha mixture, meaning exposure does not come only from the tobacco itself.
The ministry says Shisha mixtures are often flavoured, with exotic flavours helping make the practice attractive to consumers.
The regulatory statement notes that aggressive marketing and flavouring can contribute to misconceptions about the risks associated with waterpipe smoking.
The Ministry also says concerns about Shisha in Kenya have previously included the detection of narcotics such as heroin and cocaine in flavoured Shisha products.
It cites this, together with increased uptake among young people and evidence linking waterpipe smoking risks serious health outcomes, among the reasons behind the government’s efforts to regulate the practice.
Does the water make Shisha safer?
One of the most common perceptions surrounding Shisha is that the water filters out harmful substances before the smoke reaches the user.
The Ministry of Health disputes that assumption.
It warns that the presence of water should not be interpreted as making Shisha smoke safe, noting that harmful substances remain in the smoke after it passes through the water.
The World Health Organization has similarly warned against the perception that waterpipe smoking is safer than cigarette smoking.
In a scientific advisory note on waterpipe tobacco smoking, WHO said studies had found that waterpipe tobacco smoke contains toxic substances associated with diseases seen among cigarette smokers, including cancer.
“Every study to date has found that waterpipe tobacco smoke contains ample quantities of the toxicants known to cause diseases in cigarette smokers,” WHO says.
The organisation further notes that at least some of these toxicants are absorbed by waterpipe users and can subsequently be detected in their breath, blood and urine.
What does the smoke do?
According to WHO, the health effects associated with waterpipe smoking extend beyond nicotine dependence.
Available evidence, the body states, indicates that waterpipe smoking is probably associated with oral, oesophageal and lung cancers, and possibly with gastric and bladder cancers.
WHO also identifies evidence of associations with respiratory and cardiovascular diseases, periodontal disease, low birth weight, perennial rhinitis, male infertility and gastro-oesophageal reflux disease.
The organisation therefore advises regulators to treat waterpipe tobacco and its smoke with the same stringent standards applied to cigarette tobacco.
WHO also recommends public education campaigns specifically addressing the misconception that waterpipe smoking is safer or healthier than cigarettes.
How popular is Shisha in Kenya?
According to the ministry, Shisha became increasingly popular in Kenya, particularly among young people and in hospitality establishments, before the 2017 ban.
The Ministry cites the Global Youth Tobacco Survey, saying 6.2 per cent of Kenyan youth had tried Shisha.
It says the popularity of the practice has been driven by factors including aggressive marketing, exotic flavours and the social nature of smoking in lounges, bars and nightclubs.
The ministry also argues that enforcement of the previous ban was complicated by increased access to Shisha, misconceptions about its safety, weak enforcement and fragmented regulatory oversight.
Why was Shisha banned in Kenya?
The original 2017 prohibition was introduced amid concerns over the increasing popularity of shisha and its potential public health effects.
However, Tuesday’s High Court ruling was concerned primarily with the legality of the regulations used to enforce the prohibition, rather than making a determination that Shisha is medically safe.
In a 2018 ruling arising from a challenge to the ban, the High Court found that the Public Health (Control of Shisha Smoking) Regulations, 2017, had not followed the legal procedures required when making such regulations.
Rather than immediately nullifying them, the court gave the government nine months within which to correct the defects and regularise the regulations.
The rules was allowed to remain temporarily in force during that period.
Justice Mwamuye has now found that the government failed to comply with that earlier order within the stipulated period.
This means that the regulations subsequently ceased to have effect and could no longer provide a legal basis for enforcing the Shisha ban.
The ruling therefore means that authorities cannot continue enforcing the ban using the expired legal framework.
What happens next?
The High Court ruling does not necessarily end the government’s attempts to regulate Shisha.
Indeed, the Ministry of Health’s 2026 regulatory impact statement says the government has been developing new Public Health (Control of Waterpipe Tobacco Products) Rules, 2026, citing continued concerns over the popularity and health effects of waterpipe smoking.
The proposed regulatory approach shows that the government continues to view Shisha as a public health issue.
WHO, meanwhile, recommends comprehensive measures, including restrictions on advertising and promotion, health warnings, regulation of waterpipe venues and public education campaigns.
For consumers, the key distinction is therefore between the legal status of the 2017 ban and the health evidence concerning waterpipe smoking.
