Enhancing Kenya's Laws on Maritime Pollution Compensation

The Legal Committee of the International Maritime Organization (IMO) shall on its 113th Session (LEG 113), scheduled for the 13th to the 17th of April, 2026 discuss a paper submitted by the International Oil Pollution Compensation Fund (IOPC Fund) reporting on actions taken to support Member State compliance with the [Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971 (1992 Fund Protocol)]. The paper (LEG 113/5), highlights compliance challenges among States Parties to the 1992 Fund Protocol, which Kenya is a party to and the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (2003 Supplementary Fund Protocol), which Kenya is not a party to, especially regarding:-

• annual oil reporting (Article 15 of the 1992 Fund Protocol);

• ensuring contributors pay levies (Article 13 of the 1992 Fund Protocol); and

• consequences for non-compliance (Resolutions 12 and 13 of the 1992 International Oil Pollution Compensation Fund (IOPC Fund) governing bodies decisions during their April 2025 meetings)

Because Kenya is a Party to both the International Convention on Civil Liability for Oil Pollution Damage, 1969 (1992 CLC Protocol) and 1992 Fund Protocol, and because Article 2 (6) of the Constitution of Kenya domesticates these treaties, Kenya must ensure its national laws and institutions fully operationalize these obligations.

LEG 113 exposes gaps that many States face, and these gaps may, in fact, mirror Kenya’s own structural challenges because of the dearth of legislation existing in Kenya. This, in our view, creates a perfect moment for legislative and regulatory strengthening.

The key areas where Kenya can enhance her laws are the following:-

1. Merchant Shipping Act, 2009 (MSA)

The MSA is Kenya’s primary maritime statute, but its provisions on oil pollution liability and compensation are fragmented and not fully aligned with the 1992 CLC Protocol/1992 Fund Protocol regime.

Opportunities for enhancement

Subject to our recommendation in bullet 4 of this letter, we, respectfully, see the following opportunities for enhancement:-

• Insert explicit provisions requiring annual reporting of contributing oil by receivers (to comply with article 15 of the 1992 Fund Protocol).

• Create statutory penalties for failure to report or late reporting.

• Provide a clear legal mandate for the Kenya Maritime Authority (KMA) to collect, verify, and transmit oil receipt data to the IOPC Funds.

• Establish a statutory obligation for contributors to pay levies imposed under article 13 of the 1992 Fund Protocol.

2. Kenya Maritime Authority Act, 2006 (KMA Act)

KMA is the competent authority for maritime regulation, but its mandate on oil pollution compensation is not explicit.

Opportunities for enhancement

We, respectfully, see the following opportunities for enhancement:-

• Amend the Act to designate KMA as the National Competent Authority for the 1992 Fund Convention.

• Provide KMA with powers to:

o audit oil receiving facilities;

o enforce reporting obligations;

o impose administrative sanctions; and

o coordinate with the National Treasury on levy collection

• Require KMA to maintain a national register of oil receivers.

3. Environmental Management and Coordination Act (EMCA)

EMCA governs pollution control but does not integrate the 1992 CLC Protocol/1992 Fund Protocol compensation architecture.

Opportunities for enhancement

We, respectfully, see the following opportunities for enhancement:-

• Align EMCA’s marine pollution provisions with the strict liability and compulsory insurance regime under the 1992 CLC Protocol.

• Provide for cooperation between National Environment Management Authority (NEMA) and KMA in oil pollution incidents and compensation claims.

4. Prevention and Control of Marine Pollution Bill, 2014

The Prevention and Control of Marine Pollution Bill, 2014 (the Bill) has never been enacted, yet it contains the most coherent attempt to domesticate IMO pollution instruments.

Opportunities for enhancement

We, respectfully, see the following opportunities for enhancement:-

• Update the Bill to incorporate:-

o The 1992 CLC Protocol;

o The 1992 Fund Protocol;

o The 2003 Supplementary Fund Protocol (when we do get round to ratifying the 2003 Supplementary Fund Protocol); and

o Resolutions 12 and 13 compliance mechanisms

• Enact the Bill as Kenya’s comprehensive marine pollution statute.

5. Regulations under the Merchant Shipping Act

In the event that enacting the Bill is not feasible, Kenya can adopt targeted subsidiary legislation under the MSA, such as:-

(a) Oil Reporting Regulations

• Define “contributing oil”;

• Set reporting timelines;

• Establish penalties for non compliance;

• Provide templates aligned with IOPC reporting formats;

(b) Compensation and Liability Regulations

• Procedures for submitting claims;

• Coordination with IOPC Funds;

• Rules for shipowner insurance verification

6. Why This Moment Is Strategic for Kenya

LEG 113/5 shows the following, i.e.,:-

• States with poor reporting face deferred compensation;

• States with poor reporting lose eligibility for Audit Body and Executive Committee positions;

• The IOPC Funds are now empowered to estimate oil receipts and invoice States;

Kenya should avoid falling into the category of States with compliance deficiencies and we believe strengthening domestic law now would:-

• protect Kenya’s right to compensation in case of a spill;

• enhance Kenya’s credibility in IMO and IOPC governance;

• support Kenya’s ambition to be a regional maritime hub;

• reduce legal uncertainty for oil importers and terminal operators;

• align with the constitutional obligation under article 2 (6) of the Constitution of Kenya.