Merchant Shipping Act

Section 1. Short title Section This Act may be cited as the Merchant Shipping Act.

Section 2. Interpretation Section of a kind to which the Load Line Convention applies; and

Section 3. Application of the Act Section 3(1)(a) Kenyan ships wherever they may be; and Section 3(1)(b) all other ships while in a port or place in, or within the territorial and other waters under the jurisdiction of Kenya. Section 3(2)(a) vessels of the Kenya Police; Section 3(2)(b) vessels of the Kenya Navy or foreign navy; Section 3(2)(c) aircraft of the defence forces, any other ships belonging to or under the control of the Government while employed otherwise than for profit or reward in the service of the Government. Section 3(3) The Cabinet Secretary may make regulations prescribing the manner and extent to which the provisions of this Act shall apply to Government ships operated for non-commercial purposes. Section 3(4) This Act applies to regulation of ships in inland waters.

Section 4. Power of Cabinet Secretary to administer Act Section The Cabinet Secretary shall, in addition to any other power conferred on him by any other provisions of this Act, be responsible for the administration and implementation of this Act.

Section 5. Delegation by Cabinet Secretary Section 5(1) The Cabinet Secretary may, by notice in the Gazette , delegate to the Director-General or any other officer appointed under this Act and specified in such notification, the exercise of any powers (other than the power to make regulations) or the performance of any duties conferred or imposed on him by or under this Act, subject to such conditions and restrictions as may be specified in such notification. Section 5(2) A delegation in the terms of subsection (1) shall not affect the exercise of such powers of the performance of such duties by the Cabinet Secretary. Section 5(3) Every officer purporting to act pursuant to any delegation under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of such delegation.

Section 6. Relief from prosecution Section No action shall lie against the Government or any public officer or other person appointed or authorised to perform any function under this Act in respect of anything done or omitted to be done by him in good faith in the exercise or performance of any power, authority or duty conferred or imposed on him under this Act.

Section 7. Power of Cabinet Secretary to give directions Section The Cabinet Secretary may from time to time give the Director-General such general directions, not inconsistent with the provisions of this Act or any regulations made thereunder, on the policy to be pursued in the administration of this Act, as he may consider necessary, and the Director-General shall forthwith take such steps as are necessary or expedient to give effect thereto.

Section 8. Regulations Section 8(1) The Cabinet Secretary may make regulations generally for the better carrying out into effect the provisions of this Act. Section 8(2)(a) the extent to which this Act may be applicable to Government ships which are engaged in government non-commercial service; Section 8(2)(b) the facilitation of the enforcement of any international convention or instrument relating to this Act; Section 8(2)(c) prescribing anything that may be prescribed under this Act; Section 8(2)(d) prescribing fees, stamp duties and all other payments required under this Act; Section 8(2)(e) the holding of enquiries and investigations; Section 8(2)(f) port state control of ships while in Kenyan ports; Section 8(2)(g) the granting and withdrawal of licences for maritime service providers; Section 8(2)(ga) prescribing the requirements for licencing as a maritime services provider, the conditions subject to which a maritime services provider should operate and the standards to be maintained in the provision of services; Section 8(2)(h) oversight and monitoring of service delivery in the maritime sector, having regard to availability, quality, standards of service, cost, efficiency...

Section 9. Director-General to maintain documents Section all conventions and international instruments referred to in this Act that have application in Kenya;

Section 10. Surveys, inspections and monitoring Section 10(1) The Director-General or a person authorised by him for the purpose, may board, inspect and survey any ship to which this Act applies, enter port facilities in Kenya, demand the production of documents, records and other evidence; and take testimony of witnesses under oath, for the purposes of conducting inspection and survey and for undertaking other activities authorised or required under this Act. Section 10(2) In carrying out the duties under subsection (1), the Director-General or a person authorised by him shall follow a laid down code of conduct.

Section 11. Communication, co-operation and consultation Section departments and agencies of the Government;

Section 12. Registrar of Kenyan Ships and Registrar of Seafarers Section 12(1) The Director-General shall be the Registrar of Kenyan Ships and the Registrar of Seafarers. Section 12(2) In exercise of his powers under subsection (1) the Director-General may designate any other officer to perform the duties of a registrar of Kenyan ships and a registrar of seafarers.

Section 13. General power to dispense with requirements of the Act Section 13(1) The Director-General may, upon such conditions, if any, as he thinks fit to impose, exempt any ship from any specified requirement of, or prescribed under, this Act, or dispense with the observance of any such requirement in the case of any ship, if he is satisfied, as respects that requirement, of the matters specified in subsection (2). Section 13(2)(a) that the requirement has been substantially complied with in the case of that ship or that compliance with it is unnecessary in the circumstances; Section 13(2)(b) that the action taken or provision made as respects the subject-matter of the requirement in the case of the ship is as effective as, or more effective than, actual compliance with the requirement.

Section 14. Restriction on trading in Kenyan waters Section 14(1)(a) is a Kenyan ship; or Section 14(1)(b) has a certificate of foreign registry. Section 14(2) Subject to the provisions of any regulation or any treaty or agreement with any foreign Government, only Kenyan ships may be engaged in any local trade in Kenyan waters. Section 14(3) The Cabinet Secretary may make regulations to provide for the circumstances under which foreign ships may engage in local trade in Kenyan waters. Section 14(4) Every owner, agent and master of a ship that contravenes subsection (1) or (2) commits an offence and each shall be liable, upon conviction, to a fine not exceeding one million shillings and the ship shall be liable to be detained until such time as the owner, agent or master shall each have paid their respective fines.

Section 15. Requirement for insurance cover Section 15(1)(a) in respect of the shipowners liabilities to a crew member under any provision of Part VII; and Section 15(1)(b) claims in respect of loss or damage caused by any cargo carried on board the ship. Section 15(2) Every foreign ship anchoring in or trading in or from Kenyan waters or entering a port in Kenya shall carry insurance cover against risks of loss or damage to third parties. Section 15(3) Where a ship is in contravention of this section, the owner shall be deemed to have committed an offence and shall be liable, upon conviction, to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or to both such fine and imprisonment.

Section 16.[Deleted by Act No. 19 of 2023, Sch.]

Section 17. Kenyan ship Section 17(1) A ship shall be regarded as a Kenyan ship for the purposes of this Act if the ship is registered in Kenya under this Part. Section 17(2)(a) of 24 metres or more; Section 17(2)(b) owned by persons qualified to own a Kenyan ship; and Section 17(2)(c) not exempted from registration.

Section 18. Qualifications for owning Kenyan ship Section 18(1)(a) the Government; Section 18(1)(b) nationals of Kenya; Section 18(1)(c) corporation registered in Kenya; Section 18(1)(d) individuals or corporations owning ships hired out on bareboat charter to nationals of Kenya; Section 18(1)(e) individuals or corporations in bona fide joint venture shipping enterprise relationships with nationals of Kenya as may be prescribed; Section 18(1)(f) such other persons as the Cabinet Secretary may by order determine. Section 18(2) The Cabinet Secretary shall make regulations prescribing the manner and conditions under which any other persons or classes of persons may own Kenyan ships.

Section 19. Obligations to register Kenyan ship Section 19(1) Whenever a ship is owned wholly by persons qualified to own a ship in Kenya, that ship shall, unless it is registered in some other State, be registered in Kenya in the manner provided in this Part. Section 19(2) Every Kenyan ship, and every Kenyan Government ship shall be registered in one of the register books kept pursuant to section 25. Section 19(3) Where the master of any ship which is owned wholly by persons qualified to own a registered Kenyan ship fails, on demand, to produce the Certificate of Registry of the ship or such other evidence as satisfies the Director-General that the ship complies with the requirements of subsection (1), that ship may be detained until that evidence is produced. Section 19(4) Any ship which is wholly owned by persons qualified to own a Kenyan ship, and which immediately before the commencement of this Part, is registered in Kenya in accordance with the Merchant Shipping Act (Repealed) is entitled to be registered under this Act, but subject to such conditions as may be prescribed. Section 19(5) A ship required to be registered under this Act shall not be recognised as a Kenyan ship...

Section 20. Refusal of registration Section 20(1)(a) the condition of the ship so far as is relevant to safety, security or to any risk of pollution; Section 20(1)(b) the safety, health and welfare of persons employed or engaged in any capacity on board the ship; or Section 20(1)(c) the possibility that the ship is being used for criminal purposes, Section 20(2) Where it appears to the Registrar of Ships that a ship in respect of which an application for registration has been made is not entitled to be registered, having regard to the matters mentioned in subsection (1)(a), (b) or (c), he shall inform the applicant, or any representative person for the time being appointed in relation to the ship, and the ship shall not be registered. Section 20(3) Any person aggrieved by the decision of the Registrar may appeal to the Director-General whose decision shall be final.

Section 21. Termination of registration Section 21(1)(a) having regard to the matters mentioned in section 20(1)(a), (b) or (c), it would be detrimental to the interests of Kenya or of international shipping for a registered ship to continue to be registered; Section 21(1)(a)(i) having regard to the matters mentioned in section 20(1)(a), (b) or (c), it would be detrimental to the interests of Kenya or of international shipping for a registered ship to continue to be registered; Section 21(1)(a)(ii) any penalty imposed on the owner of a registered ship in respect of a contravention of this Act, or of any instrument in force under this Act, has remained unpaid for a period of more than three months and no appeal against the penalty is pending; or Section 21(1)(a)(iii) any summons for any such contravention has been duly served on the owner of a registered ship and the owner has failed to appear at the time and place appointed for the trial of the information or complaint in question and a period of not less than three months has elapsed since that time, Section 21(1)(b) the annual registration fee has not been paid; Section 21(1)(c) the tonnage fees of a registered ship has remained...

Section 22. Restriction on de-registration of ships Section Subject to section 95(6), the Registrar of Ships shall not permit the de-registration of a ship, except upon giving prior notice in writing to all registered holders of mortgages on such ship which are registered under this Act.

Section 23. Certificate of de-registration Section 23(1) Upon the de-registration of a ship the Registrar of Ships shall issue to the owner of such ship a certificate of de-registration in the prescribed form. Section 23(2) On receipt of the certificate of de-registration referred to in subsection (1), the owner shall immediately surrender the ship’s certificate of registry to the Registrar of Ships for cancellation. Section 23(3) A person who fails, without reasonable cause, to surrender a certificate of registry when required to do so under this Part, commits an offence and shall be liable, upon conviction, to a fine not exceeding five hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both such fine and imprisonment.

Section 24. Non-liability of the Registrar of Ships Section No action shall lie against the Registrar of Ships or any officer acting in that capacity or discharging any of his functions under this Act in respect of anything done or omitted to be done by him or her in good faith in the exercise or performance of any power, authority or duty conferred or imposed on him or her under the Act.

Section 25. Register of ships Section 25(1) There shall be a register of Kenyan ships for all ships registered in Kenya. Section 25(2) The register shall be maintained by the Registrar of Ships. Section 25(3) The Director-General may give directions of a general nature with regard to the discharge of any of the functions of the Registrar of Ships. Section 25(4) The register may consist of separate register books and shall be so constituted as to distinguish registrations of small ships, pleasure vessels and submersible craft and may otherwise distinguish between classes or descriptions of ships. Section 25(5) The register shall be maintained in accordance with the registration regulations and any directions given by the Director-General under subsection (3). Section 25(6) The register shall be available for public inspection upon payment of the prescribed fees. Section 25(7)(a) the property in a ship shall be divided into sixty-four shares; Section 25(7)(b) subject to the provisions of this Act with respect to joint owners or owners by transmission, not more than sixty-four individuals shall be entitled to be registered at the same time as owners of any one ship; but this rule shal...

Section 26. Surveying and tonnage of ships Section 26(1) Before registration every ship shall be surveyed by a surveyor of ships and her tonnage ascertained in accordance with the tonnage regulations made under this Act, and the surveyor shall grant a certificate specifying the ship’s tonnage and build, and such other particulars descriptive of the identity of the ship as may for the time being be required by the Director-General and such certificate shall be delivered to the Registrar of Ships before registration. Section 26(2) When the tonnage of any ship has been ascertained and registered in accordance with the tonnage regulations that tonnage shall be treated as the tonnage of the ship except so far as those regulations provide, in specified circumstances, for the ship to be re-measured and the register amended accordingly.

Section 27. Marking of ships Section 27(1)(a) her name shall be marked on each of her bows, and her name and the name of her port of registry shall be marked on her stern, in letters of a contrasting colour so as to be clearly visible, such letters to be of a length not less than one decimetre, and of proportionate breadth; Section 27(1)(b) her official number and net tonnage shall be permanently marked on a main part of the ship’s permanent structure that is readily visible and accessible in such manner as may be specified by a surveyor of ships; Section 27(1)(c) in the case of every such ship built after the date of metric conversion, a scale of decimetres, or of metres and decimetres, denoting a draught of water shall be marked on each side of her stem and her stern post in figures at two-decimetre intervals and at intervening two decimetre intervals, if the scale is in metres and decimetres, the capital letter “M” being placed after each metre figure; the top figure of the scale showing both the metre and (except where it marks a full metre interval) the decimetre figure; the lower line of the figures, or figures and letters (as the case may be), coinciding with the draught lin...

Section 28. Application for registration Section An application for registration of a ship shall be made, in the case of individuals, by the person requiring to be registered as owner, or by some one or more of the persons so requiring if more than one, or by his or their agent, and, in the case of bodies corporate, by their agent, and the authority of the agent shall be testified in writing, if appointed by individuals, under the hands of the appointers, and, if appointed by a body corporate, under the common seal of that body corporate or by deed or instrument under seal in accordance with the Companies Act (Cap. 486).

Section 29. Declaration of eligibility Section a statement of his qualifications to own a Kenyan ship, and in the case of a body corporate, of such circumstances of the constitution and business thereof as prove it to be qualified to own a Kenyan ship;

Section 30. Evidence of title on first registry Section On the first registration of a ship such evidence of title shall be produced as may be specified in the registration regulations.

Section 31. Entry of particulars in register Section When the requirements for registration have been complied with, the Registrar of Ships shall register a ship by entering in the register particulars respecting the ship.

Section 32. Documents to be retained by Registrar of Ships Section On the registration of a ship, the Registrar of Ships shall retain in his possession the survey certificate, the builders certificate, if any, and all declarations of ownership.

Section 33. Port of Registry Section 33(1) Subject to subsection (2), the port of Mombasa shall be the port of registry of a ship registered under this Act and the port to which the ship belongs. Section 33(2) The Cabinet Secretary may, by order, declare any other port of Kenya as a port of registry.

Section 34. Certificate of Registry Section 34(1) On completion of the registration of a ship, the Registrar of Ships shall issue a certificate of registry comprising such particulars respecting the ship as may be specified in the registration regulations. Section 34(2) A certificate of registry shall be valid for a period of twelve months from the date of issue, and shall be renewed annually on payment of the prescribed fee, and if the ship complies with all other conditions prescribed under this Act and is seaworthy and properly found and equipped and has not been altered in any significant manner since the certificate was issued.

Section 35. Custody of certificate Section 35(1) The certificate of registry shall be used only for the lawful navigation of the ship, and shall not be subject to detention by reason of any title, lien, charge, or interest whatever had or claimed by any owner, mortgagee, or other person to, on, or in the ship. Section 35(2) Where any person, whether interested in the ship or not, refuses on request to deliver up the certificate of registry when in his possession or under his control to the person entitled to the custody thereof for the purposes of the lawful navigation of the ship, or to the Registrar of Ships, any officer of customs, or other person entitled by law to require such delivery, any court capable of taking cognisance of the matter may summon the person so refusing to appear before such court, and to be examined touching such refusal, and unless it is proved to the satisfaction of such court that there was reasonable cause for such refusal, that person commits an offence and shall be liable, upon conviction, to a fine not exceeding seventy thousand shillings, or to imprisonment for a term not exceeding five months, or to both such fine and imprisonment. Section 35(3) Wh...

Section 36. Use of improper certificate Section Where a master or owner of a ship uses or attempts to use for her navigation a certificate of registry not legally granted in respect of the ship, he commits an offence, and in respect of each such offence, shall be liable, upon conviction, to a fine not exceeding two million shillings, or to imprisonment for a term not exceeding six years, or to both such fine and imprisonment, and the ship shall be liable to forfeiture under this Act.

Section 37. Grant of new certificate and endorsement of change Section 37(1) The Registrar of Ships may, with the approval of the Director-General, and upon the surrender to him of the certificate of registry of a ship, issue a new certificate in lieu thereof. Section 37(2) Whenever a change occurs in the registered ownership of a ship, the Registrar of Ships may endorse the change on the certificate of registry or issue a new certificate of registry. Section 37(3) The master shall, for purposes of endorsement by the Registrar of Ships referred to in subsection 2, deliver the certificate of registry to the Registrar of Ships forthwith after the change. Section 37(4) Where the master fails to deliver to the Registrar of Ships the certificate of registry as required by subsection (2), he commits an offence and shall be liable upon conviction to a fine not exceeding fifty thousand shillings, or to imprisonment to a term not exceeding four months, or to both such fine and imprisonment.

Section 38. Duplicate certificates Section 38(1) Where it is shown to the satisfaction of the Registrar of Ships that the certificate of registry has been lost, stolen or destroyed or has become defaced or illegible (“the event”), he may issue to the owner a duplicate of that certificate, which shall be marked as such, and shall be of the same effect as the original. Section 38(2) Where a duplicate certificate of registry is issued the original, if then available or if subsequently found or recovered, shall be forthwith surrendered to the Registrar. Section 38(3)(a) the port where the ship is at the time of the event or, as the case may be, where it first arrives after the event, is not in Kenya; and Section 38(3)(b) the master of the ship, or some other person having knowledge of the facts of the case, makes a declaration before the proper officer as to the event, Section 38(4)(a) send by facsimile or any other form of electronic transmission to the proper officer a copy of the duplicate certificate which the proper officer shall endorse with a statement of the circumstances under which it is granted; or Section 38(4)(b) where there are no facsimile or other electronic transmissio...

Section 39. Endorsement of change of master on certificate Section if the change is made in consequence of a ruling of a court or marine inquiry; by the presiding officer of that court; or

Section 40. Provisional certificate of registry Section 40(1)(a) the name of the ship; Section 40(1)(b) the time and place of its purchase and the names of its purchasers; Section 40(1)(c) the name of its master; Section 40(1)(d) the best particulars respecting its tonnage, the time and place of its construction and other particulars which he is able to obtain, Section 40(2)(a) a declaration as to ownership; and Section 40(2)(b) declaration that the foreign registry, if any, of the ship has been closed. Section 40(3) No provisional certificate shall be granted by any person under this section unless he is satisfied that an application under registration regulations for registry of the ship has been made or is intended. Section 40(4) A provisional certificate under this section shall have the effect of a certificate of registry until the expiration of three months after its date of issue or until the arrival of the ship at a port in Kenya, whichever happens earlier, and on either of those events happening shall cease to have effect. Section 40(5) The master of every ship in respect of which a provisional certificate is issued under this section shall, within ten days of the ship’s f...

Section 41. Temporary pass in lieu of Certificate of Registry

Section 42. Registration of transfer of ownership Section 42(1)(a) there is in existence a written contract for the transfer of a ship or a share in a ship; and Section 42(1)(b) to transfer the ship or any share in the ship to a person qualified to own Kenyan ships and who intends to register the ship in Kenya; and Section 42(1)(b)(i) to transfer the ship or any share in the ship to a person qualified to own Kenyan ships and who intends to register the ship in Kenya; and Section 42(1)(b)(ii) to provide the transferee with a bill of sale of the ship and a certificate stating that the ship is free from registered mortgages; and Section 42(1)(c) upon the execution of the bill of sale the ship will be entitled to be registered in Kenya. Section 42(2)(a) enter in the register the particulars as may be set out in registration regulations subject to the modifications set out in subsection (3); and Section 42(2)(b) grant to the transferee a certificate of registry which shall be valid for a period of twenty-one days from its date of issue. Section 42(3)(a) the name and description required to be entered shall be the name and description of the transferee of the ship or of the share therein...

Section 43. Consequences of registration Section 43(1) Where a ship is registered under section 42, it shall be deemed to be a Kenyan ship for the purposes of this Act. Section 43(2) Where a ship is registered under section 42 it shall not hoist any colours other than Kenyan national colours specified in section 91.

Section 44. Application of Part to registered ship Section the provisions of this Part shall apply to the ship and its registration; and

Section 45. Definition of transferee

Section 46. Name of ship Section 46(1) Every ship registered in the register shall have a name, and two or more ships shall not bear the same name. Section 46(2) A Kenyan ship shall not be described by any name other than that by which it is for the time being registered. Section 46(3) The Registrar of Ships may, in accordance with the provisions of any regulations made under this Act, refuse the registration of any ship by the name by which it is proposed to register that ship if it is already the name of a registered Kenyan ship or a name so similar as is calculated or likely to deceive or to offend the public interest. Section 46(4) If the Registrar refuses to register a ship by the name that is proposed or if the requirements of the regulations referred to in subsection (3) are not complied with, that ship shall not be registered under the name proposed, or until the regulations are complied with, as the case may be. Section 46(5) If any person acts or suffers any other person under his control to act in contravention of this section or omits to do or suffers any other person under his control to omit to do anything required by this section, he commits an offence and shall be l...

Section 47. Change of name of ship Section 47(1) A change shall not be made in the name of a ship without the prior written permission of the Registrar of Ships. Section 47(2) An application to effect a change of ship’s name shall be in writing and, if the Registrar of Ships is of the opinion that the application is reasonable, he may grant permission, and thereupon require notice thereof to be published in such form and manner as he thinks fit. Section 47(3) On being granted permission to change the name of the ship, the owner shall forthwith ensure that the change is in the register and in the ship’s certificate of registry, and on her bows and stern. Section 47(4) Where it is shown to the satisfaction of the Registrar of Ships that the name of any ship has been changed without his permission he shall direct that her name be altered to that which she bore before the change, and the name shall be altered on her bows and stern accordingly.

Section 48. Identity marks for fishing vessels Section 48(1) On the registration of a fishing vessel the registrar shall allocate to it a combination and sequence of letters and numerals (hereinafter called the “identity mark”) which he shall cause to be entered in the register book. Section 48(2) Same letters and identity mark of a registered fishing vessel shall not be allocated to any other fishing vessel. Section 48(3) Every registered fishing vessel shall display the identity mark allocated to it under this section on each side of its bow and shall show its Port of Registry on the stern.

Section 49. Offences Section Where any person acts, or suffers any person under his control to act, in contravention of section 48, or omits to do, or suffers any person under his control to omit to do, anything required by that section, commits an offence, and for each such offence shall be liable, upon conviction, to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding six months, or to both such fine and imprisonment and, except in the case of an application being made under that section with respect to a foreign ship which not having at any previous time been registered as a Kenyan ship has become a Kenyan ship, the ship may be detained until there is compliance with that section.

Section 50. Register books for ships under construction Section 50(1) The Registrar shall keep a register book for ships under construction which shall contain the names of the ships under construction. Section 50(2) A ship under construction may be entered in the register book for ships under construction from the date of the signing of the contract for construction until it is placed on another register after completion.