Kenya Ministry of Health Introduces Stricter Regulations on Shisha Trade

Kenya's Ministry of Health has proposed the Public Health (Prohibition of Shisha Smoking and Waterpipe Tobacco Products) Rules, 2026, aiming to significantly tighten controls on the shisha trade. These proposed rules seek to prohibit the importation, manufacture, sale, distribution, advertising, promotion, and use of shisha and other waterpipe tobacco products. Critically, the new regulations introduce stringent penalties, including fines of up to Sh1 million and/or six months imprisonment for various offenses, replacing the less effective 2017 rules. This legislative move underscores the government's commitment to addressing persistent public health concerns associated with shisha use, particularly among the youth, despite previous bans.

The landscape of public health regulation in Kenya is poised for a significant shift with the Ministry of Health's recent proposal of the Public Health (Prohibition of Shisha Smoking and Waterpipe Tobacco Products) Rules, 2026. This new legislative instrument targets the pervasive shisha trade, which has continued to thrive despite existing prohibitions. The proposed rules introduce substantially harsher penalties, including fines of up to Sh1 million, signaling a robust governmental intent to curb the use and supply of waterpipe tobacco products across the country.

This development is not merely an incremental adjustment but a comprehensive overhaul designed to address the loopholes and enforcement challenges that have plagued previous regulatory efforts. The Ministry's move is driven by persistent public health concerns, including the spread of communicable diseases and the documented harmful effects of shisha smoking, which disproportionately affects young people.

This article will delve into the specifics of the proposed 2026 Rules, examining their legal context within Kenya's public health framework, analyzing their potential impact on the shisha trade, and highlighting the implications for legal practitioners and businesses operating within this evolving regulatory environment.

The regulatory journey concerning shisha in Kenya has been marked by a series of legislative attempts to safeguard public health. The foundational legal framework for public health in Kenya is primarily derived from the Public Health Act (Cap. 242) and the Tobacco Control Act, 2007 (Cap 245A). Under this framework, the Cabinet Secretary for Health is empowered to make rules for the prevention, control, or suppression of infectious diseases and other public health threats.

A significant step was taken in December 2017 when the Public Health (Control of Shisha Smoking) Rules, 2017, were enacted, imposing a comprehensive ban on the importation, manufacture, sale, offer for sale, use, advertisement, promotion, and distribution of shisha in Kenya. This ban was a response to growing evidence of shisha's severe health risks, including respiratory complications, heart problems, and exposure to harmful toxins, with a single shisha session equated to smoking numerous cigarettes.

However, despite the 2017 ban, shisha use and trade have continued largely unabated, particularly in entertainment venues and among the youth. This persistent non-compliance and the emergence of new product variations, such as herbal and flavored waterpipe products, prompted the Ministry of Health to seek stronger measures. Furthermore, a recent judicial pronouncement in *Republic of Kenya v. Erick Ndoro Chaka* (2024) highlighted procedural deficiencies in the enactment of the 2017 Rules under the Statutory Instruments Act, leading the court to find that the ban was no longer in place due to these procedural circumstances. This judicial finding underscores the necessity for the Ministry to ensure the new 2026 Rules are procedurally sound and robustly enforceable.

The proposed Public Health (Prohibition of Shisha Smoking and Waterpipe Tobacco Products) Rules, 2026, represent a concerted effort to overcome the shortcomings of previous regulations. The draft rules explicitly prohibit a wide range of activities, including the importation, manufacture, supply, distribution, promotion, sale, advertisement, display, and use of shisha and any other waterpipe tobacco product in Kenya. This comprehensive scope aims to target the entire shisha supply chain, from source to consumption.

Crucially, the new rules introduce significantly escalated penalties. For instance, a person who publishes, disseminates, distributes, or causes to be published information promoting shisha use based on a perception of reduced harm commits an offense liable to imprisonment for up to six months or a fine not exceeding Sh1 million, or both. For merely smoking, inhaling, or consuming shisha, an individual could face imprisonment for up to six months or a fine not exceeding Sh50,000, or both. These penalties are a stark increase from those previously linked to Section 163 of the Public Health Act, which were less deterrent.

The Ministry of Health's rationale for these tougher measures is rooted in compelling public health evidence. Shisha smoking is linked to significant health risks, including oral, esophageal, and lung cancers, as well as respiratory, cardiovascular, and periodontal diseases. The communal sharing of mouthpieces also facilitates the spread of communicable diseases such as tuberculosis and hepatitis. The World Health Organization (WHO) has confirmed that shisha smoke contains toxic substances, including nicotine, tar, carbon monoxide, heavy metals, and carcinogens.

In line with constitutional requirements for public participation, the Ministry of Health is currently inviting public views and conducting nationwide consultative forums on the proposed regulations. This process is critical for ensuring the legitimacy and enforceability of the final rules, especially given the procedural issues that affected the 2017 ban. The constitutional right to the highest attainable standard of health, enshrined in Article 43(1)(a) of the Constitution of Kenya, 2010, provides the overarching legal mandate for the state to implement such protective measures.

The proposed Public Health (Prohibition of Shisha Smoking and Waterpipe Tobacco Products) Rules, 2026, signify a determined effort by the Kenyan government to enforce a comprehensive ban on shisha. For legal practitioners, this development necessitates a thorough understanding of the new regulations and their implications. Businesses involved in the importation, manufacture, distribution, or sale of shisha products face substantially heightened legal risks and must immediately review their operations to ensure compliance, or face severe financial penalties and potential imprisonment.

Going forward, practitioners should closely monitor the outcome of the public participation process and the final gazettement of these rules. The enhanced penalties and broader scope of prohibited activities underscore a zero-tolerance approach to shisha. The effectiveness of these new rules will ultimately depend on robust enforcement mechanisms and sustained commitment from both national and county governments. Legal professionals will play a crucial role in advising clients on navigating this stricter regulatory landscape and potentially challenging any aspects of the rules that may be deemed unconstitutional or procedurally flawed, although the Ministry appears to be addressing past procedural deficiencies. This marks a critical juncture in Kenya's public health policy, with significant ramifications for the shisha industry and public health outcomes.