Royal Media Services Ltd v Attorney General & 2 others
The bottom line
#Kenya's Court of Appeal refused to stop broadcast frequency enforcement against Royal Media Services, confirming that winning an injunction pending appeal requires proving both arguability and irreparable harm.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The appeal was arguable, principally because it required interpretation of Article 34 and determination whether natural justice was violated.
The court reiterated that an arguable appeal is not one that must succeed but one deserving of consideration. It found the appeal not frivolous because it raised the interpretation of Article 34 of the Constitution and the alleged breach of natural justice by the 3rd respondent, without going into merits.
Whether the appeal would be rendered nugatory if the injunction is not granted
No; the frequencies would be readily available upon determination of the appeal, so success would not be rendered nugatory.
The court balanced the competing claims and noted that if the applicant succeeded, it could resume transmissions on the frequencies after the appeal was determined. The business and investment would not be irretrievably lost, so the nugatory limb failed.
Whether the overriding objective could cure failure to satisfy the twin principles
No; the overriding objective does not displace the requirement to demonstrate both limbs of Rule 5(2)(b).
While sections 3A and 3B of the Appellate Jurisdiction Act require the court to facilitate just, expeditious, proportionate and affordable resolution of appeals, and confer latitude in interpretation and discretion, its application must be judicial and founded on proper factual basis; it cannot substitute for the twin principles.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs; satisfying only one limb does not avail the order sought.
- An arguable appeal need not necessarily succeed; it need only be deserving of the court's consideration.
- In assessing nugatory aspect, the court must weigh and balance the competing claims of both parties on the peculiar facts of each case.
Court orders
#- 1.Declined to grant an injunction pending the hearing and final determination of Civil Appeal No. 43 of 2013
- 2.Dismissed the application with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- HC Petition No. 346 of 2012
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 43 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Royal Media Services Ltd v Attorney General & 2 others", Case Analysis (2013). Civil Application 44 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/546/eng@2013-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.