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[1] The petitioner, Kenya Ships Agents Association, is a non-profit company limited by guarantee. In its Petition dated 2nd 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 1st respondent is the Cabinet Secretary in the Ministry of Mining, Blue Economy and Maritime Affairs. It was sued as the 1st respondent herein because it promulgated the impugned Regulations, the subject of this Petition. The 2nd 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 3rd respondent is the Hon. Attorney General, the principal legal adviser to the Government of Kenya. Hence, the 1st, 2nd and 3rd 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 4th respondent vide the Amended Petition dated 19th September 2024 upon leave to that effect being granted on 18th 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 11th November 2021, the 2nd respondent 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 2nd Respondent an extensive dossier dated 6th 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 2nd 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 1st Report”) on the 2nd 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 1st 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 the 1st Report did not address or reference its extensive 37-page dossier or the totality of the feedback, comments and objections raised therein; but instead purported to address a single comment touching on Regulation 18 of the Draft MTO Regulations.
[7] The petitioner also averred in its Petition that it came across another report by the 2nd respondent, published on its website entitled: Report of Stakeholder Consultations on the Maritime Laws (Amendment) Bill and the Merchant Shipping (Maritime Transport Operators) Regulations 2022 ("the 2nd Report") in which the 2nd respondent attempted to outline its efforts in ensuring public participation in respect of the Draft MTO Regulations. The petitioner pointed out that the 2nd respondent failed to attach the responses to the said consultations or the findings. In their view, these so called public participation activities were lacking in transparency given that no information could be gleaned as to what transpired during the various stakeholder engagement processes.
[8] The Petitioner conceded that it received a letter dated 5th April 2022 from the 2nd respondent. The letter was likewise addressed to the stakeholders in the maritime industry, conveying the 2nd respondent''s intention to transpose various maritime conventions ratified by Kenya, into Kenya law via the following proposed regulations:
[a] Merchant Shipping (Collision Prevention) Regulations;
[b] Merchant Shipping (Load Line) Regulations,
[c] Merchant Shipping (Tonnage Measurement) Regulations;
[d] Merchant Shipping (Recognized Organizations) Regulations;
[e] Merchant Shipping (Maritime Labour) Regulations &
[f] Merchant Shipping (Seafarer Identity Document) Regulations.
[9] In similar fashion, the 2nd respondent thereby invited various stakeholders in the maritime industry to each nominate one member to attend a stakeholders'' workshop to be held on 14th April 2022 in Mombasa. The petitioner averred that, this time round, it elected not to participate in the stakeholder engagements since the proposed Regulations did not affect its members; and were in any event, aligned to the international conventions, with which its members were already compliant.
[10] The petitioner however complained that no report was published with respect to the aforementioned Regulations by the respondents. It further stated that it was not until the 29th July 2024 that it got to learn that the impugned Regulations were in force. It was brought to its attention by one of its members, Maersk Kenya Limited, that it had received a letter from the 2nd Respondent alleging breach of the Merchant Shipping (Maritime Transport Operators) Regulations, 2024.
[11] The petitioner asserted that, it was at that point that it came to learn that, vide a Special Issue of the Kenya Gazette under Kenya Gazette Supplement No. 109 dated 24th May 2024, the 1 st Respondent purported to promulgate the impugned Regulations, including the MTO Regulations in respect of which they were yet to receive feedback from the 1st and 2nd respondents. The petitioner added that on perusing the MTO Regulations, it became apparent that none of the objections it had raised back in 2021 were taken into account before promulgation of the impugned Regulations.
[12] At paragraphs 23 to 35, the petitioner averred that in view of the foregoing developments, it requested for a meeting with the 2nd respondent, which request was granted. The meeting took place on 13th August 2024 and was attended by the Director General of the 2nd respondent and five representatives of the petitioner. The petitioner averred that, during the meeting, its representatives explained their concerns to the Director General, especially the issue of the licence of one of the petitioner''s members being threatened for alleged contravention of the MTO Regulations.
[13] At the conclusion of the meeting, the Director General requested the petitioner to write a letter to the 2nd Respondent outlining all its concerns; but a few days later and in the course of ordinary business, the petitioner noted that the 2nd Respondent had uploaded the Tariff Framework on its website pursuant to the Merchant Shipping Act (CAP 389) and Legal Notice No. 92 of 24th May 2024 i.e. Schedule 4 to the MTO Regulations.
[14] The petitioner is aggrieved that the Tariff Framework mandatorily provides for a procedure to be adopted by MTOs that seek to change their tariffs, including the requirement to give a ninety (90) day notice to the 2nd respondent. In the petitioner’s view, that notice period is an inordinately long, time given the fast-paced nature of the maritime business. It pointed out that the Tariff Framework also calls for consultations with the public on the same and that a notice be given to the public thirty (30) days prior to the effective date of the proposed changes in tariffs. The petitioner contended that there was neither public consultation on the Tariff Framework nor was any notice given to the stakeholders of the maritime industry prior to its publication.
[15] Vide a letter dated 15th August 2024, the Petitioner wrote to the 2nd respondent as agreed in the meeting with the Director General of the 2nd respondent. It outlined its concerns regarding the promulgation of the MTO Regulations, and requested for clarity on the provision of a grace period of two (2) years or enactment of further regulations providing for this to ensure that the Petitioner''s members operating environment was within the confines of the law. In response thereto, the 2 nd respondent wrote to the petitioner vide letter dated 22nd August 2024 informing the petitioner of the published MTO Regulations and requested the petitioner to bring the same to the attention of its members for effective and efficient implementation.
[16] The petitioner therefore contended that, in promulgating the impugned Regulations, the 1st respondent egregiously violated various provisions of the Constitution, the Statutory Instruments Act, the Fair Administrative Actions Act and consequently acted ultra vires his powers under the Merchant Shipping Act.
[17] Accordingly, the petitioner prayed for the following reliefs:
[a] A declaration that all, or any as the Court mind find, of the following Regulations are unconstitutional and therefore null and void for violation of the Constitution:
[i] The Merchant Shipping (Maritime Labour) Regulations, 2024
[ii] The Merchant Shipping (Maritime Transport Operators) Regulations, 2024
[iii] The Merchant Shipping (Load Lines) Regulations, 2024
[iv] The Merchant Shipping (Tonnage Measurement) Regulations, 2024
[v] The Merchant Shipping (Recognised Organisations) Regulations 2024
[vi] The Merchant Shipping (Prevention of Collision) Regulations, 2024
[b] A declaration that all, or any as the Court might find, of the Regulations listed in [a] above were issued ultra vires the powers of the 1st respondent under the Merchant Shipping Act, 2009, and therefore null and void.
[c] A declaration that all, or any as the Court might find, of the Regulations listed in [a] above, are illegal for violation of the Statutory Instruments Act and the Fair Administrative Action Act and therefore null and void.
[d] An order of certiorari to quash all, or any as the Court might find, of the Regulations listed in [a] above.
[e] A declaration that the Introduction and Review of Tariff Rates Framework published by the 2nd respondent on its website in August 2024 is unconstitutional, illegal, ultra vires and therefore null and void.
[f] An order of certiorari to quash the Introduction and Review of Tariff Rates Framework published by the 2nd respondent on its website in August 2024.
[g] A permanent order of injunction to restrain the 2nd respondent, either by itself, or through its officers, employees, servants or agents, including any other government agency, from in any way giving effect, acting upon or enforcing the Introduction and Review of Tariff Rates Framework published by the 2nd respondent on its website in August 2024.
[h] Costs of the Petition.
[i] Such other and/or further relief as this Honourable Court may deem fit to grant.
[18] The 1st, 2nd, and 3rd respondents opposed the Petition. They relied on their Replying Affidavit sworn by Eng. Julius Koech on 11th October 2024 in which they averred that Kenya has been a Member State of the International Maritime Organization since 1973. They stated that following an audit by the International Maritime Organization State Audit Scheme (IMSAS) of its members in 2018, it was established that Kenya needed to strengthen its legal framework through the comprehensive transposition and implementation of mandatory International Maritime Organization instruments. They pointed out that the International Maritime Organization has conventions that are not self-executing and therefore require to be domesticated for effective implementation.
[19] The 1st, 2nd, and 3rd respondents indicated that, to that end, public participation was conducted within the confines of the law. The 1st, 2nd and 3rd respondents urged the Court to note that, in its Supporting Affidavit, the petitioner deposed that it chose not to participate in the enactment of the regulations mentioned herein apart from Merchant Shipping (Maritime Transport Operators) Regulations. They posited that stakeholder engagements were carried out and the views of the petitioner taken into consideration in respect of the MTO Regulations. They, therefore, urged the court to dismiss the Petition herein.
[20] The 4th respondent, the National Assembly, also opposed the Petition. It filed a Replying Affidavit sworn by Samuel Njoroge, CBS on 30th September 2024. It pointed out that under Article 94(5) of the Constitution no person or body, other than Parliament, has the power to make provisions having the force of law except under authority conferred by this Constitution or by legislation. It added that Article 94(5) of the Constitution as read with Section 11 of the Statutory Instrument Act require that all regulation-making authorities submit copies of all statutory instruments to the National Assembly for approval. Further, that Standing Order 210 of the National Assembly Standing Orders creates and empowers the Committee of Delegated Legislation to consider all statutory instruments laid before the National Assembly.
[21] The 4th respondent was categorical that the impugned regulations were processed in the National Assembly in accordance with the requirements of the Statutory Instruments Act and National Assembly Standing Orders. It was also the 4th respondent’s case that all the impugned regulations were submitted on the 31st May 2024 together with Explanatory Memoranda as required under Section 5A of the Statutory Instrument Act. The 4th respondent also mentioned that
the MTO Regulations were accompanied by a Regulatory Impact Assessment Report as required under Section 6 of the Statutory Instruments Act. The 4th Respondent explained that the other impugned regulation were exempt from compliance with Section 6 by dint of Section 9(1) of the Statutory Instruments Act.
[22] The 4th respondent further deposed that the Regulations were tabled before the National Assembly on 4th June, 2024 and committed to the Committee on Delegated Legislation and the Committee embarked on its mandate in compliance with Sections 13 to 19 of the Statutory Instruments Act. The 4th respondent pointed out that the Committee on Delegated Legislation reviewed the documents submitted by the 1st respondent in proof of public participation and stakeholder engagement, and was satisfied that the 1st and 2nd Respondents had duly undertaken adequate public participation and stakeholder consultations in accordance with Article 10(2) of the Constitution.
[23] The 4th respondent also mentioned that evidence was submitted to it confirming that the petitioner, as one of the stakeholders in the maritime industry, was duly informed of various public participation workshops vide letters dated 7th December, 2021 and 28th January, 2022. The 4th respondent also pointed out that various reports on stakeholder engagements and public participation were submitted it; and that they included the Report on Stakeholder’s Forum held on 24th November, 2021, the Report of partner Government Agencies Participation Meeting held on 1st December, 2021, the Report on Public participation meeting held on 4th December, 2021, the Report on Public participation forum held on 9th February, 2022 and the Report on Public participation workshop held on 4th March, 2022.
[24] According to the 4th respondent, the 1st respondent having proved compliance with the applicable law and procedures, An approval letter of the Committee’s decision to accede to the Regulations pursuant to Standing Order No. 210(4)(a) of the National Assembly Standing Orders was duly sent to the 1st respondent. It averred that the Committee satisfied itself that reasonable public participation was conducted and that the 1st respondent complied with provisions of Articles 10 and 118 of the Constitution as well as Sections 8, 60, 263 and 450 of the Merchant Shipping Act.
[25] The Petition was canvassed by way of written submissions pursuant to the directions given herein on 18th September 2024. The petitioner relied on its detailed written submissions dated 14th October 2024. At paragraphs 6 to 24 of the petitioner’s written submissions is a reiteration of the background facts as presented by it. The petitioner then proposed the following issues for determination:
[a] Whether the impugned Regulations and the Tariff Framework are unconstitutional and therefore null and void;
[b] Whether the Petition merits the grant of the orders sought;
[c] Who should bear the costs of the Petition.
[26] It was the submission of the petitioner that the impugned Regulations as well as the Tariff Framework are unconstitutional and therefore null and void due to failue by the respondents to abide by the constitutional requirement of public participation as mandated by Article 10(2) of the Constitution. They further submitted that the respondents thereby breached the provisions of Section 6 of Statutory Instruments Act and therefore the impugned instruments are illegal, ultra vires and in contravention of the rule of law.
[27] The petitioner relied on British American Tobacco Kenya PLC formerly British American Tobacco Kenya Ltd v Cabinet Secretary for the Ministry of Health & 2 others [2019] KESC 15 (KLR), The National Assembly & another v Okiya Omtatah Okoiti & 55 others [2024] KECA 876 (KLR) and Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentists Council & another [2024] KEHC 8255 (KLR) to buttress its submission that no meaningful public participation was conducted by the respondents.
[28] The petitioner also impugned the Tariff Framework contending that it is also a statutory instrument within the meaning of a statutory instrument as given in the Statutory Instruments Act. The petitioner relied on Section 3(1) of the Statutory Instruments Act which provides that the Act applies to every statutory instrument made directly or indirectly under any Act of Parliament or other written legislation. Reference was also made to page 320 of the petitioner’s annexures to stress the point that the Tariff Framework references the Merchant Shipping Act and the MTO Regulations as its basis; and therefore null and void for having been made pursuant to the unconstitutional MTO Regulations.
[29] It was further the submission of the petitioner that the 1st respondent did not accord it or its members the right to be heard on the decision to promulgate the MTO Regulations and therefore acted in breach of Article 47 of the Constitution and Section 4(1) of the Fair Administrative Actions Act. The petitioner particularly took issue with the fact that the stakeholder engagements took place in 2021 and yet the respondents waited for over 3 years to publish the Regulations in 2024 with no bearing or reference whatsoever to the engagement in 2021. The petitioners submitted that, with regard to the Tariff Framework, its members were not accorded an opportunity to be heard by the 2nd respondent prior to their publication.
[30] The petitioner also took issue with the MTO Regulations for being unreasonable in providing no apparent recourse to persons aggrieved by a decision of the 2nd respondent. It submitted that Regulation 16 of the MTO Regulations refers such a person to Part XX of the Merchant Shipping Act, 2009, which only provides for the prosecution of offences committed under the said Act. The petitioner submitted that it was the height of unreasonableness that no appeal mechanism was provided for in respect of decisions made under Regulation 16 of the MTO Regulations.
[31] The petitioner contended that Regulation 16 contravenes the rights and fundamental freedoms of its members as guaranteed under Articles 27 and 40 of the Constitution in that their non-Kenyan shareholders stand to be coerced into selling, transferring or otherwise divesting their majority control of their companies to Kenyan citizens in order to operate as MTOs in Kenya. To buttress its submissions in this regard, the petitioner relied on Mtana Lewa v Kahindi Ngala Mwagandi [2015] KECA 532 (KLR) and Pastoli v Kabale District Local Government Canal & others [2008] 2 EA 300.
[32] Lastly, the petitioner urged the Court to find that the Regulations and the Tariff Framework made thereunder contravene Section 21(1) of the Competition Act which prohibits decisions that have the effect of preventing, distorting or lessening competition in trade of any goods or services. They contended that the publication of the Tariff Framework without the involvement of the Competition Authority is fatal and makes the Tariff Framework null and void.
[33] In conclusion, the petitioner submitted that the Petition is merited and ought to be allowed and the reliefs sought granted as prayed. They also asked for costs of the Petition in line with the proviso to Section 27 of the Civil Procedure Act.
[34] The 1st, 2nd and 3rd respondents filed written submissions dated 23rd October 2024. They relied on their version of the facts as deposed to by Eng. Julius Koech. They submitted that public participation was undertaken before the formulation of the impugned Regulations. They made reference to paragraphs 11, 12, 17 and 18 of the Amended Petition where the petitioner admitted that they were invited for the stakeholder engagements in respect of the MTO Regulations. The respondents also pointed out that the petitioner admitted that it chose not to participate in the public participation engagements for the other six Regulations because they did not affect the operations of its members; and that the same are aligned to international conventions that its members already adhere to.
[35] In response to the petitioner’s contention that no Regulatory Impact Statement on the MTO Regulations was prepared or submitted, the 1st, 2nd and 3rd respondents made reference to a copy of the said report exhibited as an annexture to their Replying Affidavit and marked Annexure T 13. They pointed out that, pursuant to Section 8 of the Statutory Instruments Act, the 1st respondent notified the general public that a Regulatory Impact Statement on the proposed MTO Regulations had been prepared to assess the impact of the proposed regulations on the community and business vide Gazette Notice No. 10867 of 3rd August 2023 and invited all persons likely to be affected to submit written memoranda within 14 days. The respondents also exhibited a copy thereof to their Replying Affidavit and is marked T 14.
[36] The 1st respondent thereafter submitted the Regulations to the 4th respondent vide a letter dated 29th May 2024, pursuant to Section 11(1) of the Statutory Instruments Act. The 1st, 2nd and 3rd respondents further submitted that the MTO Regulations were accompanied by explanatory memoranda; and therefore there was full compliance with the relevant provisions of the Statutory Instruments Act; and that the others were exempt from compliance with the provisions of the Statutory Instruments Act.
[37] With regard to public participation, the 1st, 2nd, and 3rd respondents relied on the British American Tobacco case (supra) to support their assertion that all the basic elements of public participation, including dissemination of information, invitation to participate and consultation on the Regulations wer complied with. They contended that, although the petitioner alleged that no feedback on the public participation was given, such feedback was in fact given through the two reports that were available on the 2nd respondent’s website; and that this was acknowledged by the petitioner in paragraph 4 and Annexure “D” of its Supporting Affidavit.
[38] The 1st, 2nd and 3rd respondents placed reliance on Minister of Health and another v New Clicks South Africa (Pty) Ltd & others (CCT 59/2004) [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC) (30 September 2005) and Republic v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries & others, Ex Parte the Council of County Governors & another [2017] eKLR for the proposition that what matters at the end of the day is that a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say.
[39] The 1st, 2nd and 3rd respondents posited tht the Tariff Framework on the Introduction and Review of Tariff Rates falls outside the purview of the Statutory Instruments Act. They relied on Republic v Attorney General; Law Society of Kenya (Interested Party), Ex Parte Francis Andrew Moriasi [2019] eKLR in which it was held that not all guidelines, orders or directions are legislative in character and therefore statutory instruments.
[40] On whether the impuged Regulations contravene the petitioner’s right to fair administrative action, the 1st, 2nd and 3rd respondents submitted that the Regulations were developed in an open and transparent manner; and that members of the public and stakeholders wer affordd an opportunity to participate in the public participation engagements. They added that the exercise entailed the right to be heard either orally or by way of submission of memoranda; and that the petitioner fully took advantage of those opportunities and cannot therefore say that its Article 47 rights have been infringed.
[41] The 1st, 2nd and 3rd respondents therefore prayed for the dismissal of the Petition. They relied on Kenya Railways Corporation & 2 other v Okoiti & 3 others [2023] KESC 38 (KLR) for the proposition that costs ought not to be awarded in public interest litigation.
[42] The 4th respondent filed written submissions dated 22nd October 2024. It likewise presented the gist of its case and proposed the following issues for determination:
[a] Whether there was adequate public participation in the formulation of the impugned Regulations, as required by Article 10 of the Constitution;
[b] Whether the impugned Regulations comply with the requirements of the Statutory Instruments Act regarding the preparation of a Regulatory Impact Statement;
[c] Whether the impugned Regulations and the Tariff Framework were made ultra vires and in contravention of the rule of law;
[d] Whether the impugned Regulations contravene the petitioner’s right to fair administrative action;
[e] Whether costs should be awarded.
[43] The 4th respondent relied on Section 5 of the Statutory Instruments Act and submitted that the burden of ensuring public participation has been carried out is placed on the concerned regulation-making authority. It however submitted that public participation does not necessarily mean that the views given must prevail. According to the 4th respondent, the Committee on Delegated Legislation satisfied itself on the extent and quality of public participation conducted by the respondent and proceeded to approve the impugned Regulations. They further submitted that the Committee also subjected the Regulations to the test specified in the Statutory Instruments Act and ensured that the impugned Regulations were compliant.
[44] The 4th respondent also relied on the British American Tobacco case (supra) and Republic v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries & others; Ex Parte Council of County Governors & another [2017] eKLR to support their assertion that reasonable efforts were made to inform and engage the relevant stakeholders, including the petitioner. They submitted that the adequacy or otherwise of public participation is to be determined on a case to case basis; and that public participation does not necessarily mean that every individual must be heard.
[45] The 4th respondent also contended that it was upon the 1st respondent to determine how best to achieve public participation. They relied on Doctors for Life International v Speaker of the National Assembly and others (CCT12/05) [2006] ZACC 11 in which the Constitutional Court of South Africa held:
“Parliament and the provincial legislatures have broad discretion to determine how best to fulfil their constitutional obligation to facilitate public involvement in a given case, so long as it is reasonable to do so. Undoubtedly, this obligation may be fulfilled in different ways and is open to innovation on the part of the legislatures.”
[46] The 4th respondent refuted the petitioner’s allegation that no feedback was given on the conduct of public participation and urged the Court to believe their version, namely, that feedback was given by way of reports which were published on the 2nd respondent’s website; an assertion which was acknowledged by the petitioner.
[47] According to the 4th respondent, a plain reading of the Tariff Framework shows that the document served to provide MTOs with the process for notification of tariff reviews. They submitted that the document did not introduce any new legal or regulatory requirements outside the scope of what had already been provided for within the Regulations. They urged the Court to find that the Tariff Framework is not a statutory instrument for purposes of the Statutory Instruments Act. They relied on Republic v Attorney General; Law Society of Kenya (Interested Party), Ex Parte Francis Andrew Moriasi [2019] eKLR and Majid Al
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[1] The petitioner, Kenya Ships Agents Association, is a non-profit company limited by guarantee. In its Petition dated 2nd 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 1st respondent is the Cabinet Secretary in the Ministry of Mining, Blue Economy and Maritime Affairs. It was sued as the 1st respondent herein because it promulgated the impugned Regulations, the subject of this Petition. The 2nd 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 3rd respondent is the Hon. Attorney General, the principal legal adviser to the Government of Kenya. Hence, the 1st, 2nd and 3rd 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 4th respondent vide the Amended Petition dated 19th September 2024 upon leave to that effect being granted on 18th 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 11th November 2021, the 2nd respondent 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 2nd Respondent an extensive dossier dated 6th 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 2nd 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 1st Report”) on the 2nd 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 1st 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 the 1st Report did not address or reference its extensive 37-page dossier or the totality of the feedback, comments and objections raised therein; but instead purported to address a single comment touching on Regulation 18 of the Draft MTO Regulations.
[7] The petitioner also averred in its Petition that it came across another report by the 2nd respondent, published on its website entitled: Report of Stakeholder Consultations on the Maritime Laws (Amendment) Bill and the Merchant Shipping (Maritime Transport Operators) Regulations 2022 ("the 2nd Report") in which the 2nd respondent attempted to outline its efforts in ensuring public participation in respect of the Draft MTO Regulations. The petitioner pointed out that the 2nd respondent failed to attach the responses to the said consultations or the findings. In their view, these so called public participation activities were lacking in transparency given that no information could be gleaned as to what transpired during the various stakeholder engagement processes.
[8] The Petitioner conceded that it received a letter dated 5th April 2022 from the 2nd respondent. The letter was likewise addressed to the stakeholders in the maritime industry, conveying the 2nd respondent''s intention to transpose various maritime conventions ratified by Kenya, into Kenya law via the following proposed regulations:
[a] Merchant Shipping (Collision Prevention) Regulations;
[b] Merchant Shipping (Load Line) Regulations,
[c] Merchant Shipping (Tonnage Measurement) Regulations;
[d] Merchant Shipping (Recognized Organizations) Regulations;
[e] Merchant Shipping (Maritime Labour) Regulations &
[f] Merchant Shipping (Seafarer Identity Document) Regulations.
[9] In similar fashion, the 2nd respondent thereby invited various stakeholders in the maritime industry to each nominate one member to attend a stakeholders'' workshop to be held on 14th April 2022 in Mombasa. The petitioner averred that, this time round, it elected not to participate in the stakeholder engagements since the proposed Regulations did not affect its members; and were in any event, aligned to the international conventions, with which its members were already compliant.
[10] The petitioner however complained that no report was published with respect to the aforementioned Regulations by the respondents. It further stated that it was not until the 29th July 2024 that it got to learn that the impugned Regulations were in force. It was brought to its attention by one of its members, Maersk Kenya Limited, that it had received a letter from the 2nd Respondent alleging breach of the Merchant Shipping (Maritime Transport Operators) Regulations, 2024.
[11] The petitioner asserted that, it was at that point that it came to learn that, vide a Special Issue of the Kenya Gazette under Kenya Gazette Supplement No. 109 dated 24th May 2024, the 1 st Respondent purported to promulgate the impugned Regulations, including the MTO Regulations in respect of which they were yet to receive feedback from the 1st and 2nd respondents. The petitioner added that on perusing the MTO Regulations, it became apparent that none of the objections it had raised back in 2021 were taken into account before promulgation of the impugned Regulations.
[12] At paragraphs 23 to 35, the petitioner averred that in view of the foregoing developments, it requested for a meeting with the 2nd respondent, which request was granted. The meeting took place on 13th August 2024 and was attended by the Director General of the 2nd respondent and five representatives of the petitioner. The petitioner averred that, during the meeting, its representatives explained their concerns to the Director General, especially the issue of the licence of one of the petitioner''s members being threatened for alleged contravention of the MTO Regulations.
[13] At the conclusion of the meeting, the Director General requested the petitioner to write a letter to the 2nd Respondent outlining all its concerns; but a few days later and in the course of ordinary business, the petitioner noted that the 2nd Respondent had uploaded the Tariff Framework on its website pursuant to the Merchant Shipping Act (CAP 389) and Legal Notice No. 92 of 24th May 2024 i.e. Schedule 4 to the MTO Regulations.
[14] The petitioner is aggrieved that the Tariff Framework mandatorily provides for a procedure to be adopted by MTOs that seek to change their tariffs, including the requirement to give a ninety (90) day notice to the 2nd respondent. In the petitioner’s view, that notice period is an inordinately long, time given the fast-paced nature of the maritime business. It pointed out that the Tariff Framework also calls for consultations with the public on the same and that a notice be given to the public thirty (30) days prior to the effective date of the proposed changes in tariffs. The petitioner contended that there was neither public consultation on the Tariff Framework nor was any notice given to the stakeholders of the maritime industry prior to its publication.
[15] Vide a letter dated 15th August 2024, the Petitioner wrote to the 2nd respondent as agreed in the meeting with the Director General of the 2nd respondent. It outlined its concerns regarding the promulgation of the MTO Regulations, and requested for clarity on the provision of a grace period of two (2) years or enactment of further regulations providing for this to ensure that the Petitioner''s members operating environment was within the confines of the law. In response thereto, the 2 nd respondent wrote to the petitioner vide letter dated 22nd August 2024 informing the petitioner of the published MTO Regulations and requested the petitioner to bring the same to the attention of its members for effective and efficient implementation.
[16] The petitioner therefore contended that, in promulgating the impugned Regulations, the 1st respondent egregiously violated various provisions of the Constitution, the Statutory Instruments Act, the Fair Administrative Actions Act and consequently acted ultra vires his powers under the Merchant Shipping Act.
[17] Accordingly, the petitioner prayed for the following reliefs:
[a] A declaration that all, or any as the Court mind find, of the following Regulations are unconstitutional and therefore null and void for violation of the Constitution:
[i] The Merchant Shipping (Maritime Labour) Regulations, 2024
[ii] The Merchant Shipping (Maritime Transport Operators) Regulations, 2024
[iii] The Merchant Shipping (Load Lines) Regulations, 2024
[iv] The Merchant Shipping (Tonnage Measurement) Regulations, 2024
[v] The Merchant Shipping (Recognised Organisations) Regulations 2024
[vi] The Merchant Shipping (Prevention of Collision) Regulations, 2024
[b] A declaration that all, or any as the Court might find, of the Regulations listed in [a] above were issued ultra vires the powers of the 1st respondent under the Merchant Shipping Act, 2009, and therefore null and void.
[c] A declaration that all, or any as the Court might find, of the Regulations listed in [a] above, are illegal for violation of the Statutory Instruments Act and the Fair Administrative Action Act and therefore null and void.
[d] An order of certiorari to quash all, or any as the Court might find, of the Regulations listed in [a] above.
[e] A declaration that the Introduction and Review of Tariff Rates Framework published by the 2nd respondent on its website in August 2024 is unconstitutional, illegal, ultra vires and therefore null and void.
[f] An order of certiorari to quash the Introduction and Review of Tariff Rates Framework published by the 2nd respondent on its website in August 2024.
[g] A permanent order of injunction to restrain the 2nd respondent, either by itself, or through its officers, employees, servants or agents, including any other government agency, from in any way giving effect, acting upon or enforcing the Introduction and Review of Tariff Rates Framework published by the 2nd respondent on its website in August 2024.
[h] Costs of the Petition.
[i] Such other and/or further relief as this Honourable Court may deem fit to grant.
[18] The 1st, 2nd, and 3rd respondents opposed the Petition. They relied on their Replying Affidavit sworn by Eng. Julius Koech on 11th October 2024 in which they averred that Kenya has been a Member State of the International Maritime Organization since 1973. They stated that following an audit by the International Maritime Organization State Audit Scheme (IMSAS) of its members in 2018, it was established that Kenya needed to strengthen its legal framework through the comprehensive transposition and implementation of mandatory International Maritime Organization instruments. They pointed out that the International Maritime Organization has conventions that are not self-executing and therefore require to be domesticated for effective implementation.
[19] The 1st, 2nd, and 3rd respondents indicated that, to that end, public participation was conducted within the confines of the law. The 1st, 2nd and 3rd respondents urged the Court to note that, in its Supporting Affidavit, the petitioner deposed that it chose not to participate in the enactment of the regulations mentioned herein apart from Merchant Shipping (Maritime Transport Operators) Regulations. They posited that stakeholder engagements were carried out and the views of the petitioner taken into consideration in respect of the MTO Regulations. They, therefore, urged the court to dismiss the Petition herein.
[20] The 4th respondent, the National Assembly, also opposed the Petition. It filed a Replying Affidavit sworn by Samuel Njoroge, CBS on 30th September 2024. It pointed out that under Article 94(5) of the Constitution no person or body, other than Parliament, has the power to make provisions having the force of law except under authority conferred by this Constitution or by legislation. It added that Article 94(5) of the Constitution as read with Section 11 of the Statutory Instrument Act require that all regulation-making authorities submit copies of all statutory instruments to the National Assembly for approval. Further, that Standing Order 210 of the National Assembly Standing Orders creates and empowers the Committee of Delegated Legislation to consider all statutory instruments laid before the National Assembly.
[21] The 4th respondent was categorical that the impugned regulations were processed in the National Assembly in accordance with the requirements of the Statutory Instruments Act and National Assembly Standing Orders. It was also the 4th respondent’s case that all the impugned regulations were submitted on the 31st May 2024 together with Explanatory Memoranda as required under Section 5A of the Statutory Instrument Act. The 4th respondent also mentioned that
the MTO Regulations were accompanied by a Regulatory Impact Assessment Report as required under Section 6 of the Statutory Instruments Act. The 4th Respondent explained that the other impugned regulation were exempt from compliance with Section 6 by dint of Section 9(1) of the Statutory Instruments Act.
[22] The 4th respondent further deposed that the Regulations were tabled before the National Assembly on 4th June, 2024 and committed to the Committee on Delegated Legislation and the Committee embarked on its mandate in compliance with Sections 13 to 19 of the Statutory Instruments Act. The 4th respondent pointed out that the Committee on Delegated Legislation reviewed the documents submitted by the 1st respondent in proof of public participation and stakeholder engagement, and was satisfied that the 1st and 2nd Respondents had duly undertaken adequate public participation and stakeholder consultations in accordance with Article 10(2) of the Constitution.
[23] The 4th respondent also mentioned that evidence was submitted to it confirming that the petitioner, as one of the stakeholders in the maritime industry, was duly informed of various public participation workshops vide letters dated 7th December, 2021 and 28th January, 2022. The 4th respondent also pointed out that various reports on stakeholder engagements and public participation were submitted it; and that they included the Report on Stakeholder’s Forum held on 24th November, 2021, the Report of partner Government Agencies Participation Meeting held on 1st December, 2021, the Report on Public participation meeting held on 4th December, 2021, the Report on Public participation forum held on 9th February, 2022 and the Report on Public participation workshop held on 4th March, 2022.
[24] According to the 4th respondent, the 1st respondent having proved compliance with the applicable law and procedures, An approval letter of the Committee’s decision to accede to the Regulations pursuant to Standing Order No. 210(4)(a) of the National Assembly Standing Orders was duly sent to the 1st respondent. It averred that the Committee satisfied itself that reasonable public participation was conducted and that the 1st respondent complied with provisions of Articles 10 and 118 of the Constitution as well as Sections 8, 60, 263 and 450 of the Merchant Shipping Act.
[25] The Petition was canvassed by way of written submissions pursuant to the directions given herein on 18th September 2024. The petitioner relied on its detailed written submissions dated 14th October 2024. At paragraphs 6 to 24 of the petitioner’s written submissions is a reiteration of the background facts as presented by it. The petitioner then proposed the following issues for determination:
[a] Whether the impugned Regulations and the Tariff Framework are unconstitutional and therefore null and void;
[b] Whether the Petition merits the grant of the orders sought;
[c] Who should bear the costs of the Petition.
[26] It was the submission of the petitioner that the impugned Regulations as well as the Tariff Framework are unconstitutional and therefore null and void due to failue by the respondents to abide by the constitutional requirement of public participation as mandated by Article 10(2) of the Constitution. They further submitted that the respondents thereby breached the provisions of Section 6 of Statutory Instruments Act and therefore the impugned instruments are illegal, ultra vires and in contravention of the rule of law.
[27] The petitioner relied on British American Tobacco Kenya PLC formerly British American Tobacco Kenya Ltd v Cabinet Secretary for the Ministry of Health & 2 others [2019] KESC 15 (KLR), The National Assembly & another v Okiya Omtatah Okoiti & 55 others [2024] KECA 876 (KLR) and Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentists Council & another [2024] KEHC 8255 (KLR) to buttress its submission that no meaningful public participation was conducted by the respondents.
[28] The petitioner also impugned the Tariff Framework contending that it is also a statutory instrument within the meaning of a statutory instrument as given in the Statutory Instruments Act. The petitioner relied on Section 3(1) of the Statutory Instruments Act which provides that the Act applies to every statutory instrument made directly or indirectly under any Act of Parliament or other written legislation. Reference was also made to page 320 of the petitioner’s annexures to stress the point that the Tariff Framework references the Merchant Shipping Act and the MTO Regulations as its basis; and therefore null and void for having been made pursuant to the unconstitutional MTO Regulations.
[29] It was further the submission of the petitioner that the 1st respondent did not accord it or its members the right to be heard on the decision to promulgate the MTO Regulations and therefore acted in breach of Article 47 of the Constitution and Section 4(1) of the Fair Administrative Actions Act. The petitioner particularly took issue with the fact that the stakeholder engagements took place in 2021 and yet the respondents waited for over 3 years to publish the Regulations in 2024 with no bearing or reference whatsoever to the engagement in 2021. The petitioners submitted that, with regard to the Tariff Framework, its members were not accorded an opportunity to be heard by the 2nd respondent prior to their publication.
[30] The petitioner also took issue with the MTO Regulations for being unreasonable in providing no apparent recourse to persons aggrieved by a decision of the 2nd respondent. It submitted that Regulation 16 of the MTO Regulations refers such a person to Part XX of the Merchant Shipping Act, 2009, which only provides for the prosecution of offences committed under the said Act. The petitioner submitted that it was the height of unreasonableness that no appeal mechanism was provided for in respect of decisions made under Regulation 16 of the MTO Regulations.
[31] The petitioner contended that Regulation 16 contravenes the rights and fundamental freedoms of its members as guaranteed under Articles 27 and 40 of the Constitution in that their non-Kenyan shareholders stand to be coerced into selling, transferring or otherwise divesting their majority control of their companies to Kenyan citizens in order to operate as MTOs in Kenya. To buttress its submissions in this regard, the petitioner relied on Mtana Lewa v Kahindi Ngala Mwagandi [2015] KECA 532 (KLR) and Pastoli v Kabale District Local Government Canal & others [2008] 2 EA 300.
[32] Lastly, the petitioner urged the Court to find that the Regulations and the Tariff Framework made thereunder contravene Section 21(1) of the Competition Act which prohibits decisions that have the effect of preventing, distorting or lessening competition in trade of any goods or services. They contended that the publication of the Tariff Framework without the involvement of the Competition Authority is fatal and makes the Tariff Framework null and void.
[33] In conclusion, the petitioner submitted that the Petition is merited and ought to be allowed and the reliefs sought granted as prayed. They also asked for costs of the Petition in line with the proviso to Section 27 of the Civil Procedure Act.
[34] The 1st, 2nd and 3rd respondents filed written submissions dated 23rd October 2024. They relied on their version of the facts as deposed to by Eng. Julius Koech. They submitted that public participation was undertaken before the formulation of the impugned Regulations. They made reference to paragraphs 11, 12, 17 and 18 of the Amended Petition where the petitioner admitted that they were invited for the stakeholder engagements in respect of the MTO Regulations. The respondents also pointed out that the petitioner admitted that it chose not to participate in the public participation engagements for the other six Regulations because they did not affect the operations of its members; and that the same are aligned to international conventions that its members already adhere to.
[35] In response to the petitioner’s contention that no Regulatory Impact Statement on the MTO Regulations was prepared or submitted, the 1st, 2nd and 3rd respondents made reference to a copy of the said report exhibited as an annexture to their Replying Affidavit and marked Annexure T 13. They pointed out that, pursuant to Section 8 of the Statutory Instruments Act, the 1st respondent notified the general public that a Regulatory Impact Statement on the proposed MTO Regulations had been prepared to assess the impact of the proposed regulations on the community and business vide Gazette Notice No. 10867 of 3rd August 2023 and invited all persons likely to be affected to submit written memoranda within 14 days. The respondents also exhibited a copy thereof to their Replying Affidavit and is marked T 14.
[36] The 1st respondent thereafter submitted the Regulations to the 4th respondent vide a letter dated 29th May 2024, pursuant to Section 11(1) of the Statutory Instruments Act. The 1st, 2nd and 3rd respondents further submitted that the MTO Regulations were accompanied by explanatory memoranda; and therefore there was full compliance with the relevant provisions of the Statutory Instruments Act; and that the others were exempt from compliance with the provisions of the Statutory Instruments Act.
[37] With regard to public participation, the 1st, 2nd, and 3rd respondents relied on the British American Tobacco case (supra) to support their assertion that all the basic elements of public participation, including dissemination of information, invitation to participate and consultation on the Regulations wer complied with. They contended that, although the petitioner alleged that no feedback on the public participation was given, such feedback was in fact given through the two reports that were available on the 2nd respondent’s website; and that this was acknowledged by the petitioner in paragraph 4 and Annexure “D” of its Supporting Affidavit.
[38] The 1st, 2nd and 3rd respondents placed reliance on Minister of Health and another v New Clicks South Africa (Pty) Ltd & others (CCT 59/2004) [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006 (1) BCLR 1 (CC) (30 September 2005) and Republic v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries & others, Ex Parte the Council of County Governors & another [2017] eKLR for the proposition that what matters at the end of the day is that a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say.
[39] The 1st, 2nd and 3rd respondents posited tht the Tariff Framework on the Introduction and Review of Tariff Rates falls outside the purview of the Statutory Instruments Act. They relied on Republic v Attorney General; Law Society of Kenya (Interested Party), Ex Parte Francis Andrew Moriasi [2019] eKLR in which it was held that not all guidelines, orders or directions are legislative in character and therefore statutory instruments.
[40] On whether the impuged Regulations contravene the petitioner’s right to fair administrative action, the 1st, 2nd and 3rd respondents submitted that the Regulations were developed in an open and transparent manner; and that members of the public and stakeholders wer affordd an opportunity to participate in the public participation engagements. They added that the exercise entailed the right to be heard either orally or by way of submission of memoranda; and that the petitioner fully took advantage of those opportunities and cannot therefore say that its Article 47 rights have been infringed.
[41] The 1st, 2nd and 3rd respondents therefore prayed for the dismissal of the Petition. They relied on Kenya Railways Corporation & 2 other v Okoiti & 3 others [2023] KESC 38 (KLR) for the proposition that costs ought not to be awarded in public interest litigation.
[42] The 4th respondent filed written submissions dated 22nd October 2024. It likewise presented the gist of its case and proposed the following issues for determination:
[a] Whether there was adequate public participation in the formulation of the impugned Regulations, as required by Article 10 of the Constitution;
[b] Whether the impugned Regulations comply with the requirements of the Statutory Instruments Act regarding the preparation of a Regulatory Impact Statement;
[c] Whether the impugned Regulations and the Tariff Framework were made ultra vires and in contravention of the rule of law;
[d] Whether the impugned Regulations contravene the petitioner’s right to fair administrative action;
[e] Whether costs should be awarded.
[43] The 4th respondent relied on Section 5 of the Statutory Instruments Act and submitted that the burden of ensuring public participation has been carried out is placed on the concerned regulation-making authority. It however submitted that public participation does not necessarily mean that the views given must prevail. According to the 4th respondent, the Committee on Delegated Legislation satisfied itself on the extent and quality of public participation conducted by the respondent and proceeded to approve the impugned Regulations. They further submitted that the Committee also subjected the Regulations to the test specified in the Statutory Instruments Act and ensured that the impugned Regulations were compliant.
[44] The 4th respondent also relied on the British American Tobacco case (supra) and Republic v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries & others; Ex Parte Council of County Governors & another [2017] eKLR to support their assertion that reasonable efforts were made to inform and engage the relevant stakeholders, including the petitioner. They submitted that the adequacy or otherwise of public participation is to be determined on a case to case basis; and that public participation does not necessarily mean that every individual must be heard.
[45] The 4th respondent also contended that it was upon the 1st respondent to determine how best to achieve public participation. They relied on Doctors for Life International v Speaker of the National Assembly and others (CCT12/05) [2006] ZACC 11 in which the Constitutional Court of South Africa held:
“Parliament and the provincial legislatures have broad discretion to determine how best to fulfil their constitutional obligation to facilitate public involvement in a given case, so long as it is reasonable to do so. Undoubtedly, this obligation may be fulfilled in different ways and is open to innovation on the part of the legislatures.”
[46] The 4th respondent refuted the petitioner’s allegation that no feedback was given on the conduct of public participation and urged the Court to believe their version, namely, that feedback was given by way of reports which were published on the 2nd respondent’s website; an assertion which was acknowledged by the petitioner.
[47] According to the 4th respondent, a plain reading of the Tariff Framework shows that the document served to provide MTOs with the process for notification of tariff reviews. They submitted that the document did not introduce any new legal or regulatory requirements outside the scope of what had already been provided for within the Regulations. They urged the Court to find that the Tariff Framework is not a statutory instrument for purposes of the Statutory Instruments Act. They relied on Republic v Attorney General; Law Society of Kenya (Interested Party), Ex Parte Francis Andrew Moriasi [2019] eKLR and Majid Al
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