Merchant Shipping Act

Port authorities and dock owners have their liability for loss or damage to ships or goods limited by reference to the tonnage of the largest Kenya ship within their area; specified calculation and exceptions apply.

For passenger claims for loss of life or personal injury, the shipowner's total liability is limited to 175,000 special drawing rights multiplied by the number of passengers the ship is authorised to carry according to its certificate.

Section 397 sets out rules for conversion of units of account: (1)(a) the relevant date is the date the limitation fund has been constituted, payment is made, or security is given under section 399; or (1)(b) if no sum has been fixed for that date, the last preceding date for which a sum has been fixed. Subsection (2) states when a particular sum in dollars has been fixed for a particular date or, if not, when a sum has been fixed for the last preceding date.

Limits of liability under section 396 apply to the aggregate of all claims on any distinct occasion against the shipowner and persons for whose acts, neglect or defaults they are responsible; subsection (1) lists categories of claims that are aggregated.

A person alleged to be liable may constitute a limitation fund by depositing with the Court an amount at least equivalent to the limit in section 391 or 396 or by producing a guarantee acceptable to the Court (with interest); that fund is available only for payment of claims for which limitation can be invoked, and the Court may stay proceedings relating to such claims.

Section 400 sets rules for distributing a fund among claimants, allows the court to exclude late claimants or direct payment of costs, permits the court to postpone distribution considering later claims, and gives subrogated payers the rights of the compensated claimant up to the amount paid.

A person who has claimed against a constituted limitation fund may not pursue the same claim against any other assets of the person for whom the fund was constituted, but this bar applies only if the claimant sues in court and the fund is actually available and freely transferable.

If a limitation fund is constituted in Kenya, the rules about its constitution, distribution, and related procedures are governed by Kenyan law.

When two or more ships are at fault for damage or loss, liability must be apportioned in proportion to each ship's degree of fault; if degrees cannot be established it is apportioned equally; the rule applies to owners, persons responsible for navigation (including charterers where applicable), and preserves contractual and legal exemptions and limits.

Owners of ships are jointly and severally liable for loss of life or personal injury on board caused by the fault of that ship and any other ship.

Owners who have paid more than their share of damages for loss of life or personal injury on board a ship may recover the excess from other ship owners in proportion to their fault; persons entitled to such contribution have the same rights to recover as those entitled to sue for damages.

Proceedings to enforce contribution for any overpaid proportion of damages for loss of life or personal injury must be brought within one year from the date of payment, subject to the court's power to extend that period on conditions.

This Part applies whenever any person referred to in section 385 seeks to limit liability before the court or to procure release of a ship or other property, or discharge security within Kenya.

Section 408 excludes liability for loss or damage to property in specified cases (fire; undeclared valuables lost to theft/robbery) and extends that exclusion to the master, crew or servants, subject to exceptions; it applies to Government ships and defines "owner" to include part owners, charterers, managers and operators.

Section 409 names enforcement officers (Director-General; Registrar of Ships; Registrar of Seafarers; Chief Receiver of Wreck; Chief Surveyor of Ships), states that surveyors of ships may be appointed generally or for particular cases, lists matters surveyors may investigate including accidents, compliance, and condition of hull and machinery, and defines "surveyor of ships".

The Cabinet Secretary may make regulations to protect and preserve the marine environment from pollution by matter from ships.

Officers (including Kenyan consular officers) have powers in relation to Kenyan ships to require production and inspection of log books and other documents, to require lists of persons on board, to muster the crew, and to require explanations; failure without reasonable excuse to produce documents is an offence punishable by a fine not exceeding two hundred and fifty thousand shillings or imprisonment for up to fifteen months or both.

Surveyors of ships may board and inspect ships, equipment, articles and required documents at reasonable times; these powers can be exercised outside Kenya for Kenyan ships and by proper officers; inspectors must not unnecessarily detain ships but may require docking for surveys when necessary; inspectors may enter premises to check provisions and water intended for Kenyan ships; obstructing inspectors or failing to comply with docking requirements is an offence punishable by a fine or imprisonment.

Regulations under sections 8, 360, 410 and 450 may set penalties of up to ten million shillings, or imprisonment up to ten years, or both, for contraventions on conviction.

Inspectors appointed under section 409(3) have wide powers to enter premises and ships, examine and investigate, take samples, require attendance and assistance, seize items and ensure evidence is preserved, subject to limited protections and procedural rules.

Section 414 creates offences for obstructing inspectors, failing to comply with requirements, preventing compliance by others, and making false statements in compliance-related declarations; it prescribes penalties (a fine not exceeding one hundred and twenty thousand shillings, or imprisonment up to one year, or both), preserves legal professional privilege against compelled production under section 411, entitles persons who comply with certain requirements under section 413(2)(i),(j),(k) to recover prescribed expenses, and provides that payments under subsection (3) shall be made from money provided by Treasury.

Inspectors must state their opinion, specify which provisions are contravened and give reasons, and must require the person served to remedy the contravention within a period specified in the notice.

An inspector appointed under section 409(3) may serve a "prohibition notice" on a person if relevant activities aboard a ship are or will be likely to involve the risk of serious personal injury; such a notice can require that the named activities not be carried on by that person or that the ship not go to sea.

Improvement or prohibition notices may include directions to remedy contraventions (including offering the served person a choice of remedies), must not require measures more onerous than necessary, and an inspector may withdraw the notice before the specified period ends or extend that period when arbitration is not pending.

An arbitrator appointed under this section has powers similar to those of an inspector under section 413(2); the section also lists qualifications for an arbitrator.

If an arbitrator finds a direction in a prohibition notice unreasonable, the arbitrator may award compensation to the person served; any compensation awarded must be paid from money provided by the Treasury. The arbitrator’s power to award is subject to subsection (3).

Contravening an improvement or prohibition notice is an offence carrying fines up to 250,000 shillings and/or imprisonment (up to 15 months for improvement notice contraventions; up to 2 years or other alternatives for prohibition notice contraventions); proving due diligence is a defence.

Officers (e.g., Managing Director, Manager, Director or similar) can be held criminally liable alongside the body corporate if an offence by the company is proved to have been committed with their consent, connivance or neglect; documents for prosecuting a foreign company as owner of a ship may be served on the ship's master and authorised servers have the right to go on board; “foreign company” is defined by reference to the Companies Act (Cap. 486).

An officer appointed under the Act and specially authorized in writing by the Director of Public Prosecutions may conduct prosecutions for offences under the Act.

Persons who commit offences without a specific penalty are liable on conviction to a fine up to ten million shillings, or imprisonment up to ten years, or both; continuing offences additionally attract a fine up to fifty thousand shillings for each day (or part) the offence continues after conviction.

For jurisdictional purposes, an offence or complaint under this Act is treated as having occurred in any place in Kenya where the offender or the person complained against may be for the time being.

Where the court's area of jurisdiction is on or projects into the coast or adjacent navigable waters, the court has jurisdiction over offences under this Act committed on vessels on or off that coast or in/near those waters, and over all persons on board or belonging to those vessels.

Offences onboard any Kenyan ship on the high seas.

Section 433 makes certain acts by Kenyan seafarers offences, treats some acts as if done within the court's jurisdiction for trial, applies subsection (1) to persons employed within three months before the act, and extends application to omissions.

Consular officers may order Kenyan ships to carry offenders and witnesses to Kenya, with limits and conditions; masters must hand offenders to police on arrival; the Treasury must pay certain expenses.

If a detained ship proceeds to sea before being released, the master commits an offence punishable by a fine not exceeding one million shillings or imprisonment for up to five years or both; owners or persons who send such a ship to sea and are party to the offence are also liable. The section sets out liabilities for taking officers to sea, release conditions including payment of ten million shillings or provision of security (including security not less than one million shillings acceptable to the Director-General), powers for customs and port officers to refuse clearance or detain until documents are produced, and a seven-day procedural period and related release conditions.

Courts may order unpaid seafarers’ wages or other sums to be levied by distress; courts have power to levy unpaid fines or costs by distress or arrest and sale of the ship; courts may direct a fine (or part) to be paid to a person who incurred expenses to repair damage caused by an offence.

If a person whose evidence is required in civil proceedings cannot be found in Kenya, a deposition they previously made abroad on the same subject matter is admissible in those proceedings, subject to subsection (2).

The Director-General may compound certain offences, order payment up to the fine amount or condemn forfeited items; the Director-General must not exercise these powers unless the person admits the offence in a prescribed form and requests the Director-General to deal with it; orders must be in writing, attach the person's request, and specify the offence and penalty.

Lists categories of documents that are admissible and inspectable as evidence, and states that a certificate issued under regulations made pursuant to section 170 is admissible in evidence.

Documents made admissible by this section are admissible in court; copies or extracts are also admissible if proved or certified; persons may obtain certified copies on payment of a reasonable fee set by the Director-General; officers who knowingly certify false copies commit an offence punishable by a fine or imprisonment.

Copies or reproductions may be supplied for public inspection in place of originals, but the original must be made available if the copy is illegible; and subsection (3) treats a copy taken from a reproduction as a copy for the purposes of this section and section 440(2).

A defendant may prove exceptions.

Sets out methods for serving documents (delivery, leaving at address, posting), special rules for service on masters, managing owners, agents and ships, service on corporations and partnerships, notices to inspectors, and what counts as a proper address.

The Government, public officers and persons authorised under the Act are protected from legal action for acts or omissions done in good faith while exercising powers, authorities or duties under the Act.

The Director-General may, subject to any conditions he imposes and if satisfied of the matters in subsection (2), exempt any ship from requirements of this Act or dispense with observing them.

Remuneration shall be paid to any assessor appointed under this Act out of moneys provided by the Authority.

All consular officers of Kenya must make and send reports to the Director-General about any matter relating to Kenyan seafarers.

Director-General may prepare, approve and alter official forms; must mark and publish notice and make them available; non‑compliant documents may be inadmissible and false forms are an offence punishable by fine or imprisonment.

All fees payable under this Act shall be paid into the Authority.

Regulations may be made for the listed safety, security, environmental, welfare and crew-composition purposes and may have specified scope and incidental transitional provisions.

Section 451 sets out how the Act applies to non-Kenyan ships (extending subsection (1)(a) to specified non-Kenyan ships and persons, and subsection (1)(b) in specified circumstances), permits regulations to include transitional, supplementary and consequential provisions, and defines "non-Kenyan ships" as ships not registered in Kenya.

The Cabinet Secretary may, from time to time by notice in the Gazette, publish international conventions, treaties or agreements relating to ships and shipping (including amendments, replacements and instruments that apply to or cease to apply to Kenya) and the reservations entered by Kenya.

The Director-General may suspend a Kenyan ship's Certificate of Registry where there is any contravention of a requirement of this Act or its regulations, until the contravention is rectified.