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Court of AppealAllowedCivil Application No. E050 of 2026

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

Court of Appeal
25 September 2026
1,805 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal has suspended the 2024 Merchant Shipping Regulations and Tariff Framework, so shipping agents need not comply with them while the appeal is decided.

What this practically means

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Executive summary

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The applicant, Kenya Ships Agents Association, moved the Court of Appeal at Mombasa under rule 5(2)(b) of the Court of Appeal Rules, 2022 seeking injunctive orders suspending implementation of seven sets of Merchant Shipping (2024) Regulations and a Tariff Framework pending an intended appeal. The intended appeal challenges the judgment of the High Court at Mombasa (Olga Sewe, J.) dismissing its petition challenging the Regulations' constitutionality for want of public participation and their legality under the Statutory Instruments Act and Fair Administrative Action Act; each party bore its own costs below. The 1st to 3rd respondents opposed via grounds of opposition and a replying affidavit; the 4th respondent filed submissions; the 5th did not respond. Applying the settled twin principles - an arguable appeal and nugatory-ness - the court found the draft memorandum raised triable issues, including want of public participation and ultra vires action under the Merchant Shipping Act. On the second limb, the court held that implementation of the Regulations could not be undone and would expose the applicant's members to licence revocation and unfathomable financial loss not compensable by damages, while respondents conceded implementation would be progressive over five years and would suffer no prejudice from delay. Balancing the hardships, the court allowed the Motion as prayed, restrained implementation pending appeal, and directed that the intended appeal be filed within 30 days and heard on a priority basis, noting public interest in early settlement of the controversy. Costs were to abide the outcome of the intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless injunctive relief is granted, the intended appeal would be rendered nugatory

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is not frivolous and is arguable, satisfying the first limb of the rule 5(2)(b) twin principles.

Reasoning

A cursory reading of the draft memorandum of appeal disclosed intent to challenge the High Court's failure to find the Regulations unconstitutional for want of public participation, incomplete in form, not a statutory instrument, and ultra vires the Merchant Shipping Act. An arguable appeal need not necessarily succeed; it suffices that it is not frivolous and raises even one triable issue. The court, having read the amended petition, judgment and responses, concluded the first limb was surmounted.

p. 11
02

Whether the appeal would be rendered nugatory absent injunctive relief

Holding

Implementation of the Regulations before appeal determination would be irreversible and cause uncompensable loss, so the appeal would be rendered nugatory; the applicant's hardships outweigh the respondents'.

Reasoning

What is sought is restraint of implementation of the Regulations, not stay of execution of the negative judgment. Non-compliance risks revocation or non-renewal of members' licences and unfathomable financial loss not compensable by damages. Implementation is progressive over five years, so respondents suffer no prejudice from withholding it. Applying African Safari Club, the court balances the hardships of both parties, and those of the applicant's members outweigh the respondents'.

p. 17

Legal principles established

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  • The twin principles for grant of injunctive or stay orders pending appeal under rule 5(2)(b) are an arguable appeal and nugatory-ness; an arguable appeal need not succeed, it suffices that it raises one triable issue.
  • Where implementation of regulations cannot be undone, denial of injunctive relief may render a successful appeal nugatory; the court balances the hardships of both parties.

Court orders

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  1. 1.Notice of Motion dated 6th May 2026 allowed as prayed - injunctive orders suspending implementation or further implementation of the 2024 Merchant Shipping Regulations and the Tariff Framework pending determination of the intended appeal
  2. 2.Intended appeal to be filed within 30 days and set down for case management and hearing on a priority basis

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Wrote the judgment

On appeal from
High Court of Kenya at Mombasa
Petition No. E051 of 2024
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022 (injunction pending intended appeal)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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.
p. 9Twin principles under rule 5(2)(b)
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.
p. 9Threshold of arguability
In view of the foregoing, we reach the inescapable conclusion that the applicant’s Notice of Motion dated 6th May 2026 succeeds and is hereby allowed as prayed.
p. 17Final orders - application allowed
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.
p. 18Final orders - expedition direction

Issues in the judgment

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minor

Conflicting dates for the High Court judgment

minor

Second passage dates the same judgment 2024

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Ships Agents Association v The Cabinet Secretary, Ministry of Mining, Blue Economy & Maritime Affairs & 4 Others", Case Analysis (2026). Civil Application No. E050 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1896/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.