SHISHA BAN UPHELD BY HIGH COURT, JUDGE SAYS YOU CAN’T GAMBLE WITH KENYANS HEALTH.

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Senior State counsel Adow Mohamed (2nd right),with ministry of health officials (left to right) Kepha Ombacho,(Director) Pauline Ngari and Karen Sang at Milimani law courts after the court ruled that the ban on shisha to remain in force.

” I find and hold that it is the duty of state to take protective measures without having to wait until the reality seriousness of those risks are fully demonstrated or manifested ” Aburili said.

BY SAM ALFAN.

High court Court has upheld decision by former health cabinet secretary Dr. Cleopa Mailu on Shisha ban.

The decision by the court means shisha importation, manufacturing, distribution, sale and consumption remains to be illegal in the country.

” I hold and find that shisha ban imposed by the cabinet secretary, ministry of Health vide legal notice No 292 of 28 December, 2017, however irregular , shall remain in force and respondents are directed to follow the procedural requirements to the letter in regularizing the ban”ruled Judge Aburili.

The judge said the ministry through state senior counsel Adow Mohammed provided material before the court proving that shisha consumption is most likely to cause harm to public health of the country and the alleged or potential harm outweighs the economic and social gains to the traders , employees and consumers of the shisha substance.

” This case is one of those exceptional ones where public interest outweighs social and economic individual benefit ” ruled Aburili.

Justice Aburili said health being a fundamental right and funded by the state through tax payers money , it would be inimical to lift the ban and turn to tax payers to fund the consequences engaging in leisurely activities.

However, she declined to quash the notice as sought by shisha businessmen saying the well-being of Kenyans is more important than social and economic gains of the respondents.

“This is so because no country and no court of law can afford to gamble with the present and future lives and livelihood of this country in the name of fear of loss of social and economic gains , commercial enterprises go under and can be revived. Lives lost can never be revived’ said judge Aburili.

In her ruling her 63 page judgement,  Justice Roselyn Aburili however noted that the former CS did not follow the constitution when he issued a legal notice banning the smoking of Shisha.

The learned judge further noted that CS Mailu also failed to indicate to the court  of intentions of tabling the legal notice before Parliament for debate.

The court also observed that CS Mailu did not involve public and stakeholders in the Shisha business.

“Fair administrative action is a right guaranteed in the constitution,” ruled Justice Aburili.

The court however ruled that there was no evidence before to show that Shisha business is unlicensed.

The Court has now directed that the Ministry complies with the rules within 9 months.

This comes after Shisha dealers moved to court seeking suspension of the ban which they argue caused unemployment and loss of income.

In December 28, 2017, CS Mailu banned the sale and smoking of shisha in Kenya saying that anyone found guilty of contravening the control of shisha smoking rules will be “liable to a fine not exceeding Ksh.50,000 or to imprisonment for a term not exceeding six months, or both.”

The ban in Kenya became the third in the region, after Tanzania and Rwanda, to outlaw water-pipe tobacco in less than two years.

During the hearing, Dr Jackson Kioko director of medical services  in the ministry of health told the court that Shisha affects all parts of the human body particularly the vital organs such as brain , lungs heart attacks   and blockage of arteries

“Non-communicable diseases including cancer, high blood pressure stroke heart attack asthma, bronchitis and derangements of metabolism of fat and sugar which are transmitted from one person to another through shisha smoking,” says Dr.Kioko

Mr Mailu through state counsel Adom Mohammed told the court, 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.

Director of Public Health Kepha Ombacho, speaking exclusively to NairobiTimez, welcomed the court decision and said they have no interest in the business at all.

The National Environment Management Authority (NEMA) has since raided several night clubs said to be flouting operation regulations.

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