The maritime sector is one of the most important sectors in any countries economy. It contributes to the development of a country whose territory also consists of water bodies either surrounded by the ocean or even inland water bodies such as lakes and rivers. This sector features activities such as shipping (import and exports), water transport, trade, fishing and mineral exploitation. These activities create numerous employment opportunities and generates income which in turn contributes to the economy.

Legal framework of maritime in Kenya.

The Kenyan maritime sector is governed by both international and national rules and regulations. These laws mainly provide for registration of ships, piracy, prevention of pollution, wreck and salvage, safety of cargoes, insurance claims, fishing, personal injuries on board of vessel, prevention of collisions, etc.

The maritime sector is under the State department, Maritime Safety and Transport in the Ministry of Transport, Infrastructure, Housing and Urban Development which is mandated to formulate maritime transport and shipping policies, monitoring port development and facilities improvement and ratification of International Maritime conventions and maritime related agreements.

The legal framework of the maritime sector in Kenya is made up of the following laws; -

1. The Constitution
2. The Merchant Shipping Act, 2009.
3. The Kenya Maritime Authority Act.
4. The Kenya Ports Authority Act (Cap 391)
5. Maritime Zones Act (CAP 371)
6. Maritime Insurance Act (Cap 390)
7. The Ferries Act (Cap 410)
8. The Carriage of Goods by Sea Act Cap.392.
9. The Environment Management and Coordination Act
10. Other laws

1. The Constitution of Kenya, 2010

The application of International laws in Kenya is provided under Article 2(5) and 2(6) of the Constitution of Kenya which states that general rules of international law shall form part of the laws of Kenya and any treaty or convention ratified by Kenya shall form part of the law of Kenya.

Kenya is a signatory of the United Nations Convection on the Law of the Sea, 1982 (UNCLOS) and is also a member state of The International Maritime Organization (IMO). The IMO is the United Nations Specialized Agency tasked with the Responsibility for Safety and Security of Shipping and Prevention of Marine Pollution by ships. The IMO has numerous instruments on maritime safety and security, efficiency of navigation and prevention and control of pollution from ships.  These instruments include ;- the International Convection for Safety of Life at Sea (SOLAS), 1974 as amended, the International Convention on Load Lines (LL) 1966, the International Convection on Standards of Training, Certification and Watching for Seafarers (STCW) 1978 as amended, the International Convection for the Prevention of Pollution from Ships and its Protocol (MARPOL), 1973, the International Regulations for Preventing Collisions at Sea (COLREG), 1972, the International Convection on Civil Liability for oil pollution damage and its Protocol (CLC) 1969/92  and the International Convection on Tonnage Measurements of Ships,1969 (TONNAGE). These instruments form part of the laws of Kenya by virtue of article 2(5) and 2(6) of the Constitution.

Another provision of the Constitution which relates to the maritime/ law of the sea sector is Article 5 which states “Kenya consists of the territory and territorial waters comprising Kenya on the effective date and any additional territory and territorial waters as defined by an Act of Parliament.”

2. The Merchant Shipping Act, 2009.

This is the main Act in regard to the Maritime Sector in Kenya. It was assented to on 28^th May 2009 and came into force on 1^st September 2009. It repealed the Merchant Shipping Act (Cap 389) and the Lakes and Rivers Act (Cap 409).  Before this Act, the maritime sector was mainly governed by the Merchant Shipping Act, 1967 which was an outdated act heavily borrowed from the English Merchant shipping Act, 1894. Further in 2005, there was an upsurge of maritime piracy in the Indian ocean which led to major loses in the Kenyan shipping industry. The Act was thus enacted to cater for such issues and established a comprehensive and modern legal regime for merchant shipping.

The mandate of this Act as derived from its long title is; to make provision for the registration and licensing of Kenyan ships, to regulate proprietary interests in ships, the training and the terms of engagement of masters and seafarers and matters ancillary thereto; to provide for the prevention of collisions, the safety of navigation, the safety of cargoes, carriage of bulk and dangerous cargoes, the prevention of pollution, maritime security, the liability of ship-owners and others, inquiries and investigations into marine casualties; to make provision for the control, regulation and orderly development of merchant shipping and related services; generally to consolidate the law relating to shipping and for connected purposes. The act also creates numerous offences.

Section 8 of the Act empowers the Cabinet Secretary to make regulations for the better carrying out into effect the provisions of the Act. The regulations include; -

1. The Merchant Shipping (Fees) Regulations, 1994
2. The Merchant Shipping (Application of Safety Convention, 1974) Order, 2004 on
3. The Merchant Shipping (Maritime Service Providers) Regulations, 2011
4. The Merchant Shipping (Port State Control) Regulations, 2011
5. The Merchant Shipping (Fees) Regulations, 2011
6. The Merchant Shipping (Licensing of Vessels) Regulations, 2012
7. The Merchant Shipping (Small Vessel Safety) Regulations, 2012

3. The Kenya Maritime Authority Act.

The Kenya Maritime Authority was originally established in 2004 by President Mwai Kibaki through a Presidential order. It was legally constituted under the Kenya Maritime Authority Act in 2006. The Kenya Maritime Authority Act establishes the Kenya Maritime Authority which is the body with responsibility to monitor, regulate and coordinate in the maritime industry and all other matters.

The Act essentially dispenses the functions, administration, and operations of the Kenya Maritime Authority. The principal functions of the Act include; administering and enforcing the provisions of the Merchant Shipping Act, 2009 and any other legislation, implementation of maritime policies, advising the government on legislation, maintain and administer a ship register, enforce safety of shipping including compliance with construction regulations, maintenance of safety standards, deal with maritime search and rescue and co-ordinate the activities of the Kenya Ports Authority and Kenya Navy and any other body, ensure maritime safety and prevention of pollution, oversee training, recruitment and welfare of seafarers, conduct investigations into maritime causalities including a wreck, and regulate activities with regard to shipping in the inland waterways just to mention a few.

4. The Kenya Ports Authority Act

The Kenya Ports Authority Act (Cap 391) establishes the Kenya Ports Authority whose mandate is to maintain, operate, improve and regulate all sea and inland waterway ports in Kenya. This Act outlines the management, functions, powers and operation of the Kenya Ports Authority.  With respect to goods, the Act lays out provisions on determining conditions for handling and warehousing of goods, conditions and rates and charges applicable of goods, description of the goods to be delivered on dangerous or offensive goods, and unclaimed goods in possession of the Authority.  

Additionally, the Act also contains provisions on control of all Kenyan ports such as and specifically on the requirement for compulsory pilotage, port rates, arrest of ship for port charges, clearance and liability for demurrage. It also contains provisions on liability in case of loss/damages of goods or accidents in the ports. Lastly, the Act creates numerous offences and stated the penalties if found guilty of such offences.

5. Maritime Zones Act

Article 5 of the Constitution 2010, provides that Kenya consists if the territory and territorial waters. The Maritime Zones Act is therefore the Act which; consolidates the law relating to the territorial waters and continental shelf of Kenya, provides for the establishment and delimitation of the exclusive economic zone and the exploration, exploitation, and management of maritime zone resources.

The Act describes the breath of the territorial waters of Kenya, the area of the exclusive economic zone of Kenya and the exercise of sovereignty of Kenya in the exclusive economic zone including exploration, exploitation, conservation and management of the natural resources of the zone and rights of other states in the exclusive economic zone. Under the Act, and with respect to international law other states shall enjoy the right of navigation and over-flight, laying of submarine cables and pipelines and other lawful uses.  Additionally, the Act also provides that the minister may make regulations to enhance the object and purposes of the Act. The Minister may also provide for a fine in case of breach of any of the regulations.

6. Maritime Insurance Act

The Marine Insurance Act came into force on 19^th November, 1968 and has been amended severally over time to meet modern demands, the most recent amendment being by the Finance Act, 2018. The Marine Insurance Act governs insurance in the maritime sector.  It defines marine insurance as a contract whereby the insurer undertakes to indemnify the assured against perils consequent on or incidental to the navigation of the sea i.e. perils of the seas, fire, war, pirates, rovers, thieves, captures, seizures, restraints and detainments of foreign governments and peoples, jettisons and barratry and any other perils of the like or which may be designated by policy.

The Act also describes what are insurable interests, measure of insurable value, form of the insurance policy, the premium and assignment of policy, provisions a double- insurance and warranties, the risk in voyages, salvage and general average, measure of indemnity and rights of the insurer. It is important to note that under the Section 20 (5) Insurance Act (Cap 487), importers are required to prove valid marine insurance underwritten by local Kenyan insurance company before their goods can be cleared by the Kenya Revenue Authority. This law came into force on 1^st January, 2017.

7. The Ferries Act

The Ferries Act, Cap 410 is the smallest of maritime related act. It comprises six Sections and as its name suggests the Act primarily provides on ferries.  This Act outlines the places where ferry service is allowed and penalties for carrying on ferry service in a prohibited area.

The minister may make rules for regulating ferries, fixing the amount of license fees to be paid and the charges of fares which may be charged , regulating and controlling the conduct of passengers in ferries, the embarkation and disembarkation of persons, animals, goods and vehicles and for regulating the us e of the landing places, approaches and ramps maintained in connection with any service or ferry boats.

8. The Carriage of Goods by Sea Act Cap.392

The Carriage of Goods by Sea Act is a small act with 7 sections and 1 schedule. It came into force in 1926. It is mainly concerned with regulation of carriage of goods by sea, rules relating to bills of lading, risks, responsibilities & liabilities of carriers and the rights & immunities of carriers.

9. Environment Management and Coordination Act, 2015

The Environment Management and Coordination Act, also touches on conservation of the marine environment. Section 55(2) of the Act provides that the National Environmental Management Authority (NEMA) in consultation with relevant lead agencies to ‘prepare a survey of the coastal zone management plan based on the report of such survey. Section 55(2) requires the Cabinet Secretary responsible for environment in consultation with relevant lead agencies to issue appropriate regulations to prevent, reduce and control pollution or other form of environmental damage in the costal focus

10. Other Acts

Other Acts concerned with the maritime sector but more specifically on the conservation of the marine environment include; -

1. The Wildlife Conservation and Management Act, 2013 which provides for protection, conservation and management of wildlife which includes marine animals, shoreline birds and marine threatened species. This Act has provided for establishment of marine conservation areas in the form of Marine Parks, Marine Reserves and sanctuaries
2. The Fisheries Management and Development Act which establishes the Kenya Fisheries Service and provides for conservation, management and development of fisheries all water bodies in Kenya
3. The Water Act, 2016.
4. The Coast Development Authority Act, Cap 449 which establishes the Coast Development Authority whose mandate is to plan and coordinate the implementation of development projects in the entire coast region and the exclusive economic zone.

JURISDICTION MARITIME MATTERS

Section 4 of the Judicature Act, Cap 8 Laws of Kenya, provide for jurisdiction of courts in relation to maritime laws.  The said provisions state as follows:-

1. The High Court shall be a court of admiralty, and shall exercise admiralty jurisdiction in all matters arising on the high seas, or in territorial waters, or upon any lake or other navigable inland waters in Kenya.
2. The admiralty jurisdiction of the High Court shall be exercisable-

(a)  over and in respect of the same persons, things and matters; and

(b)  in the same manner and to the same extent; and

(c)  in accordance with the same procedure, as in the High Court in England, and shall be exercised in conformity with international laws and the comity of nations.

3. In the exercise of its admiralty jurisdiction, the High Court may exercise all the powers which it possesses for the purpose of its other civil jurisdiction.
4. An appeal shall lie from any judgment, order or decision of the High Court in the exercise of its admiralty jurisdiction within the same time and in the same manner as an appeal from a decree of the High Court under part VII of the Civil Procedure Act (Cap. 21).

OVERLAPS OF THE LEGAL FRAMEWORK OF MARITIME LAW

There are numerous institutions tasked with management of marine environment.  The Kenya Maritime Authority, National Environmental Management Authority (NEMA), Kenya Defence Forces (KDF), Kenya Ports Authority (KPA), Kenya Police, Kenya Wildlife Service, Coastal Development Authority (CDA), The State Department of fisheries and state department of shipping and maritime affairs, Kenya Marine Fisheries Institute. Although the Kenya Maritime Authority is the main agency for regulation and oversight of all maritime affairs in the country, these agencies also govern the maritime affairs which touch on them.

This has resulted in conflict in implementation of the maritime laws. For instance, there is an overlap in permit and license requirements as you find that different agencies require different permits in relation to one activity. The permit or license seeker therefore incurs more cost and uses up time before carrying out the activity they want. Another disadvantage of numerous agencies is lack of coordination of officers to enforce the legislation as you find different agencies appoint different officers who carry out similar duties. Lastly, you find different criminal offences and penalties in the same natural resource by different legislation. This can lead to confusion as to what legislation to use to prosecute,

CONCLUSION

The maritime sector has grown overtime but it is yet to attain its full potential. There have been steps to bring it to its optimum. For instance, in an attempt to improve the maritime sector, the Kenyan vision 2030 includes the development of rules and regulations for maritime laws such as the Merchant Shipping bill, the Marine Pollution bill, the Carriage of Goods by Sea bill, the Kenya Ferry Corporation bill, the Marine Insurance bill, the Admiralty Court jurisdiction bill. These bills should be enacted by 2030. The maritime laws are also amended regularly to meet

Further, the International Maritime Organization (IMO) supervises its member states progress on the implementation of the provisions of the international instruments in relation to maritime safety, security and protection of the marine environment.  IMO Member State Audit Scheme (IMSAS) the mandatory audit of Member States which commenced from 1 January 2016, which assess a member states of how effectively it administers and implements those mandatory IMO instruments. These has therefore kept Kenya on its toes, as the country is always working towards implementing the IMO instruments

It can therefore be concluded that for Kenya to reach its optimum in the maritime sector and be in sync with the international standards, they need to take more positive steps towards improving the sector. This can be done by ensuring that the set goals in the Kenya vision 2030 are realized and the conflicts, overlaps and duplicity caused by the different agencies and legislation is corrected by either unifying the duties and powers of the agency or empowering one agency to come up with one system.