Kenya Ships Agents Association v The Cabinet Secretary, Ministry of Mining, Blue Economy & Maritime Affairs & 4 Others
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, unless injunctive relief is granted, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
The intended appeal is not frivolous and is arguable, satisfying the first limb of the rule 5(2)(b) twin principles.
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.
Whether the appeal would be rendered nugatory absent injunctive relief
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'.
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'.
Legal principles established
#- 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
#- 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.Intended appeal to be filed within 30 days and set down for case management and hearing on a priority basis
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
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
#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.
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.
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.
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.
Issues in the judgment
#Conflicting dates for the High Court judgment
Second passage dates the same judgment 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.