The High Court has declined an application by the Kenya Ships Agents Association (KSAA) to suspend the implementation of the Merchant Shipping Regulations 2024.
Instead, Justice Olga Sewe directed KSAA to serve the respondents with case documents for the application to be heard inter-parties on September 18.
"The responses to the application, if any, be filed and served within seven days from the date of service," ruled Justice Sewe.
The lobby, which has sued Mining Cabinet Secretary Hassan Joho over the declaration of the regulations, had sought the orders pending hearing and determination of the application.
The regulations relate to maritime labour, maritime transport operators, load lines, tonnage measurement, recognised organisations, and preventing collision.
In its petition at the High Court in Mombasa, the lobby group also seeks the court's intervention and redress over the publication of an undated introduction and review of the tariff framework published by the Kenya Maritime Authority (KMA)on its website in August.
The association says the promulgation of the regulations has caused it and its members to suffer prejudice.
It wants a declaration that the Merchant Shipping Regulations 2024 are unconstitutional, null, and void.
The association argues that the lack of meaningful public participation is alarming given that the regulations are far-reaching, wide, and sweep across the entire maritime industry.
“In effect, the impugned regulations amount to a regulatory overhaul of the maritime industry in Kenya,” part of the petition states.
Apart from the CS and KMA, KSAA has also sued the Attorney General and has named Kenya Groupage Cargo Handling Association as an interested party.
KSAA says that the KMA's disinterested response to the concerns it has raised on behalf of its members is alarming and indicative of the failure of industry regulators to involve stakeholders in their decision-making processes as required by law.
The association says that on July 29 one of its members received a letter from the KMA alleging breach of the Merchant Shipping (Maritime Transport Operators) Regulations published under Legal Notice No 92 of May 24, of which neither it nor its members were aware existed.
KSAA says that it was at that point that it came to learn that vide a special issue of Kenya Gazette under Kenya Gazette Supplement No 109 through legal notices No 90, 91, 92, 93, 94 and 95 by which the CS purported to promulgate the regulations.
This, it says, includes the MTO regulations, which it never heard back from the CS or KMA since 2021 when it was engaged.
On the MTO regulations, KSAA says the CS and KMA undertook no meaningful public participation given that they did not provide any feedback to its ‘dossier’ comprising its comments, concerns, and objections on the draft MTO regulations and the reasons for their rejection.
The association argues that the regulations, which are deemed to take effect upon their publication, would have the effect of radically altering the way its members conduct their maritime business, at significant cost to the lobby.
“It is impossible for an organisation to change the manner of doing business overnight or without notice and that the petitioner’s members are thus caught up in the immediate risk of falling afoul of the regulations with the resultant consequence of having their licences suspended, revoked or cancelled,” part of the petition states.
KSAA also says that there was no public consultation on the publication of the tariff framework nor was any notice given to stakeholders of the maritime industry before its promulgation.
“It is telling that when introducing the Tariff Framework, the director-general (KMA) does not make any reference to any of the powers vested on him under the KMA Act but refers to MTO Regulations casting doubt as to the statutory basis and legality of his actions,” argues KSAA.
The association also seeks for an order to be issued to quash all or any, as the court might find, of the regulations.
It also wants a permanent order of injunction issued restraining KMA from in any way giving effect, acting upon, or enforcing the introduction and Review of the Tariff Rates Framework published by KMA on its website in August 2024.
