Shisha product and consumption to remain illegal in the country.
This is after high court this morning declined to lift the ban imposed by the government.
Lady Justice Roselyn Aburili directed that the matter be heard fully before a final verdict is 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 prove can be compensated by way of damages in legal proceedings.
The court also noted that it is important to give each side an opportunity to urge 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.
Health Cabinet secretary Dr. Cleophas Mailu urged the court to dismiss the case challenging Shisha ban claiming that Consumption of Shisha in Kenya has been found to be a gateway to consumption of other hard drugs such as heroine.
Mr Mailu while responding to the case said he exercised his powers under section 36(m)of the public Health Act when he imposed the ban on importation , sale , advertise , promotion and distribution of Shisha in Kenya.
“The manufacture, importation, distribution, sale and the consumption of Shisha is not licensed in Kenya,”reads the court documents.
The health CS says 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.
Further the Cs has attaches a copy of an advisory note on water pipe smoking published by WHO. The report observes that shisha contains nicotine which is highly addictive substance.
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 erroneous and it contravenes the constitution. The applicants also say it is discriminative.
However Health Cabinet Secretary Dr. Cleopa Mailu has however asked the court to dismiss the case challenging shisha ban claiming that consumption of the product in Kenya has been found to be a gateway to consumption of other hard drugs such as heroin.