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MagistrateOtherShanzu Criminal Case No. E062 of 2024 (consolidated with E063 of 2024 and E064 of 2024)· [2024] KEMC 6 (KLR)

Republic v Chaka (Criminal Case E061, E062, E063 & E064 of 2024 (Consolidated)) [2024] KEMC 6 (KLR)

Shanzu Law Courts (Magistrates' Court)
28 March 2024
3,344 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Shanzu court freed 48 people charged over shisha because Kenya's shisha ban lapsed when the Health Ministry missed a deadline to fix defective rules.

What this practically means

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Executive summary

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In a ruling delivered sua sponte consolidating four Shanzu criminal files involving 48 accused persons charged with selling or smoking shisha contrary to Rule 3 of the Public Health (Control of Shisha Smoking) Rules, 2017 as read with Section 164 of the Public Health Act, Senior Principal Magistrate Joe Mkutu Omido declined to take the pleas, which had been deferred on 15th January 2024, and instead invited submissions on whether a valid shisha ban existed. The prosecution, relying on paragraph 138 of the High Court decision in Republic v Ministry of Health ex parte Kennedy Amdany Langat & 37 others [2018] eKLR, maintained that the ban in Gazette Notice No. 292 of 27th December 2017 remained in force because the judgment had not been disturbed on appeal or review. Defence counsel Mr. Muliro argued that the High Court had declared the Rules irregular for non-compliance with the Statutory Instruments Act, allowed them to remain in force only for nine months to permit regularization, and that the Cabinet Secretary never regularized them, so the Rules ceased to have effect. The court agreed, holding that the nine-month respite was not an indefinite extension and that, under Section 11(4) of the Statutory Instruments Act, the Rules lapsed after the regularization period expired. Consequently no offence existed at the time of the alleged acts of 14th January 2024, contravening Article 50(2)(n) of the Constitution and Section 134 of the Criminal Procedure Code. Under Section 89(5), the court refused to admit the charges, discharged all accused persons, ordered their immediate release and refund of cash bail except where already forfeited.

Key legal issues

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01

Validity of the Public Health (Control of Shisha Smoking) Rules, 2017 at the time of the alleged offences

Holding

The Rules ceased to have effect upon expiry of nine months from the High Court judgment (26th July 2018) because the Cabinet Secretary never regularized them as directed; there was therefore no valid ban on shisha in January 2024

Reasoning

The High Court found the Rules irregular for non-compliance with the Statutory Instruments Act but allowed them to remain in force for nine months to permit regularization. Reading that order with Section 11(4) of the Statutory Instruments Act, the court reasoned that an indefinite continuation would bypass Parliament, the constitutionally mandated legislator. Since nothing showed any regularization step was commenced, the extension lapsed and the Rules ceased to have effect.

p. 5
02

Whether valid charges existed against the accused persons

Holding

No valid charges existed because the offences charged did not exist in law at the time of the alleged acts, and the charge sheets failed to state a specific offence as required by Section 134 of the Criminal Procedure Code

Reasoning

Article 50(2)(n) of the Constitution bars conviction for an act or omission that was not an offence when committed. Since the shisha ban had lapsed, the offences with which the accused were charged did not exist on 14th January 2024. Further, the charge sheets lacked a statement of a specific offence, contrary to Section 134 of the Criminal Procedure Code.

p. 6
03

The remedy where a charge does not disclose an offence

Holding

The court refused to admit the charges and discharged all 48 accused persons under Section 89(5) of the Criminal Procedure Code

Reasoning

Section 89(5) requires a court that considers a complaint or formal charge does not disclose an offence to refuse to admit it and record reasons. The magistrate was persuaded to that opinion and discharged all accused persons in the four consolidated files, ordering their liberty and refund of cash bail.

p. 6

Legal principles established

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  • A statutory instrument required to be laid before Parliament ceases to have effect immediately after the last day for it to be so laid, and this consequence is mandatory
  • Where a High Court directs that irregular rules remain in force for a fixed period to allow regularization, non-regularization within that period renders the rules irregular and of no force; the respite is not an indefinite extension
  • No person may be convicted for an act or omission that was not an offence when committed, and a charge must state the specific offence with particulars

Court orders

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  1. 1.Refusal to admit the charges in all the consolidated matters, with reasons recorded, under Section 89(5) of the Criminal Procedure Code
  2. 2.Discharge of all accused persons in all the respective consolidated matters under Section 89(5) of the Criminal Procedure Code
  3. 3.Each of the 48 accused persons in the four consolidated files to be set at liberty forthwith unless otherwise lawfully detained
  4. 4.Release of the cash bail deposited by each accused person to the depositors, save where cash bail has already been forfeited to the state
  5. 5.A copy of the ruling to be placed in each of the files

Authorities

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Legislation

  • Public Health (Control of Shisha Smoking) Rules, 2017Rule 3
  • Public Health ActSection 164
  • Constitution of KenyaArticle 50(2)(n)
  • Criminal Procedure Code, Cap 75Sections 134 and 89(5)
  • Statutory Instruments ActSection 11(1), 11(4)

Cases cited (1)

  • Republic v Ministry of Health & 3 others ex parte Kennedy Amdany Langat & 37 others
    [2018] eKLR
Jurisdiction invoked
Original criminal jurisdiction under the Criminal Procedure Code, Cap 75; charges under Rule 3 of the Public Health (Control of Shisha Smoking) Rules, 2017 as read with Section 164 of the Public Health Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Chaka (Criminal Case E061, E062, E063 & E064 of 2024 (Consolidated)) [2024] KEMC 6 (KLR)", Case Analysis (2024). Shanzu Criminal Case No. E062 of 2024 (consolidated with E063 of 2024 and E064 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/6/eng@2024-03-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.