' [1] The petitioner, Kenya Ships Agents Association, is a non-profit company limited by guarantee. In its Petition dated 2 nd September 2024, it averred that it was established for the purpose of promoting ethical business and best practices and to facilitate seaborne trade among other objects. Its membership is drawn from various maritime service providers, including shipping lines and shipping agents operating in Kenya.
[2] The 1 st respondent is the Cabinet Secretary in the Ministry of Mining, Blue Economy and Maritime Affairs. It was sued as the 1 st respondent herein because it promulgated the impugned Regulations, the subject of this Petition. The 2 nd respondent, Kenya Maritime Authority, is a public body established under Section 3 of the Kenya Maritime Authority Act, 2006. Its mandate is to monitor, regulate and coordinate activities in the maritime industry. The 3 rd respondent is the Hon. Attorney General, the principal legal adviser to the Government of Kenya. Hence, the 1 st , 2 nd and 3 rd respondents were herein represented by counsel from the Office of the Attorney General.
[3] The National Assembly was also joined to the Petition as the 4 th respondent vide the Amended Petition dated 19 th September 2024 upon leave to that effect being granted on 18 th September 2024. The petitioners also impleaded, as an interested party, Kenya Groupage Cargo Handling Association; an association registered under the Societies Act, Cap 108. The petitioner averred that the interested party was established to represent and advocate for the interests of members licensed as ship agents of non-vessel operating common carriers in Kenya.
[4] The petitioner set out the brief background of its case in paragraphs 11 to 35 of the Amended Petition. It averred that, vide a letter dated 11 th November 2021, the 2 nd r espondent wrote the stakeholders in the maritime industry, including the petitioner, informing them of the intended promulgation of the Maritime Laws (Amendment) Bill, 2021 ("the Bill") and the Merchant Shipping (Maritime Transport Operators) Regulations, 2021 ("the Draft MTO Regulations"). The stakeholders were thereby invited to give their views, as industry players, on the proposed Bill and the Draft MTO Regulations. The stakeholders were also requested to nominate one representative each to attend the workshop that would take place on 23 rd November 2021 at Mombasa Beach Hotel.
[5] The petitioner further averred that in line with the invitation, it nominated its Chief Executive Officer, Mr. Juma Tellah , to attend the stakeholder engagement session. The petitioner further averred that it submitted to the 2 nd Respondent an extensive dossier dated 6 th December 2021 comprising feedback, objections and comments to the Bill and the Draft MTO Regulations. The petitioner added that, since then, it has never received any feedback from the 2 nd respondent or any of the other respondents herein on either its dossier or the Bill or the Draft MTO Regulations.
[6] The petitioner further stated in its Petition that it became aware of a so-called "report" (hereinafter, “the 1 st Report”) on the 2 nd respondent''s website purportedly responding to comments and concerns raised with respect to the Draft MTO Regulations, though labelled "2022" rather than "2021". They posited that the 1 st respondent thereby gave the wrong notion that the stakeholder engagement took place in 2022, which is not the case. In particular, the petitioner was aggrieved that >>><><>[> >> > >>>>>>> ><><>[> >>>>>>><><>[> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[> >>>> > > ><><>[> >>>>><><>[> >>>>>> >> ><><>[>>>>>>>><><>< >[> >>>>>>><><>[> >> ><><>[> >>>>>> >>>>>><><>[> >>>> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[>>> >>><><>[> ><><>[> ><><>[> >>><><>[> >>><><>[> >>>> ><><>[>><><>[> ><><>[> >>, >>, >> >> >> ><> <><>[> >>, >>, >> >>, >> >> > ><><>[> >> >> >> >> >> >> >> ><><>[> >> >> >> >> >> ><>>> >> >>>> ><><>[>>> >> >> >> >> >> >> >> ><><>[> >> >> >> >> >> >> >> >> >> ><><>[> >> >> >> >> >> >> >> >> >> >>. <><>[> >> >> ><><>[> ><><>[> ><><>[> ><><>[> >> >> ><><>[> >> [>> [>> <>& > [><><>[> >> ><><>[> >> >> >> >> ><><>[>>> >> >> ><><>[> >> >> <>> >> [>> [><><>[> >> ><><>[> >> ><><>[>>>, >> >> >> >>. ><><>[> >>, >> >> >> >> >> ><><>[>>> >> >> >> >>, >> >> ><><>[>>>, >>, >> >> >> ><><>[> >>, >> >> >> (> > > [><><>[> >>, >> >> >> [><><>[> >>, >> >> >> ><><>[> >>, >> >> >>[><><>[>>> >> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[>><><>[>>> >> >> ><><>[> >> >> (>> [><><>[>>> >> >> (><><>“><><>[> >> >> ><><>[> >> >> [>> [><><>[>>> >> >> >> ><><>[> >> >> >> ><><>[> >> >> >> ><><>[> >> >> >> ><><>[>>> >> ><><>[> ><><>[> ><><>[> >>><><>[> ><><>[> ><><>[>>> ><><>[>><><>[>><><>><><>[> > href="http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution" target="_blank">the Constitution , enacts, applies or interprets any law; or makes or implements public policy decisions to facilitate public participation. In the same vein, Article 118 of the Constitution provides that:
(1) Parliament shall—
(a) conduct its business in an open manner, and its sittings and those of its committees shall be in public; and
(b) facilitate public participation and involvement in the legislative and other business of Parliament and its committees.
[56] It is plain therefore that failure to facilitate public participation is fatal to any legislation passed or approved by Parliament. It needs no mention that legislation in this context includes subsidiary legislation. The Supreme Court in the case of British American Tobacco Kenya, PLC formerly British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) (26 November 2019) (Judgment) , held:
“85. Public participation has been entrenched in our Constitution as a national value and a principle of governance under Article 10 of the Constitution and is binding on all State organs, State officers, public officers and all persons whenever any of them: (a) applies or interprets the Constitution ; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. As aptly stated by the Appellate Court, public participation is anchored on the principle of the Sovereignty of the People “that permeates the Constitution and in accordance with Article 1(4) of the Constitution is exercised at both national and county levels”.
[57] In Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) (Constitutional Petition E473 of 2023) [2024] KEHC 8255 (KLR) (Constitutional and Human Rights) (12 July 2024) (Judgment) the guiding principles on public participation flowing from the British American Tobacco case (supra) as follows: -
“As a Constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.
i.The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
ii.The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this Constitutional principle using reasonable means.
iii.Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a Constitutional requirement. There is need for both quantitative and qualitative components in public participation.
iv.Public participation is not an abstract notion; it must be purposive and meaningful.
v.Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.
vi.Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.
vii.Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.
viii.Components of meaningful public participation include the following:
a.clarity of the subject matter for the public to understand;
b.structures and processes (medium of engagement) of participation that are clear and simple;
c.opportunity for balanced influence from the public in general;
d.commitment to the process;
e.inclusive and effective representation;
f.integrity and transparency of the process;
g.capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter”.
[58] With regard to the MTO Regulations, it is common ground that stakeholder engagement was conducted by the 2 nd respondent. The petitioner conceded as much at paragraphs 2 and 3 of the Supporting Affidavit sworn by its Chief Executive Officer, Mr. Juma Ali Tellah . It also annexed to that affidavit copies of the letters sent by the 2 nd respondent informing the petitioner and its members, among other stakeholders, of the proposed Draft MTO Regulations and inviting their views. The petitioner conceded that it responded by nominating its Chief Executive Officer, who attended and submitted to the 2 nd Respondent a comprehensive dossier dated 6 th December 2021 that comprised of feedback, objections and comments in respect of the Draft Bill and the MTO Regulations. A copy thereof was annexed to the petitioner’s Supporting Affidavit and marked “C”.
[59] Besides, as pointed out by the respondents, the public engagement documents were exhibited herein as annexures to the respondents’ respective Replying Affidavits. Accordingly, in respect of the MTO Regulations, the petitioner’s contention is not that there were not stakeholder consultations; but that it was inadequate. It is however noteworthy that the petition acknowledged that its views were taken into account; but was aggrieved by the fact that its 37-page dossier was reduced to a single paragraph in the report published by the 2 nd respondent in its website. There is also the uncontroverted averment by the 4 th respondent that its Committee on Delegated Legislation had the opportunity of reconsidering the MTO Regulations and satisfying itself that public participation was undertaken.
[60] I have taken into account the fact that the petitioner placed heavy reliance on the National Assembly v Okiya Omtatah Okoiti & 55 others (supra) in which the Court of Appeal pointed out that:
187. Accountability, one of the principles in article 10(2)(c) means that officials must explain the way in which they have used their power. Transparency, also a requirement in the exercise of public power means openness, which is the opposite of secrecy. Therefore, the constitutional requirement for transparency and accountability imposes an obligation upon State organs to inform the general public and stakeholders why their views were not taken into account and why the views of some of the stakeholders were preferred over theirs. Such an approach will not only enhance accountability in the decision making processes by State organs but also it will enhance public confidence in the processes and in our participatory democracy. To suggest otherwise would be a serious affront to article 10(2).
188. Public participation is not an inconsequential process or a sheer formality. the Constitution embraces a radical form of participatory democracy. For instance, it recognizes the importance of participatory democracy in the context of meaningful public engagement in governance and decision making processes including enactment of legislation and formulation of policies which affect their rights and day to day lives. It would be strange indeed if the principles of participatory democracy and consultation are to operate only when the public are invited to give their views, then they vanish at the crucial stage when the general principles of the original statute are being converted into operational standards and procedures, only to re- surface at the stage of the implementation of the provisions impacting on specific individuals without any explanation as to why their views were rejected.
189. If, as we have found to be the case, the justification for public participation is to facilitate public involvement as a crucial aspect of participatory democracy and legitimacy, vesting in Parliament arbitrary power to reject or ignore the contribution from the public without explanation or justification is the surest way of undermining public participation. Insulating Parliament from the obligation to give reasons or justification for rejecting the views of the public is the surest way of rendering public participation illusory, cosmetic and a mere formality or public relations exercise, which the Supreme Court and this court have loudly declared it is not.
190. Therefore, when determining whether public participation as a prerequisite to the determination of policy by a State organ has been complied with, one must ascertain whether the public participation has been done in a manner that rationally connects the consultation with the constitutional purpose of accountability, responsiveness and transparency. We see no superimposed judicial stratagem of undermining separation of powers by upholding the explicit provisions of transparency and accountability prescribed in article 10(2)(c). Accordingly, we find that Parliament after conducting public participation is obligated to give reasons for rejecting or adopting the proposals received. The import of this finding is that the ensuing Act offended article 10(1) and (2)(c). it is therefore our conclusion that failure to adhere to the dictates of article 10(1) and (2) (c) renders the process leading to the enactment of the Act flawed.
[61] It is notable however that the Court of Appeal rendered its decision on 31 st July 2024 long after the public participation exercise had been conducted and three months after the Regulations were operationalized. Therefore, the respondents did not have the benefit of and guidance given in the decision of the Court of Appeal when the impugned Regulations were formulated.
[62] In respect of the other 6 Regulations, namely, the Merchant Shipping (Maritime Labour) Regulations, 2024, the Merchant Shipping (Maritime Transport Operators) Regulations, 2024, the Merchant Shipping (Load Lines) Regulations, 2024, the Merchant Shipping (Tonnage Measurement) Regulations, 2024, the Merchant Shipping (Recognised Organisations) Regulations 2024 and the Merchant Shipping (Prevention of Collision) Regulations, 2024, the respondents demonstrated that similar stakeholder engagements were held. To this end they relied on the documents at pags 78 to 112 of the 4 th respondent’s Replying Affidavit.
[63] Indeed, the petitioner conceded that, by a letter dated 5 th April 2022, the 2 nd respondent communicated its intention to transpose into Kenyan law, through regulations, the various maritime conventions ratified by Kenya. The petitioner deposed that it opted not to participate in the stakeholder meeting held on 14 th April 2022 since the proposed regulations did not affect its members. It added that, in any case, its members’ operations were already aligned with the international conventions in question.
[64] Hence, it must be underscored that public participation does not necessarily mean that everyone must express their opinions. Instead, it suffices that a purposeful initiative to incorporate a variety of perspectives in the participation programme; and that this can be demonstrated by way of credible evidence. This was made clear in the case of Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others [2015] eKLR, in which a 5 judge bench held:
“…public participation does not dictate that everyone must give their views on an issue of environmental governance. To have such a standard would be to give a virtual veto power to each individual in the community to determine community collective affairs…Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or Public Official must take into account the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account…”
[65] In the South African case of Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (supra) it was held that:
“[t]he principles of fairness are not to be applied by rote identically in every situation.” It cannot be expected of the law-maker that a personal hearing will be given to every individual who claims to be affected by regulations that are being made. What is necessary is that the nature of the concerns of different sectors of the public should be communicated to the law-maker and taken into account in formulating the regulations.
[66] From the above precedents on public participation, certain guiding principles emerge. Public participation is a constitutional imperative under Article 10 , binding on all state organs and officers whenever laws or policies are being made. It is the duty of the authority formulating the regulations to facilitate such participation using reasonable means, regardless of the absence of a rigid framework. The process must be genuine, inclusive, and meaningful, not a mere formality. While it does not require every individual to personally give their views, there must be clear evidence that diverse stakeholders were given adequate notice and a fair opportunity to contribute. Ultimately, the validity of a participation process depends on its reasonableness in the circumstances, its inclusivity, and whether the concerns raised were considered in good faith.
[67] Thus, public participation requires that stakeholders be afforded a fair opportunity to engage in the legislative process. Once such an opportunity is provided, a party who deliberately declines to participate cannot later claim exclusion. The duty of the regulatory - authority is to facilitate participation, not to compel it; thus, refusal to engage bars a stakeholder from alleging lack of public participation; and I am satisfied that not only was public participation conducted in the case of the impugned Regulations, but also that it was adequate in the circumstances.
B. Whether the impugned Regulations comply with the requirements of the Statutory Instruments Act:
[68] The petitioner contended that, in enacting the impugned Regulations, the respondents failed to comply with Section 5 of the Statutory Instruments Act , which, inter alia , mandates consultation with relevant stakeholders through public participation. The respondents, however, disputed this claim, asserting that they had indeed conducted public participation in accordance with the law and it is the Petitioner who chose not to participate as had been communicated.
[69] Section 5 of the Statutory Instruments Act , states as follows:
(1) Before a regulation-making authority makes a statutory instrument, and in particular where the proposed statutory instrument is likely to—
(a) have a direct, or a substantial indirect effect on business; or
(b) restrict competition;
the regulation-making authority shall make appropriate consultations with persons who are likely to be affected by the proposed instrument.
(2) In determining whether any consultation that was undertaken is appropriate, the regulation making authority shall have regard to any relevant matter, including the extent to which the consultation—
(a) drew on the knowledge of persons having expertise in fields relevant to the proposed statutory instrument; and
(b) ensured that persons likely to be affected by the proposed statutory instrument had an adequate opportunity to comment on its proposed content.
(3) Without limiting by implication the form that consultation referred to in subsection (1) might take, the consultation shall—
(a) involve notification, either directly or by advertisement, of bodies that, or of organizations representative of persons who, are likely to be affected by the proposed instrument; or
(b) invite submissions to be made by a specified date or might invite participation in public hearings to be held concerning the proposed instrument.
[70] Hence, Section 5 of the Statutory Instruments Act places a mandatory obligation upon a regulation-making authority to conduct appropriate consultations with stakeholders prior to enacting any statutory instrument. This duty becomes particularly critical where the proposed instrument is likely to have a direct or substantial indirect effect on business, or where it may restrict competition. The section further provides guidance on what constitutes appropriate consultation, requiring the process to draw on the expertise of persons with relevant knowledge and ensure that those likely to be affected are accorded an adequate opportunity to comment on the proposed instrument.
[71] More importantly, the provision requires that notification, either directly or by advertisement, be given to bodies or organizations likely to be affected by the proposed instrument; that submissions be invited to be made by a specified date or the convening of public hearings. In essence, the Act underscores the principle of participatory governance by ensuring that those affected by delegated legislation are not only informed but also meaningfully involved in the law-making process.
[72] Section 5A of the Statutory Instruments Act, on the othere hand, provides that:
( 1) Every statutory instrument shall be accompanied by an explanatory memorandum which shall contain—
(a) a statement on the proof and demonstration that sufficient public consultation was conducted as required under Articles 10 and 118 of the Constitution;
(b) a brief statement of all the consultations undertaken before the statutory instrument was made;
(c) a brief statement of the way the consultation was carried;
(d) an outline of the results of the consultation;
(e) a brief explanation of any changes made to the legislation as a result of the consultation.
[73] The respondents demonstrated, vide their Replying Affidavits and the annexures thereto, that there was due compliance with the above provisions. In particular, the 4 th respondents Replying Affidavit is manfiest at pages 11 to 36 (Annexure SN-2) that an explanatory memorandum was indeed prepared and forwarded as by law required. In addition, at pages 37 to 75 of the 4 th respondent’s Replying Affidavit (Annexure SN-3) compliance with Section 6 of the Statutory Instruments Act was proved in respect of the MTO Regulations. Section 6 provides that:
“If a proposed statutory instrument is likely to impose significant costs on the community or a part of the community, the regulation making authority shall, prior to making the statutory instrument, prepare a regulatory impact statement about the instrument.”
[74] In response, the 1 st , 2 nd and 3 rd Respondents also indicated that they complied with the provisions of the Statutory Instrument Act and that a Regulatory Impact Statement was prepared for the proposed MTO Regulations and Gazetted in the Kenya Gazette under Gazette Notice No. 10867 as required by Sections 7 and 8 of the Act. As for the other Regulations, it is manifest from the evidence presented by the respondents that they fall within the exception provided under Section 9 of the Statutory Instruments Act , and were, therefore, also compliant. The provision states:
A regulatory impact statement need not be prepared for a proposed statutory instrument if the proposed legislation only provides for, or to the extent it only provides for—
(a) a matter that is not of a legislative character, including, for example, a matter of a machinery, administrative, drafting or formal nature;
(b) a matter that does not operate to the disadvantage of any person (other than a government entity) by—
(i) decreasing the person’s rights;
(ii) imposing liabilities on the person;
(c) an amendment of statutory instrument to take account of the prevailing Kenyan legislative drafting practice;
(d) the commencement of an Act or subordinate legislation or a provision of an Act or statutory instrument;
(e) an amendment of statutory instrument that does not fundamentally affect the legislation’s application or operation;
(f) a matter of a savings or transitional character;
(g) a matter arising under legislation that is substantially uniform or complementary with legislation of the National Government or any County;
(h) a matter advance notice of which would enable someone to gain unfair advantage;
(i) an amendment of a fee, charge or tax consistent with announced government policy.
[75] Moreover, at paragraph 10 of its Supporting Affidavit, the petitioner deposed that its members are already compliant with the transposed Regulations. For the foregoing reasons, I am satisfied that there was compliance with the Statutory Instruments Act.
C. Whether the Tariff Framework published by the 2 nd respondent has statutory basis:
[76] The petitioner took issue with the Tariff Framework published by the 2 nd respondent. Its contention was that the Tariff Framework is an order, direction or guideline for purposes of Section 2 of the Statutory Instrument Act and had to treated as such; something that was not done by the respondents. Section 2 of the Statutory Instrument Act provides:
"statutory instrument" means any rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued.”
[77] A look at Regulation 11 of the MTO Regulations shows that a licenced operator must comply with the conditions set out in the Fourth Schedule. The Fourth Schedule on its part requires that MTOs must apply the tariff filed with the 2nd respondent and must notify the 2nd respondent of any changes within the framework set out by the 2nd respondent. There is no indication that the Tariff Framework introduced new legal or regulatory requirements outside the scope of what had already been provided for in the Regulations.
[78] I am fortified in this finding by the position taken in the case of Republic v Attorney General; Law Society of Kenya (Interested Party); Ex-parte: Francis Andrew Moriasi [2019] KEHC 7013 (KLR) , with which I agree, that:
“26. From the definition given above of statutory instruments, and the powers granted to the Respondent, it is therefore the case that not all the guidelines, orders, or directions given by the Respondent are legislative in character and therefore statutory instruments. There may be guidelines and directions that are purely executive in character, in the sense that their objectives are solely administrative in guiding implementation of standards in laws and policies.”
[79] 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. It gives guidelines to any Maritime Transport Operator seeking to review their tariffs. There, was, therefore, no requirement for compliance with the Statutory Instruments Act.
D. Whether the impugned Regulations contravene the petitioner’s right to fair administrative action:
[80] Having found that the impugned Regulations were passed in accordance with the applicable law, the petitioner’s contention that the Regulations are unconstitutional, null and void, is untenable. The Court has observed herein above tht the process of formulating the Regulations was not only transparent, but also participatory. The petitioner was specifically informed of the various public participation workshops via the letters dated 7 th December 2021 and 28 th January 2022; and was requested to assist in sensitizing their members to submit their views. The right to be heard was therefore provided and feedback given through detailed reports published on the 2 nd respondent’s website.
[81] A perusal of the MTO Regulations also reveals that it has inbuilt complaint mechanism. Regulation 16 of the Merchant Shipping (Maritime Transport Operators) Regulations, 2024 provides:
Any person aggrieved by the decision of the Director General, under these Regulations may apply for a review of that decision in accordance with the provisions of Part XX of the Act.
[82] This Court is not persuaded that the Director General’s powers are absolute or beyond review. On the contrary, Regulation 16 of the Merchant Shipping (Maritime Transport Operators) Regulations, 2024 , read with Part XX of the Merchant Shipping Act , clearly subjects such decisions to legal scrutiny. By way of illustration, where the Director General suspends or revokes a licence of a maritime transport
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[2] The 1 st respondent is the Cabinet Secretary in the Ministry of Mining, Blue Economy and Maritime Affairs. It was sued as the 1 st respondent herein because it promulgated the impugned Regulations, the subject of this Petition. The 2 nd respondent, Kenya Maritime Authority, is a public body established under Section 3 of the Kenya Maritime Authority Act, 2006. Its mandate is to monitor, regulate and coordinate activities in the maritime industry. The 3 rd respondent is the Hon. Attorney General, the principal legal adviser to the Government of Kenya. Hence, the 1 st , 2 nd and 3 rd respondents were herein represented by counsel from the Office of the Attorney General.
[3] The National Assembly was also joined to the Petition as the 4 th respondent vide the Amended Petition dated 19 th September 2024 upon leave to that effect being granted on 18 th September 2024. The petitioners also impleaded, as an interested party, Kenya Groupage Cargo Handling Association; an association registered under the Societies Act, Cap 108. The petitioner averred that the interested party was established to represent and advocate for the interests of members licensed as ship agents of non-vessel operating common carriers in Kenya.
[4] The petitioner set out the brief background of its case in paragraphs 11 to 35 of the Amended Petition. It averred that, vide a letter dated 11 th November 2021, the 2 nd r espondent wrote the stakeholders in the maritime industry, including the petitioner, informing them of the intended promulgation of the Maritime Laws (Amendment) Bill, 2021 ("the Bill") and the Merchant Shipping (Maritime Transport Operators) Regulations, 2021 ("the Draft MTO Regulations"). The stakeholders were thereby invited to give their views, as industry players, on the proposed Bill and the Draft MTO Regulations. The stakeholders were also requested to nominate one representative each to attend the workshop that would take place on 23 rd November 2021 at Mombasa Beach Hotel.
[5] The petitioner further averred that in line with the invitation, it nominated its Chief Executive Officer, Mr. Juma Tellah , to attend the stakeholder engagement session. The petitioner further averred that it submitted to the 2 nd Respondent an extensive dossier dated 6 th December 2021 comprising feedback, objections and comments to the Bill and the Draft MTO Regulations. The petitioner added that, since then, it has never received any feedback from the 2 nd respondent or any of the other respondents herein on either its dossier or the Bill or the Draft MTO Regulations.
[6] The petitioner further stated in its Petition that it became aware of a so-called "report" (hereinafter, “the 1 st Report”) on the 2 nd respondent''s website purportedly responding to comments and concerns raised with respect to the Draft MTO Regulations, though labelled "2022" rather than "2021". They posited that the 1 st respondent thereby gave the wrong notion that the stakeholder engagement took place in 2022, which is not the case. In particular, the petitioner was aggrieved that >>><><>[> >> > >>>>>>> ><><>[> >>>>>>><><>[> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[> >>>> > > ><><>[> >>>>><><>[> >>>>>> >> ><><>[>>>>>>>><><>< >[> >>>>>>><><>[> >> ><><>[> >>>>>> >>>>>><><>[> >>>> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[>>> >>><><>[> ><><>[> ><><>[> >>><><>[> >>><><>[> >>>> ><><>[>><><>[> ><><>[> >>, >>, >> >> >> ><> <><>[> >>, >>, >> >>, >> >> > ><><>[> >> >> >> >> >> >> >> ><><>[> >> >> >> >> >> ><>>> >> >>>> ><><>[>>> >> >> >> >> >> >> >> ><><>[> >> >> >> >> >> >> >> >> >> ><><>[> >> >> >> >> >> >> >> >> >> >>. <><>[> >> >> ><><>[> ><><>[> ><><>[> ><><>[> >> >> ><><>[> >> [>> [>> <>& > [><><>[> >> ><><>[> >> >> >> >> ><><>[>>> >> >> ><><>[> >> >> <>> >> [>> [><><>[> >> ><><>[> >> ><><>[>>>, >> >> >> >>. ><><>[> >>, >> >> >> >> >> ><><>[>>> >> >> >> >>, >> >> ><><>[>>>, >>, >> >> >> ><><>[> >>, >> >> >> (> > > [><><>[> >>, >> >> >> [><><>[> >>, >> >> >> ><><>[> >>, >> >> >>[><><>[>>> >> ><><>[> ><><>[> ><><>[> ><><>[> ><><>[>><><>[>>> >> >> ><><>[> >> >> (>> [><><>[>>> >> >> (><><>“><><>[> >> >> ><><>[> >> >> [>> [><><>[>>> >> >> >> ><><>[> >> >> >> ><><>[> >> >> >> ><><>[> >> >> >> ><><>[>>> >> ><><>[> ><><>[> ><><>[> >>><><>[> ><><>[> ><><>[>>> ><><>[>><><>[>><><>><><>[> > href="http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution" target="_blank">the Constitution , enacts, applies or interprets any law; or makes or implements public policy decisions to facilitate public participation. In the same vein, Article 118 of the Constitution provides that:
(1) Parliament shall—
(a) conduct its business in an open manner, and its sittings and those of its committees shall be in public; and
(b) facilitate public participation and involvement in the legislative and other business of Parliament and its committees.
[56] It is plain therefore that failure to facilitate public participation is fatal to any legislation passed or approved by Parliament. It needs no mention that legislation in this context includes subsidiary legislation. The Supreme Court in the case of British American Tobacco Kenya, PLC formerly British American Tobacco Kenya Limited v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) (26 November 2019) (Judgment) , held:
“85. Public participation has been entrenched in our Constitution as a national value and a principle of governance under Article 10 of the Constitution and is binding on all State organs, State officers, public officers and all persons whenever any of them: (a) applies or interprets the Constitution ; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. As aptly stated by the Appellate Court, public participation is anchored on the principle of the Sovereignty of the People “that permeates the Constitution and in accordance with Article 1(4) of the Constitution is exercised at both national and county levels”.
[57] In Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) (Constitutional Petition E473 of 2023) [2024] KEHC 8255 (KLR) (Constitutional and Human Rights) (12 July 2024) (Judgment) the guiding principles on public participation flowing from the British American Tobacco case (supra) as follows: -
“As a Constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.
i.The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
ii.The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this Constitutional principle using reasonable means.
iii.Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a Constitutional requirement. There is need for both quantitative and qualitative components in public participation.
iv.Public participation is not an abstract notion; it must be purposive and meaningful.
v.Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.
vi.Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.
vii.Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.
viii.Components of meaningful public participation include the following:
a.clarity of the subject matter for the public to understand;
b.structures and processes (medium of engagement) of participation that are clear and simple;
c.opportunity for balanced influence from the public in general;
d.commitment to the process;
e.inclusive and effective representation;
f.integrity and transparency of the process;
g.capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter”.
[58] With regard to the MTO Regulations, it is common ground that stakeholder engagement was conducted by the 2 nd respondent. The petitioner conceded as much at paragraphs 2 and 3 of the Supporting Affidavit sworn by its Chief Executive Officer, Mr. Juma Ali Tellah . It also annexed to that affidavit copies of the letters sent by the 2 nd respondent informing the petitioner and its members, among other stakeholders, of the proposed Draft MTO Regulations and inviting their views. The petitioner conceded that it responded by nominating its Chief Executive Officer, who attended and submitted to the 2 nd Respondent a comprehensive dossier dated 6 th December 2021 that comprised of feedback, objections and comments in respect of the Draft Bill and the MTO Regulations. A copy thereof was annexed to the petitioner’s Supporting Affidavit and marked “C”.
[59] Besides, as pointed out by the respondents, the public engagement documents were exhibited herein as annexures to the respondents’ respective Replying Affidavits. Accordingly, in respect of the MTO Regulations, the petitioner’s contention is not that there were not stakeholder consultations; but that it was inadequate. It is however noteworthy that the petition acknowledged that its views were taken into account; but was aggrieved by the fact that its 37-page dossier was reduced to a single paragraph in the report published by the 2 nd respondent in its website. There is also the uncontroverted averment by the 4 th respondent that its Committee on Delegated Legislation had the opportunity of reconsidering the MTO Regulations and satisfying itself that public participation was undertaken.
[60] I have taken into account the fact that the petitioner placed heavy reliance on the National Assembly v Okiya Omtatah Okoiti & 55 others (supra) in which the Court of Appeal pointed out that:
187. Accountability, one of the principles in article 10(2)(c) means that officials must explain the way in which they have used their power. Transparency, also a requirement in the exercise of public power means openness, which is the opposite of secrecy. Therefore, the constitutional requirement for transparency and accountability imposes an obligation upon State organs to inform the general public and stakeholders why their views were not taken into account and why the views of some of the stakeholders were preferred over theirs. Such an approach will not only enhance accountability in the decision making processes by State organs but also it will enhance public confidence in the processes and in our participatory democracy. To suggest otherwise would be a serious affront to article 10(2).
188. Public participation is not an inconsequential process or a sheer formality. the Constitution embraces a radical form of participatory democracy. For instance, it recognizes the importance of participatory democracy in the context of meaningful public engagement in governance and decision making processes including enactment of legislation and formulation of policies which affect their rights and day to day lives. It would be strange indeed if the principles of participatory democracy and consultation are to operate only when the public are invited to give their views, then they vanish at the crucial stage when the general principles of the original statute are being converted into operational standards and procedures, only to re- surface at the stage of the implementation of the provisions impacting on specific individuals without any explanation as to why their views were rejected.
189. If, as we have found to be the case, the justification for public participation is to facilitate public involvement as a crucial aspect of participatory democracy and legitimacy, vesting in Parliament arbitrary power to reject or ignore the contribution from the public without explanation or justification is the surest way of undermining public participation. Insulating Parliament from the obligation to give reasons or justification for rejecting the views of the public is the surest way of rendering public participation illusory, cosmetic and a mere formality or public relations exercise, which the Supreme Court and this court have loudly declared it is not.
190. Therefore, when determining whether public participation as a prerequisite to the determination of policy by a State organ has been complied with, one must ascertain whether the public participation has been done in a manner that rationally connects the consultation with the constitutional purpose of accountability, responsiveness and transparency. We see no superimposed judicial stratagem of undermining separation of powers by upholding the explicit provisions of transparency and accountability prescribed in article 10(2)(c). Accordingly, we find that Parliament after conducting public participation is obligated to give reasons for rejecting or adopting the proposals received. The import of this finding is that the ensuing Act offended article 10(1) and (2)(c). it is therefore our conclusion that failure to adhere to the dictates of article 10(1) and (2) (c) renders the process leading to the enactment of the Act flawed.
[61] It is notable however that the Court of Appeal rendered its decision on 31 st July 2024 long after the public participation exercise had been conducted and three months after the Regulations were operationalized. Therefore, the respondents did not have the benefit of and guidance given in the decision of the Court of Appeal when the impugned Regulations were formulated.
[62] In respect of the other 6 Regulations, namely, the Merchant Shipping (Maritime Labour) Regulations, 2024, the Merchant Shipping (Maritime Transport Operators) Regulations, 2024, the Merchant Shipping (Load Lines) Regulations, 2024, the Merchant Shipping (Tonnage Measurement) Regulations, 2024, the Merchant Shipping (Recognised Organisations) Regulations 2024 and the Merchant Shipping (Prevention of Collision) Regulations, 2024, the respondents demonstrated that similar stakeholder engagements were held. To this end they relied on the documents at pags 78 to 112 of the 4 th respondent’s Replying Affidavit.
[63] Indeed, the petitioner conceded that, by a letter dated 5 th April 2022, the 2 nd respondent communicated its intention to transpose into Kenyan law, through regulations, the various maritime conventions ratified by Kenya. The petitioner deposed that it opted not to participate in the stakeholder meeting held on 14 th April 2022 since the proposed regulations did not affect its members. It added that, in any case, its members’ operations were already aligned with the international conventions in question.
[64] Hence, it must be underscored that public participation does not necessarily mean that everyone must express their opinions. Instead, it suffices that a purposeful initiative to incorporate a variety of perspectives in the participation programme; and that this can be demonstrated by way of credible evidence. This was made clear in the case of Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others [2015] eKLR, in which a 5 judge bench held:
“…public participation does not dictate that everyone must give their views on an issue of environmental governance. To have such a standard would be to give a virtual veto power to each individual in the community to determine community collective affairs…Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or Public Official must take into account the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account…”
[65] In the South African case of Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others (supra) it was held that:
“[t]he principles of fairness are not to be applied by rote identically in every situation.” It cannot be expected of the law-maker that a personal hearing will be given to every individual who claims to be affected by regulations that are being made. What is necessary is that the nature of the concerns of different sectors of the public should be communicated to the law-maker and taken into account in formulating the regulations.
[66] From the above precedents on public participation, certain guiding principles emerge. Public participation is a constitutional imperative under Article 10 , binding on all state organs and officers whenever laws or policies are being made. It is the duty of the authority formulating the regulations to facilitate such participation using reasonable means, regardless of the absence of a rigid framework. The process must be genuine, inclusive, and meaningful, not a mere formality. While it does not require every individual to personally give their views, there must be clear evidence that diverse stakeholders were given adequate notice and a fair opportunity to contribute. Ultimately, the validity of a participation process depends on its reasonableness in the circumstances, its inclusivity, and whether the concerns raised were considered in good faith.
[67] Thus, public participation requires that stakeholders be afforded a fair opportunity to engage in the legislative process. Once such an opportunity is provided, a party who deliberately declines to participate cannot later claim exclusion. The duty of the regulatory - authority is to facilitate participation, not to compel it; thus, refusal to engage bars a stakeholder from alleging lack of public participation; and I am satisfied that not only was public participation conducted in the case of the impugned Regulations, but also that it was adequate in the circumstances.
B. Whether the impugned Regulations comply with the requirements of the Statutory Instruments Act:
[68] The petitioner contended that, in enacting the impugned Regulations, the respondents failed to comply with Section 5 of the Statutory Instruments Act , which, inter alia , mandates consultation with relevant stakeholders through public participation. The respondents, however, disputed this claim, asserting that they had indeed conducted public participation in accordance with the law and it is the Petitioner who chose not to participate as had been communicated.
[69] Section 5 of the Statutory Instruments Act , states as follows:
(1) Before a regulation-making authority makes a statutory instrument, and in particular where the proposed statutory instrument is likely to—
(a) have a direct, or a substantial indirect effect on business; or
(b) restrict competition;
the regulation-making authority shall make appropriate consultations with persons who are likely to be affected by the proposed instrument.
(2) In determining whether any consultation that was undertaken is appropriate, the regulation making authority shall have regard to any relevant matter, including the extent to which the consultation—
(a) drew on the knowledge of persons having expertise in fields relevant to the proposed statutory instrument; and
(b) ensured that persons likely to be affected by the proposed statutory instrument had an adequate opportunity to comment on its proposed content.
(3) Without limiting by implication the form that consultation referred to in subsection (1) might take, the consultation shall—
(a) involve notification, either directly or by advertisement, of bodies that, or of organizations representative of persons who, are likely to be affected by the proposed instrument; or
(b) invite submissions to be made by a specified date or might invite participation in public hearings to be held concerning the proposed instrument.
[70] Hence, Section 5 of the Statutory Instruments Act places a mandatory obligation upon a regulation-making authority to conduct appropriate consultations with stakeholders prior to enacting any statutory instrument. This duty becomes particularly critical where the proposed instrument is likely to have a direct or substantial indirect effect on business, or where it may restrict competition. The section further provides guidance on what constitutes appropriate consultation, requiring the process to draw on the expertise of persons with relevant knowledge and ensure that those likely to be affected are accorded an adequate opportunity to comment on the proposed instrument.
[71] More importantly, the provision requires that notification, either directly or by advertisement, be given to bodies or organizations likely to be affected by the proposed instrument; that submissions be invited to be made by a specified date or the convening of public hearings. In essence, the Act underscores the principle of participatory governance by ensuring that those affected by delegated legislation are not only informed but also meaningfully involved in the law-making process.
[72] Section 5A of the Statutory Instruments Act, on the othere hand, provides that:
( 1) Every statutory instrument shall be accompanied by an explanatory memorandum which shall contain—
(a) a statement on the proof and demonstration that sufficient public consultation was conducted as required under Articles 10 and 118 of the Constitution;
(b) a brief statement of all the consultations undertaken before the statutory instrument was made;
(c) a brief statement of the way the consultation was carried;
(d) an outline of the results of the consultation;
(e) a brief explanation of any changes made to the legislation as a result of the consultation.
[73] The respondents demonstrated, vide their Replying Affidavits and the annexures thereto, that there was due compliance with the above provisions. In particular, the 4 th respondents Replying Affidavit is manfiest at pages 11 to 36 (Annexure SN-2) that an explanatory memorandum was indeed prepared and forwarded as by law required. In addition, at pages 37 to 75 of the 4 th respondent’s Replying Affidavit (Annexure SN-3) compliance with Section 6 of the Statutory Instruments Act was proved in respect of the MTO Regulations. Section 6 provides that:
“If a proposed statutory instrument is likely to impose significant costs on the community or a part of the community, the regulation making authority shall, prior to making the statutory instrument, prepare a regulatory impact statement about the instrument.”
[74] In response, the 1 st , 2 nd and 3 rd Respondents also indicated that they complied with the provisions of the Statutory Instrument Act and that a Regulatory Impact Statement was prepared for the proposed MTO Regulations and Gazetted in the Kenya Gazette under Gazette Notice No. 10867 as required by Sections 7 and 8 of the Act. As for the other Regulations, it is manifest from the evidence presented by the respondents that they fall within the exception provided under Section 9 of the Statutory Instruments Act , and were, therefore, also compliant. The provision states:
A regulatory impact statement need not be prepared for a proposed statutory instrument if the proposed legislation only provides for, or to the extent it only provides for—
(a) a matter that is not of a legislative character, including, for example, a matter of a machinery, administrative, drafting or formal nature;
(b) a matter that does not operate to the disadvantage of any person (other than a government entity) by—
(i) decreasing the person’s rights;
(ii) imposing liabilities on the person;
(c) an amendment of statutory instrument to take account of the prevailing Kenyan legislative drafting practice;
(d) the commencement of an Act or subordinate legislation or a provision of an Act or statutory instrument;
(e) an amendment of statutory instrument that does not fundamentally affect the legislation’s application or operation;
(f) a matter of a savings or transitional character;
(g) a matter arising under legislation that is substantially uniform or complementary with legislation of the National Government or any County;
(h) a matter advance notice of which would enable someone to gain unfair advantage;
(i) an amendment of a fee, charge or tax consistent with announced government policy.
[75] Moreover, at paragraph 10 of its Supporting Affidavit, the petitioner deposed that its members are already compliant with the transposed Regulations. For the foregoing reasons, I am satisfied that there was compliance with the Statutory Instruments Act.
C. Whether the Tariff Framework published by the 2 nd respondent has statutory basis:
[76] The petitioner took issue with the Tariff Framework published by the 2 nd respondent. Its contention was that the Tariff Framework is an order, direction or guideline for purposes of Section 2 of the Statutory Instrument Act and had to treated as such; something that was not done by the respondents. Section 2 of the Statutory Instrument Act provides:
"statutory instrument" means any rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline or other statutory instrument issued, made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued.”
[77] A look at Regulation 11 of the MTO Regulations shows that a licenced operator must comply with the conditions set out in the Fourth Schedule. The Fourth Schedule on its part requires that MTOs must apply the tariff filed with the 2nd respondent and must notify the 2nd respondent of any changes within the framework set out by the 2nd respondent. There is no indication that the Tariff Framework introduced new legal or regulatory requirements outside the scope of what had already been provided for in the Regulations.
[78] I am fortified in this finding by the position taken in the case of Republic v Attorney General; Law Society of Kenya (Interested Party); Ex-parte: Francis Andrew Moriasi [2019] KEHC 7013 (KLR) , with which I agree, that:
“26. From the definition given above of statutory instruments, and the powers granted to the Respondent, it is therefore the case that not all the guidelines, orders, or directions given by the Respondent are legislative in character and therefore statutory instruments. There may be guidelines and directions that are purely executive in character, in the sense that their objectives are solely administrative in guiding implementation of standards in laws and policies.”
[79] 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. It gives guidelines to any Maritime Transport Operator seeking to review their tariffs. There, was, therefore, no requirement for compliance with the Statutory Instruments Act.
D. Whether the impugned Regulations contravene the petitioner’s right to fair administrative action:
[80] Having found that the impugned Regulations were passed in accordance with the applicable law, the petitioner’s contention that the Regulations are unconstitutional, null and void, is untenable. The Court has observed herein above tht the process of formulating the Regulations was not only transparent, but also participatory. The petitioner was specifically informed of the various public participation workshops via the letters dated 7 th December 2021 and 28 th January 2022; and was requested to assist in sensitizing their members to submit their views. The right to be heard was therefore provided and feedback given through detailed reports published on the 2 nd respondent’s website.
[81] A perusal of the MTO Regulations also reveals that it has inbuilt complaint mechanism. Regulation 16 of the Merchant Shipping (Maritime Transport Operators) Regulations, 2024 provides:
Any person aggrieved by the decision of the Director General, under these Regulations may apply for a review of that decision in accordance with the provisions of Part XX of the Act.
[82] This Court is not persuaded that the Director General’s powers are absolute or beyond review. On the contrary, Regulation 16 of the Merchant Shipping (Maritime Transport Operators) Regulations, 2024 , read with Part XX of the Merchant Shipping Act , clearly subjects such decisions to legal scrutiny. By way of illustration, where the Director General suspends or revokes a licence of a maritime transport
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