In the present case, the differentiation between shisha and cigarettes may have been based on objective criteria at the time the Shisha Rules were enacted. However, the issue is not the differentiation itself, but the continued enforcement of a ban that no longer exists. The Respondents are treating shisha differently from other tobacco products by enforcing a ban that has ceased to have effect. This differential treatment is not based on any valid law. It is arbitrary and unreasonable. The Respondents are therefore violating the Petitioner's members' right to equality and freedom from discrimination under Article 27.
On the alleged violation of Article 40 (right to property), the Court must balance the right to property with the State's duty to protect public health. The right to property is not absolute. Article 24 allows for the limitation of rights by law, and the limitation is reasonable and justifiable in an open and democratic society. However, the limitation must be by law. The Shisha Rules are no longer law. The enforcement of the ban is therefore not based on law. The deprivation of property through raids, confiscation of goods, and closure of premises is arbitrary and unlawful. It violates Article 40.
An association representing manufacturers, traders and sellers of shisha and other novel tobacco products challenged the continued enforcement of Kenya's shisha ban.
The association argued that the shisha ban (as established by the Public Health (Control of Shisha Smoking) Rules, 2017) had lapsed, because the Cabinet Secretary did not properly enact the ban within a nine month period which had been ordered by the High Court in 2018. In contrast, the Ministry of Health argued that the ban had been upheld on public health grounds by both the High Court and the Court of Appeal.
The High Court granted the association’s petition. The Court held that the shisha ban ceased to have effect on 26 April 2019, nine months after the 2018 High Court judgment. The Court declared that the continued enforcement of the ban was unlawful and found various violations of the Constitution. The Court also ordered the government to stop enforcing notices against the association's members, but refused a separate request to hold the Health Cabinet Secretary in contempt for ignoring the 2018 order.