TOBACCO CONTROL LAWS

Republic of Kenya v. Erick Ndoro Chaka

The Office of Kenya’s Director of Public Prosecutions filed criminal charges against several individuals for selling or smoking shisha contrary to Kenya’s ban on the use, manufacture, sale, or offer for sale of shisha (Rule 3 of the Public Health (Control of Shisha Smoking) Rules, Section 164 of the Public Health Act).

The Court found that the ban was no longer in place due to procedural circumstances affecting its validity (the legal instrument implementing the ban did not meet the procedural requirements set by Kenya’s Statutory Instruments Act when issued). Therefore, the Court ruled that criminal charges cannot be pursued against individuals using, manufacturing, selling, or offering for sale shisha.

Republic of Kenya v. Erick Ndoro Chaka, Criminal Case E061 of 2024, Shanzu Law Courts, KEMC 6 (KLR) (28 March 2024).

  • Kenya
  • Mar 28, 2024
  • Chief Magistrate's Court at Shanzu
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Parties

Plaintiff Office of the Director of Public Prosecutions

Defendant Erick Ndoro & others

Legislation Cited

Public Health Act

Public Health (Control of Shisha Smoking) Rules, 2017

Statutory Instruments Act

Related Documents

None

Type of Litigation

Government Enforcement Action
Government, through its agencies and officials including prosecutors, may seek to enforce its health laws. For example, the government may revoke the license of a retailer that sells tobacco products to minors. These cases may also directly involve the tobacco industry, for example, a government might impound and destroy improperly labeled cigarette packs.

Tobacco Control Topics

Smoke Free Measures
Measures to reduce or eliminate exposure to tobacco smoke. (See FCTC Art. 8)

Substantive Issues

Right to Health
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
Criminal Violation
A claim of an infringement of any criminal law.
Procedural Defect
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.

Type of Tobacco Product

Hookah, shisha, and water pipes
A single or multi-stemmed instrument for vaporizing and smoking flavored tobacco (shisha or sheesha) or other products in which the vapor or smoke is passed through a water basin ‒ often glass-based ‒ before inhalation. Water pipes are known by a variety of names such as hookah, huqqah, nargilah, nargile, arghila, and qalyan.
"Such that then, there is no way the High Court, in my understanding could give life indefinitely to the rules when the statute itself requires mandatorily that there be compliance. Doing so would in my view mean bypassing Parliament, which is the body meant to legislate. It is for that reason that I find that the extension was no indefinite or infinite but was limited to the period of nine (9) months."
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