Kenya Ships Agents Association v The Cabinet Secretary, Ministry of Mining, Blue Economy & Maritime Affairs & 4 Others

rule 5(2) (b) of the Court of Appeal Rules, 2022 seeking injunctive orders suspending the implementation or further implementation of the 2

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following 2024 Regulations and Framework pending determination of the intended appeal, namely: (i) the Merchant Shipping (Maritime Labour) Regulations; (ii) the Merchant Shipping (Prevention of Collision) Regulations; (iii) the Merchant Shipping (Maritime Transport Operators) Regulations; (iv) the Merchant Shipping (Load Lines) Regulations; (v) the Merchant Shipping (Tonnage Measurement) Regulations; (vi) the Merchant Shipping (Recognised Organisations) Regulations; and (vii) the Introduction and Review of the Tariff Framework, and that costs of the Motion do abide the outcome of the intended appeal. 2. The applicant’s intended appeal arises from the judgment and decree of the High Court of Kenya at Mombasa (Olga Sewe, J.) delivered on 19th September 2024 in determination of its petition No. E051 of 2024 in which it challenged the constitutionality of the aforementioned Regulations for alleged want of public participation as well as their legality on account of alleged breach of the Statutory Instruments Act and the Fair Administrative Action Act. 3. By its judgment dated 19th September 2025, the High Court dismissed the applicant’s petition with orders that each party 3

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bears 4

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their own costs. The impugned decision prompted the applicant’s intended appeal on the grounds set out in its undated draft memorandum of appeal annexed to the affidavit of Elijah Mbaru (the applicant’s Chief Executive Officer) sworn on 6th May 2026 in support of its Motion and deposing to the sixteen (16) grounds on which the intended appeal is anchored. 4. The applicant’s Motion was opposed by the 1 st, 2nd and 3rd respondents, who filed Grounds of Opposition dated 29 th May 2026 together with the 2nd respondent’s replying affidavit sworn by its Director, Joseph B. Kapeku, on 1 st June 2026. These were accompanied by written submissions dated 29 th May 2026 filed by learned counsel for the 3rd respondent, Mr. J. K. Kemei. Counsel cited 6 authorities, including Keushik Panchanatia & 3 Others v Prime Bank Limited & Another [2020] eKLR, submitting on the principle that the Court is incapable of staying negative orders; Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR, highlighting the twin principles for grant of orders under rule 5(2) (b) of the Rules of this Court; Kenya Red Cross Society v 5

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Mbondo Katheke Mwania [2019] eKLR; and Jason Ngumba Kagu 2 6 &

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Others v Intra Africa Assurance Company Limited [2014] eKLR, submitting that the possibility that substantial loss will occur if the order of stay is not granted is the cornerstone of the nugatory aspect for an application to succeed. 5. Counsel further cited the case of Dock Workers Union & Another v Portside Freight terminals Limited & 10 Others [2024] KESC 66 (KLR) and Gatirau Peter Munya v Dickson Mwenda Kithinji [2014] KESC 38 (KLR), submitting that the applicant has not demonstrated a meritorious or exceptional case, nor public interest, to justify interference by this Court. 6. Notably, the 4th and 5th respondents did not file any affidavits in reply to the Motion. However, the 4 th respondent filed written submissions, list of authorities and case digest dated 22 nd May 2026 in response. Counsel cited the cases of Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others (supra) and Muna v Kithinji & 2 Others [2014] KESC 30 (KLR), highlighting the twin principles 7

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for grant of orders under rule 5(2) (b) of this Court’s Rules. 7. The applicable principles in exercise of the Court’s unfettered discretion under rule 5(2) (b) of the Court of Appeal Rules, 2022 to 8

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grant injunctive or stay orders pending appeal (or intended appeal) are well settled. Firstly, an applicant has to satisfy the Court that he or she has an arguable appeal. Secondly, an applicant has to demonstrate that, unless an order of injunction or stay is granted, the appeal or intended appeal (if successful) would be rendered nugatory. These principles have been restated and enunciated by this Court in Stanley Kangethe Kinyanjui v Tony Ketter & 5 others (supra). 8. That said, it is instructive that an arguable appeal is not one which must necessarily succeed, but one which is not frivolous and merits to be argued fully. Further, it is sufficient even if the appeal raises only one triable issue. 9. A cursory reading of the grounds set out in the applicant’s draft memorandum of appeal disclose its intent to challenge the learned Judge’s decision for, inter alia, failing to find: that the impugned Regulations were unconstitutional for want of public participation; that they were incomplete in form as presented for public participation; that the framework in issue was not a 9

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statutory 1 0

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instrument; and that the respondents acted ultra vires their powers under the Merchant Shipping Act. Having read the amended petition filed before the superior court below, the impugned judgment and the responses before us, we think that the intended appeal is not frivolous and to our mind is arguable. Accordingly, the applicant has surmounted the 1st limb of the twin principle for grant of the temporary injunctive relief sought pending appeal. 10. On the 2nd limb of the twin principle, namely the nugatory aspect, it was held in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 others (supra) that whether or not an appeal will be rendered nugatory depends on whether or not what is or ought to be stayed or restrained by way of injunctive relief, if allowed to happen, is reversible; or, if not reversible, whether damages would reasonably compensate the aggrieved party. We are also guided by the observations Limited made in Reliance Bank v Norlake Investment Limited (2002) 1 EA 227 that factors which render an 1 1

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appeal nugatory are to be considered within the circumstances of each case and, in so doing, the Court is bound to consider the conflicting claims of both sides. 1 2

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11. For the avoidance of doubt, what is sought are orders to restrain implementation of the 2024 Regulations pending appeal, and not stay of execution of the judgment dismissing the applicant’s petition. The applicant’s case is 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. 12. As contended by the 2nd respondent, “a substantial number of licenced operators have already complied with the Regulations and continue to provide services without interruption”. Notably, the 2nd respondent makes no express reference to members of the applicant or substantiate who those “licenced operators” are so as to dislodge the applicant’s and its members’ grievance. In its submissions, the 2nd respondent goes on to state with regard to its letter dated 21st November 2025: “it only requires each applicant to submit proposals on how it intends to implement the conditions over a five-year period for consideration as part of the 1 3

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licencing process. It does not amount 1 4

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to a guarantee of renewal and does not suspend the regulatory framework.” 13. 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 members’ licences and regulatory framework implementation would occasion of the them impugned unfathomable financial loss. We call to mind the case of African Safari Club Limited vs Safe Rentals Limited [2010] eKLR where this Court held: “…with the above scenario of almost equal hardship by the parties, it is incumbent upon the Court to pursue the overriding objective to act fairly and justly…to put the hardships of both parties on scale… We think that the balancing act is in keeping with one of the principles aims of the oxygen principle of treating both parties with equality or placing them on equal footing in so far as is practicable.” 14. In short, the Court is to decide which party’s hardship is greater. With that in mind, we are of the considered view that, if the applicant’s prayer for injunctive 1 5 orders to restrain

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implementation of the impugned Regulations are denied and the appeal eventually 1 6

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succeeds, the applicant’s appeal would be rendered nugatory as the implementation sought to be restrained cannot be undone. To our mind, the hardships occasioned to the applicant’s members outweigh those of the respondents, who appear open to “… proposals on how it [the applicant] intends to implement the conditions over a five-year period” while, on the other hand, the 2nd respondent’s directives do not amount to “… a guarantee of renewal [of licences] and does not suspend the regulatory framework,” which would prejudice the applicant’s members in the event that its intended appeal succeeds. 15. On the other hand, 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 a five- year period. 16. In view of the foregoing, we reach the inescapable conclusion that the applicant’s Notice of Motion dated 6 th May 2026 succeeds and is hereby allowed as prayed. 17. Notwithstanding the decision we have reached, we do not downplay the contention by the respondents that the impugned regulations simply implement and domesticate The International 1 7

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Maritime Conventions to which Kenya is already a party. 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. 18. Orders accordingly. Dated and delivered at Mombasa this 25th day of September, 2026. F. TUIYOTT ………………………………… JUDGE OF APPEAL DR. K. I. LAIBUTA CArb, FCIArb. …………………………………… JUDGE OF APPEAL G. W. NGENYE-MACHARIA ………………………………... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR 10

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