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Court of AppealPartially AllowedCivil Appeal 4 of 2014· [2014] KECA 877 (KLR)

Royal Media Services Limited & 2 others v Attorney General & 8 others

Court of Appeal
28 March 2014
65,654 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~263 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled the broadcast regulator was not independent as the Constitution requires, voided its digital TV licences, and ordered fresh licensing.

What this practically means

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Executive summary

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The three leading media houses appealed the High Court's dismissal of their constitutional petition challenging the digital television migration process and the denial of Broadcasting Signal Distribution (BSD) licences. The Court of Appeal, by a 2-1 majority (Nambuye and Maraga JJA; Musinga JA dissenting), allowed the appeal in part. The majority held that the Communications Commission of Kenya (CCK), whose board was composed of Executive appointees under section 6 of the Kenya Information and Communication Act, was not the independent regulator envisaged by Article 34(3)(b) of the Constitution; its procurement of BSD licences was therefore null and void, and a properly constituted regulator had to conduct the tender afresh. The majority also held that CCK's direction to the 4th-7th respondents to air the appellants' Free-to-Air programmes without consent infringed their Article 40 intellectual property rights, and that the appellants' substantial investments and the government's promises gave rise to a legitimate expectation to be licensed without tendering. Issue estoppel did not bar the petition because constitutional questions were raised. The court set aside the High Court judgment with costs, directed issuance of a BSD licence to the appellants, nullified the 6th respondent's licence, restrained the analogue switch-off, and set a new switch-off deadline of 30th September 2014. Musinga JA dissented on the entitlement to a licence and the IPR finding, holding that legitimate expectation cannot prevail against the Constitution. The grounds on striking out pleadings and on the RRC-06 Agreement failed.

Key legal issues

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01

Constitutionality of CCK as the media regulator under Article 34(3)(b)/(5)

Holding

CCK, composed of Executive appointees under section 6 of the Kenya Information and Communication Act, was not the independent body envisaged by Article 34(3)(b); its BSD licensing process was null and void and a properly constituted regulator had to conduct the tender afresh

Reasoning

The court examined section 6 of the 1998 Act and the 2009 amendment, finding the Chairman, Director-General and members appointed by the President or Minister, giving government complete control. Section 7(1) of the Sixth Schedule required existing law to be construed to conform with the Constitution from the effective date; the government was obliged to alter CCK's composition before major decisions like implementing RRC-06, even before new legislation.

p. 4
02

Intellectual property rights in broadcast content

Holding

The CCK direction to the 4th-7th respondents to air the appellants' FTA programmes without consent infringed the appellants' Article 40 intellectual property rights and was null and void

Reasoning

Content developed or acquired from third parties becomes personal property protected by Article 40(1). Regulations 14(2)(b) and 29 of LN 187/2009 require the owner's consent before airing; the CCK letter of 19th August 2013 compelling carriage without consent was trespass on that property and a real threat of continued violation warranting restraint.

p. 3
03

Legitimate expectation to a BSD licence

Holding

The appellants had a legitimate expectation, from the tender notice framing and government promises given their investments, that they would be granted a BSD licence without tendering

Reasoning

The regulator held out that the tender notice conditions were the only disqualifying conditions, then disqualified the appellants on undisclosed tender-document clauses. The Permanent Secretary's promise, coupled with the appellants' massive infrastructure investment, gave rise to a legitimate expectation which the respondents failed to meet; the PS's pre-conditions were also without jurisdiction.

p. 3
04

Issue estoppel and access to constitutional remedies

Holding

Issue estoppel did not bar the petition because the appellants raised the constitutionality of the licensing process, not merely the merits of the tender decision; even one constitutional issue suffices for access to the High Court

Reasoning

Estoppel arises where an issue forming a necessary ingredient of a cause of action was decided and is re-raised in a different cause of action. Had the appellants questioned only the tender committee's merits they would be estopped, but constitutional questions of CCK's composition and Article 34(3) infringement were open, and the proper forum for Bill of Rights issues is the High Court.

p. 4
05

Status of international conventions in municipal law

Holding

RRC-06 ranks no higher than an ordinary Act of Parliament and cannot override the Constitution; the trial court did not elevate it

Reasoning

The court held that although Kenya is bound by ITU obligations under Article 2(6), the Constitution has primacy over international law, and the implementers were obliged to align executive action and policies with constitutional prescriptions before implementing RRC-06.

p. 4
06

Striking out scandalous pleadings

Holding

The trial judge rightly struck out unsubstantiated allegations of bribery and insolvency under Order 19 rules 6 and 7 and section 3A of the Civil Procedure Act

Reasoning

The affidavits failed the test in Order 19 rule 3(1) because the deponents did not disclose sources of information; rule 6 is permissive and the judge could act suo moto. Allegations of corruption without particulars were scandalous and properly struck out.

p. 5

Legal principles established

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  • A media regulator must be independent of government control as required by Article 34(3)(b); a body composed of Executive appointees is not such a regulator and its licensing acts are null and void
  • Saved legislation must be construed with alterations necessary to bring it into conformity with the Constitution from the effective date; courts cannot suspend constitutional conformity pending new legislation
  • Directing third parties to air a broadcaster's Free-to-Air programmes without consent infringes the broadcaster's intellectual property rights protected under Article 40
  • Issue estoppel does not bar a constitutional petition raising the constitutionality of a licensing process, as distinct from the merits of a tender committee decision
  • The highest level an international convention can reach in municipal law is that of an ordinary Act of Parliament, below the Constitution

Court orders

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  1. 1.Grounds of appeal on striking out paragraphs of the petition and supporting affidavits dismissed
  2. 2.Appellants entitled to seek relief by way of constitutional petition in view of the violation of the Constitution in failing to reconstitute CCK
  3. 3.3rd respondent's direction to the 4th, 5th, 6th and 7th respondents to air the appellants' FTA programmes without consent declared null and void
  4. 4.CCK declared not to be the independent body envisaged by Article 34(3)(b); the public procurement process for BSD licences conducted by it declared null and void
  5. 5.An independent body or authority constituted strictly in accordance with Article 34(3)(b) to conduct the tendering process afresh
  6. 6.The independent regulator directed to issue a BSD licence to the appellants without tendering upon meeting the applicable terms and conditions
  7. 7.Issue of a BSD licence to the 6th respondent declared null and void; 3rd respondent to refund fees paid
  8. 8.2nd and 3rd respondents restrained from switching off the appellants' analogue frequencies, broadcast spectrums and broadcasting services pending compliance
  9. 9.New switch-off date not to be later than 30th September 2014
  10. 10.1st, 2nd and 3rd respondents to pay the appellants' and 8th respondents' costs of the appeal and of the High Court; other respondents to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010articles 1(1)(a)(3); 2(4)(5)(6); 3; 10(1); 11; 19(1); 20(1)(3)(b)(4)(a)(b); 21(1); 22; 23(1); 24(1)(2)(3)(5); 27(4); 33; 34(2)(a)(3)(b)(4)(5); 37; 40(1)(5); 46; 47; 50(1); 159; 164(3); 165(3)(d); 232(1); 258(1); 259(1)(2); 260; 261(1); 262; Sixth Schedule section 7(1)
  • Court of Appeal Rules, 2010 (Cap 9 Sub Leg)rule 29(1)
  • Civil Procedure Act (Cap 21)section 3A
  • Civil Procedure Rules, 2010 (Cap 21 Sub Leg)Order 19 rules 3(1), 6, 7
  • Evidence Act (Cap 80)section 120
  • Kenya Information and Communication Act 1998 (Act No 2 of 1998)sections 5A, 5B, 6(1)(a)-(e), 25, 46, 46D, 46J, 46K, 46N(1), 46O(1)
  • Kenya Information and Communication (Amendment) Act, 2013 (Act No 41A of 2013)Part VII; section 5A(2)
  • Kenya Information and Communication (Broadcasting) Regulations 2009 (LN 187/2009)regulations 3(1), 4, 5, 14(2)(b), 15, 16(1)(2)(a), 17, 29
  • Public Procurement and Disposal Act 2005 (Act No 3 of 2005)sections 93(1), 100
  • Copyright Act, 2001 (Act No 12 of 2001)sections 26, 29, 30
  • Interpretation and General Provisions Act (Cap 2)definition of property
  • Societies Act (Cap 108)in general
  • Jamaican Juveniles Act, 1951section 29
  • Constitution of Belize, 1981section 21
  • Constitution of Trinidad and Tobagosections 4b and d
  • African Charter on Broadcasting, 2001article 1
  • Berne Convention for the Protection of Literary and Artistic Works, 1886in general
  • Regional Radio Telecommunications Conference 2006 (RRC-06 Final Acts)in general; article 11
  • Telecommunications Union Convention (ITU Convention), 1992in general
  • Vienna Convention on the Law of Treaties, 1969articles 26, 27, 46
  • Windhoek Declaration, 1991in general

Cases cited (44)

  • Anarita Karimi Njeru v Republic (No 2)
    [1979] KLR 162

    Precision in pleading constitutional violations

  • Board of Governors Moi High School Kabarak & another v Malcolm Bell
    Petition Nos 6 & 7 of 2013

    Limits of inherent powers of the court

  • Communication Commission of Kenya v Tetra Radio Limited
    Civil Appeal (Application) No 121 of 2012 (UR)

    Courts' inherent power to ensure compliance with their orders

  • Equity Bank Limited v West Link MBO Limited
    Civil Application No 78 of 2011 (UR)

    Nature of inherent power of courts

  • Jasbir Singh Rai & 3 others v Tarcochan Sing Rai & 4 others
    Petition No 4 of 2012 [2013] eKLR

    Supremacy and radical nature of the 2010 Constitution; interpretation of the Bill of Rights

  • Kamlesh M Pattni v Nasir Ibrahim Ali & 2 others
    Civil Application No NAI 354 of 2004

    Striking out scandalous or vague depositions

  • Kwacha Group of Companies and another v Tom Mushindi & 2 others
    Civil Suit No 319 of 2005 [2011] eKLR

    Equal enjoyment and governance of constitutional rights

  • Munga, Alphonse Mwangemi & 10 others v African Safari Club Ltd
    Cause No 133(N) of 2008 [2008] eKLR

    Ordinary civil complaints should not be redressed through constitutional references

  • Mumo Matemo v Trusted Society of Human Rights Alliance & 5 others
    Civil Appeal No 290 of 2012 [2013] eKLR

    Doctrine of separation of powers and countervailing checks and balances

  • Mwau, John Harum & 3 others v Attorney General & 2 others
    Petition No 65 of 2011 (unreported)

    Reluctance to award costs in enforcement of fundamental rights

  • Nderitu Gachegua v Thuo Mathenge & 2 others
    Election Petition No 1 of 2013 [2013] eKLR

    Principles of constitutional and statutory interpretation

  • Olum & another v Attorney General of Uganda
    [2002] 2 EA 508

    Constitution must be read as a whole; avoiding legislating a vacuum

  • Omwenga, Joel Nyabuto & 2 others v Independent Electoral & Boundaries Commission & another
    Election Petition No 2 & 6 of 2013 (Consolidated) [2013] eKLR

    Circumstances in which legitimate expectation arises

  • Owners of the Motor Vessel “Lilian” v Caltex Oil (Kenya) Ltd
    [1989] KLR

    Jurisdiction may be raised by party or court and must be decided forthwith

  • Peters v Sunday Post
    [1958] EA 424

    Appellate court's cautious jurisdiction to review evidence of trial judge

  • Republic v National Environment Management Authority
    Civil Appeal No 84 of 2010 [2011] eKLR

    Alternative statutory remedies and exceptional circumstances for judicial review

  • Royal Media Services Limited v Attorney General
    Petition No 346 of 2012

    Prior ruling that CCK remained the regulator pending new legislation

  • Selle & another v Associated Motor Boat Company Limited & others
    [1968] EA 123

    Duty of first appellate court to re-evaluate evidence

  • Speaker of the National Assembly v Karume
    [2008] 1 KLR (EP) 425; Civil Application No Nai 92 of 1992

    Where a clear procedure for redress is prescribed, it must be strictly followed

  • Tiwi Beach Hotels Limited v Stamin
    [1991] KLR 658

    Material non-disclosure is an affront to the dignity and credibility of the court

  • Trade Bank Limited v L Z Engineering Construction Limited
    [2000] 1 EA 266

    Definition and scope of issue estoppel

  • Wanjiku Beatrice & another v Attorney General & another
    Petition No 190 of 2011 [2012] eKLR

    Construction of Article 34 that most favours the rights-holder

  • Zola & another v Ralli Brothers Limited & another
    [1969] EA 691

    Discretion to excuse defects in affidavits

  • Bafokeng Tribe v Impala Platinum Limited & others
    [1998] (11) BCLR 1373

    Refusal to apply res judicata and issue estoppel where it would lead to injustice

  • Petronella NN Chirwa v Transnet & 2 others
    [2007] ZACC 23; 2008 (4) SA 367 (CC)

    Need to direct complaints for redress to the right forum

  • Transnet Limited v Goodman Brothers (Pty) Limited
    [2001] (2) BCLR 176 (SCA); (373/98) [2000] ZASCA 62

    Caution against reliance on waiver, estoppel and acquiescence to undermine fundamental rights

  • Tellis & others v Bombay Municipal Corporation & others
    [1897] LRC 351; 1986 AIR 180

    Estoppel principles relied on by appellants against issue estoppel

  • JP Bansal v State of Rajasthan & another
    Appeal (Civil) 5982 of 2001

    Principles of legitimate expectation from Council of Civil Service Unions

  • Central Broadcasting Services Ltd & Another v Attorney General
    [2007] 2 LRC 19

    Mandatory order compelling issuance of a broadcast licence where unfairly denied - distinguished on facts

  • Director of Public Prosecutions v Mollison
    [2003] UKPC 6; [2003] LRC 756

    Conformity provisions of transitional constitutions commence on the effective date; limits of modification by construction

  • San Jose Farmers Co-operative Society Ltd v Attorney General
    (1991) 43 WIR 63

    Section 21 of Belize Constitution does not detract from courts' power to construe existing law into conformity

  • Kemraj H Harrikissoon v Attorney General of Trinidad and Tobago
    [1980] AC 265

    Abuse of process to seek judicial remedy without proven breach of a fundamental right

  • Ashcroft, Former Attorney General, Et-Al v Iqbal Et-Al
    556 US (2009)

    Need to plead sufficient factual matter to state a claim

  • Red Lion Broadcasting Co Inc v FCC
    395 US 367

    Frequencies are a scarce natural resource requiring government regulation

  • Council of Civil Service Unions & others v Minister For The Civil Service
    [1985] AC 374; [1983] UKHL 6

    Principles of legitimate expectation

  • Gun & others v Sharpe and others
    [1974] 2 All ER 1058

    Only trivial errors not affecting integrity of process are excusable - distinguished

  • Hunter v Chief Constable of the West Mid Land Police and others
    [1981] 3 WLR 900; [1981] 3 WLR 906; [1981] UKHL 13

    Scandal to permit re-litigation of a decided question by changing the form of proceedings

  • Liyanage v The Queen
    [1967] 1 AC 259

    Breach of constitutional restriction not excused by good intentions

  • Marbury v Madison
    5 US (1 Cranch) 137 (1803)

    No clause of the Constitution is intended to be without effect

  • Morgan v Simpson & another
    [1974] 3 All ER 722

    Trivial errors excusable; those discrediting the process cannot stand - distinguished

  • Reyes v the Queen
    [2002] 2 AC 235

    Interpretation of constitutions and incompatible enacted law

  • Riffle v Rogers & others
    [1982] 3 All ER 157

    Election irregularities principle - distinguished

  • Sanitam Services (EA) Limited v Tamia Limited and others
    Nairobi Petition No 305 of 2012 [2012] eKLR

    IPR breaches enforceable through statutory mechanisms; unnecessary to invoke Article 22

  • Centre for Rights Education and Awareness v John Harun Mwau & 6 Others
    [2012] eKLR

    New issues cannot be raised for the first time on appeal

On appeal from
High Court of Kenya at Nairobi
Petition No 557 of 2013 (referred to in the judgment; coram cites H.C judgment of 23rd December 2013)
Jurisdiction invoked
Article 164(3) of the Constitution of Kenya, 2010 - first appellate jurisdiction over the High Court; Rule 29(1) of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Royal Media Services Limited & 2 others v Attorney General & 8 others", Case Analysis (2014). Civil Appeal 4 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/877/eng@2014-03-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.