In the present case the court has to judge whether or not the Minister for Transport and Communication was entitled to issue a gazette notice and two letters from the National Environmental Management Authority (NEMA) and from the Kenyan Port Authority (KPA) allowing only two other companies to undertake sludge removal works at the port of Mombasa.

The applicants, who are in business of removing sludge from ship docking at the port of Mombasa, claim that the incriminated documents will ruin their business as it won’t allow them to work on the port. They also point it out that those documents did not have a legal bases because they were based on the the International Convention for Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978 relating thereto (MARPOL 73/78) which has not been integrated in Kenyan domestic law. They also claimed that NEMA did not have the competence to for issuing those documents.

The court answered that the ministries was allowed to take such a decision even if the MARPOL 73/78 is not already integrated within the Kenyan legislation. It also stated that both NEMA and the KPA were entitled to take such decisions, especially because the Environmental Management and Co-ordination Act allows NEMA to implement provision of regional or international conventions.

Therefore the court dismissed the appeal.