GAVEL
The Kenya Maritime Authority has won a decisive legal battle after the High Court in Mombasa dismissed a petition challenging the legality of key Merchant Shipping Regulations and the Tariff Framework guideline introduced in 2024.
Justice Olga Sewe upheld the regulations and guidelines, ruling that the Cabinet Secretary for Mining, Blue Economy and Maritime Affairs, together with KMA, had acted within their legal mandate and complied with constitutional and statutory requirements.
The case, in which the Kenya Ships Agents Association (KSAA) had sued the CS, KMA and others, sought to invalidate Legal Notice numbers 90, 91, 92 and 94 of 2024.
The notices covered areas such as maritime labour, collision prevention, transport operators, load lines, tonnage measurement and recognised organisations.
The KSAA had argued that there had been inadequate public participation and that the new rules imposed unfair financial and operational burdens on stakeholders.
The association also took issue with KMA’s Tariff Framework Guideline, claiming it was a statutory instrument that required approval under the Statutory Instruments Act.
In her decision delivered September 19, Sewe said that the tariff framework did not amount to a statutory instrument, but was instead an administrative guideline to help Maritime Transport Operators review and file tariffs under the Merchant Shipping (Maritime Transport Operators) Regulations, 2024.
“In my considered view, the impugned Tariff Framework is not a statutory instrument as contemplated under Section 2 of the Statutory Instruments Act, as it is only a guideline on the implementation of the Merchant Shipping Act and the Merchant Shipping (Maritime Transport Operators) Regulations, 2024. There was, therefore, no requirement for compliance with the Statutory Instruments Act.”
The
judge also further found that the regulatory process was transparent and
participatory, noting that KSAA itself had been invited to public participation
forums through letters dated December 7, 2021, and January 28, 2022.
Reports from these workshops were also made publicly available, according to the court documents.
On the issue of fair administrative action, the court rejected KSAA’s claim that the regulations insulated the KMA director general from accountability.
Justice Sewe said that Regulation 16 of the Maritime Transport Operators Regulations provides for review mechanisms, and that several provisions under the Merchant Shipping Act subject the Director General’s powers to judicial scrutiny.
“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,” the judge said.
“The Amended Petition dated September19, 2024
lacks merit and therefore the petitioner is not entitled to any of the reliefs
sought. Consequently, its Petition as amended is hereby dismissed.”
The decision marks a major turning point in Kenya’s maritime governance, according to KMA.
Past efforts by KMA to regulate service providers have faced setbacks, including the nullification of the Merchant Shipping (Maritime Service Providers) Regulations in 2012 and the striking down of Section 16 of the Merchant Shipping Act in 2010.
Resistance has largely come from dominant global players in the shipping industry, especially those engaged in vertically integrated operations, according to KMA.
With this ruling, KMA is now empowered to proceed with enforcing regulations that are expected to raise safety and labour standards, ensure fair competition, reduce the cost of doing business and promote investment in Kenya’s maritime and logistics sectors.
The regulations also open more opportunities for Kenyan professionals through skills transfer and capacity building in line with the blue economy agenda and Vision 2030.
Instant analysis:
The Mombasa High Court’s dismissal of the Kenya Ships Agents Association petition is a watershed moment for Kenya’s maritime regulation. For years, dominant global players have resisted oversight, successfully challenging earlier frameworks. The judgment strengthens KMA’s mandate to enforce safety, fair competition and labour standards.
