Court upholds decision to stop shipping law changes
Friday May 19 2023
The Court of Appeal has upheld a decision by a three-judge bench of the High Court declaring changes to the Merchant Shipping Act unconstitutional.
The court found that the National Assembly’s appeal that had challenged the High Court decision did not have merit and dismissed it.
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The amendment sought to exclude any shipping line owned or controlled by the government from the application of Section 16 of the Act, which, barred an owner of a ship or person providing the service of a shipping line from providing several services, including the service of crewing agencies, pilotage and clearing.
Appellate judges Gatembu Kairu, Pauline Nyamweya and Jessie Lesiit ruled that under the Constitution, Parliament is required to facilitate public participation and involvement in the legislative and its other businesses.
The National Assembly had argued that the High Court erred in concluding that there was insufficient public participation before the enactment of the Statute Law (Miscellaneous Amendment) Act 2019.
The Court of Appeal ruled that beyond notifying the public that the Act was among other statutes that were subject to proposed amendments in a Bill, no information was provided in advertisements relating to the nature or objectives of the proposed amendments to it (Act).
It concurred with the High Court that unlike other notices published in newspapers by the National Assembly inviting memoranda with respect to other Bills, which contained adequate information, the notice relating to the proposed amendment was lacking in detail.
“I am unable to fault the conclusion by the High Court that although there was some modicum of public participation, it was not reasonable in the circumstances given the dearth of information in the notices inviting memoranda and the rather short notice given,” said Justice Kairu.
The Court of Appeal said it was evident as the High Court found, the Bill was published and subjected to public participation and what was ultimately enacted was substantially different.
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“I am unable to fault the decision or reasoning by the High Court in this regard and neither am I persuaded that the decision is perverse. I do not have any basis for interfering with the decision of the High Court,” said Justice Kairu whose judgment Justices Nyamweya and Lesiit concurred with.