Joho's Merchant shipping regulations, reforms halted by court

Mining Cabinet Secretary Hassan Joho’s move to implement the 2024 Merchant Shipping Regulations and Frameworks has been halted for lack of public participation and for their unconstitutionality.

Kenya Ships Agents Association (KSAA) are challenging seven regulatory reforms that seek to domesticate the International Maritime Conventions to which Kenya is already a party.

KSAA is also challenging the constitutionality of the aforementioned regulations for alleged want of public participation and breach of the Statutory Instruments Act and the Fair Administrative Action Act.

The challenged reforms touch on the Merchant Shipping Regulations on Maritime Labour, Prevention of Collision, Maritime Transport Operations, Load Lines, Tonnage Measurement, and Recognised Organisations.

The reforms also seek to introduce and review the Tariff Framework.

KSAA's intended appeal seeks to challenge Justice Olga Sewe’s judgment dated September 19 2024, that dismissed its petition challenging the constitutionality of the said Regulations.

KSAA Chief Executive Officer Elijah Mbaru said that if the impugned Regulations were to be implemented before its intended appeal is determined, its members would be exposed to revocation or denial of trading licences, loss of business, loss of property, and unfathomable financial ruin, which cannot be compensated by an award of damages.

The Association cited Joho, Kenya Maritime Authority (KMA), the National Assembly, and Kenya Groupage Cargo Handling Association

Justices Francis Tuiyott, Kibaya Laibuta and Ngenye Macharia halted the said Regulations and Frameworks after KSAA filed an application seeking to stop the implementation of the said regulations pending appeal.

The judges directed that the intended appeal be filed within 30 days to allow for the controversy around the Associations’ constitutionality and legality of the Regulations to be settled without delay.

 “There is therefore a public interest that the controversy around their constitutionality and legality be settled without delay. For that reason, we direct that the intended appeal be filed within 30 days and set down for case management and hearing on a priority basis,” said Justice Tuiyott.

The judges said that the Mining Sector and the Blue Economy will not suffer any prejudice if the immediate implementation of the Regulations in issue was withheld pending the intended appeal.

“It is not lost on us that implementation of the impugned Regulations has, in the absence of compliance therewith, the prospect of revocation or refusal of renewal of the applicant’s (KSAA) members’ licences and implementation of the impugned regulatory framework would occasion them unfathomable financial loss,” said Justice Tuiyott.

Justice Tuiyott said that the hardships occasioned to the KSAA members outweigh those of Joho’s ministry that appear open to proposals on how KSAA intends to implement the conditions over five years.

The judges noted that Kenya Maritime Authority (KMA)’s directives do not amount to a guarantee of renewal of licences and do not suspend the regulatory framework which would prejudice KSAA members in the event that its intended appeal succeeds.

“We are not persuaded that the respondents would suffer any prejudice if the immediate implementation of the Regulations in issue was withheld pending the intended appeal as it is conceded that the implementation would be progressive over five years,” said Justice Tuiyott.

In his response, KMA’s Director Joseph Kapeku said that the impugned regulations simply implement and domesticate the International Maritime Conventions to which Kenya is already a party.

Kapeku told the courts that the said implementation would be progressive over a five- year period.

The Director said that a substantial number of licenced operators have already complied with the Regulations and continue to provide services without interruption.

In its letter dated November 21 2025, KMA said that it only requires each applicant to submit proposals on how it intends to implement the conditions over five years for consideration as part of the licensing process.

However, Justice Tuiyott noted that KMA made no express reference to members of KSAA or substantiated who those “licenced operators” are, to dislodge KSAA’s and its members’ grievance.