The Kenya Ships Agents Association (KSAA) has lost its attempt to block the implementation of the Merchant Shipping Regulations, 2024, after the High Court ruled that the rules were legally adopted and valid.
The case was determined by Justice Olga Sewe, who held that the regulations, activated by Mining, Blue Economy and Maritime Affairs Cabinet Secretary Hassan Joho, were formulated in line with the law.
She dismissed KSAA’s claims that the regulations were unconstitutional, null, and void, stating that they had been developed through a transparent and participatory process.
“The court has observed that the process of formulating the regulations was not only transparent but also participatory,” Justice Sewe ruled.
The regulations cover areas including maritime labour, maritime transport operators (MTO), load lines, tonnage measurement, recognized organizations, and prevention of collision.
Apart from the Cabinet Secretary, KSAA had also sued the Kenya Maritime Authority (KMA), the Attorney General, and the National Assembly, while the Kenya Groupage Cargo Handling Association was listed as an interested party.
KSAA’s petition had asked the court to declare that the rules were issued beyond the legal powers of the Cabinet Secretary under the Merchant Shipping Act of 2009.
The association also challenged an undated introduction and review of the Tariff Framework published by KMA on its website in August last year.
Justice Sewe ruled that KSAA had been notified of the public participation workshops and invited to mobilise its members to present their views. She said feedback was consolidated in a detailed report made available on KMA’s website.
“A perusal of the MTO Regulations also reveals that it has an inbuilt complaint mechanism,” the judge stated, adding that she was satisfied that adequate public participation had been conducted.
She further noted that decisions made by the KMA director general remain subject to review, accountability, and judicial oversight. “The inescapable conclusion to draw, therefore, is that there is no proof that the respondents acted ultra vires or in violation of the petitioner’s constitutional rights,” Justice Sewe ruled.
On the tariff framework, Justice Sewe held that it does not qualify as a statutory instrument under the Statutory Instruments Act. “It gives guidelines to any MTO seeking to review their tariffs; there was therefore no requirement for compliance with the Statutory Instruments Act,” she concluded.