The Kenya Shipping Agents Association suffered a setback after the High Court dismissed its petition to block the implementation of the Merchant Shipping Regulations, 2024.
The regulations, which relate to maritime labour, maritime transport operators (MTO), load lines, tonnage measurement, recognised organisations and prevention of collision, were activated by Hassan Joho, the Cabinet Secretary for Mining, Blue Economy and Maritime Affairs Hassan Joho.
Justice Olga Sewe ruled that the regulations were passed in accordance with the applicable law and that association’s contention that they were unconstitutional, null, and void was untenable.
“The court has observed that the process of formulating the regulations was not only transparent but also participatory,” the judge ruled.
Apart from the CS, the association had also sued the Kenya Maritime Authority (KMA), the Attorney-General, and the National Assembly. It named the Kenya Groupage Cargo Handling Association as an interested party.
In its petition, it sought the court’s intervention and redress over the publication of an undated introduction and review of the Tariff Framework published by KMA on its website in August last year.
The shipping association also sought a declaration that the regulations were issued ultra vires (beyond legal powers) to the power of the Cabinet Secretary under the Merchant Shipping Act 2009, therefore null and void.
Justice Sewe noted that the association was informed of the various public participation workshops and was requested to assist in sensitising its members to submit their views; thus, the right to be heard was provided, and feedback was given through a detailed report on KMA’s website.
“A perusal of the MTO Regulations also reveals that it has an inbuilt complaint mechanism,” ruled Justice Sewe.
The judge added that she was satisfied that not only was public participation conducted in relation to the regulations, but it was adequate in the circumstances.
Justice Sewe further ruled that KMA director-general’s decision, far from being insulated from scrutiny, is subject to the safeguards of review, accountability, and judicial oversight.
“The inescapable conclusion to draw, therefore, is that there is no proof that the respondents acted ultra vires (beyond legal powers) or in violation of the petitioner’s constitutional rights,” ruled Justice Sewe.
The judge further ruled that the impugned tariff Framework is not a statutory instrument as contemplated under the Statutory Instruments Act, as it is only a guideline on the implementation of the Merchant Shipping Act and the Merchant Shipping Regulations.
“It gives guidelines to any MTO seeking to review their tariffs. There was therefore no requirement for compliance with the Statutory Instruments Act,” ruled Justice Sewe.
The shipping association had argued that the promulgation of the regulations had caused and continued to cause it and its members to suffer prejudice.
It wanted a declaration issued that the Merchant Shipping Regulations 2024 are unconstitutional, null, and void for violating the constitution.
It also argued that the lack of meaningful public participation was alarming, given that the regulations are far-reaching, wide, and sweep across the entire maritime industry.
“In effect, the impugned regulations amount to a regulatory overhaul of the maritime industry in Kenya,” part of the petition stated.
The AG, on behalf of the CS and KMA, who had sought the dismissal of the petition, told the court that public participation was undertaken before the formulation of the regulations.
They also argued that the regulations were developed in an open and transparent manner and that members of the public and stakeholders were afforded an opportunity to participate in the public participation engagements.
The National Assembly argued that the Committee on Delegated Legislation was satisfied with the extent and quality of public participation conducted and proceeded to approve the regulations.
The National Assembly also told the court that the Committee had subjected the regulations to the test specified in the Statutory Instruments Act and ensured that they were compliant.
