Royal Media Services Limited & 2 others v Attorney General & 8 others
The bottom line
#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
#Executive summary
#Key legal issues
#Constitutionality of CCK as the media regulator under Article 34(3)(b)/(5)
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
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.
Intellectual property rights in broadcast content
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
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.
Legitimate expectation to a BSD licence
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
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.
Issue estoppel and access to constitutional remedies
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
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.
Status of international conventions in municipal law
RRC-06 ranks no higher than an ordinary Act of Parliament and cannot override the Constitution; the trial court did not elevate it
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.
Striking out scandalous pleadings
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
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.
Legal principles established
#- 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
#- 1.Grounds of appeal on striking out paragraphs of the petition and supporting affidavits dismissed
- 2.Appellants entitled to seek relief by way of constitutional petition in view of the violation of the Constitution in failing to reconstitute CCK
- 3.3rd respondent's direction to the 4th, 5th, 6th and 7th respondents to air the appellants' FTA programmes without consent declared null and void
- 4.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.An independent body or authority constituted strictly in accordance with Article 34(3)(b) to conduct the tendering process afresh
- 6.The independent regulator directed to issue a BSD licence to the appellants without tendering upon meeting the applicable terms and conditions
- 7.Issue of a BSD licence to the 6th respondent declared null and void; 3rd respondent to refund fees paid
- 8.2nd and 3rd respondents restrained from switching off the appellants' analogue frequencies, broadcast spectrums and broadcasting services pending compliance
- 9.New switch-off date not to be later than 30th September 2014
- 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
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kosen v Ole Kosen & another (Environment and Land Appeal 18 of 2019) [2026] KEELC 3486 (KLR)[2026] KEELC 3486 (KLR)4 Jun 2026
- Eldo Hawkers Savings and Credit Co-operative Society Limited v Uasin Gishu County Government (Petition 2 of 2018) [2024] KEELC 6272 (KLR)[2024] KEELC 6272 (KLR)30 Sept 2024followed
- Petitioners v Agricultural Finance Corporation & Another (loan waiver and access to information petition)[2020] KEHC 2638 (KLR)9 Oct 2020
Cite this brief
#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.