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Court of AppealDismissedCivil Appeal No 214 of 2011· [2015] KECA 976 (KLR)

Nature Foundation Limited v The Minister for Information and Communication & Another

Court of Appeal
30 January 2015
Mohamed Abdulahi WarsameM. WarsameKMK. M'inotiAMA.K. Murgor
4,107 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed a challenge to broadcasting regulations, confirming anyone can sue on public rights but courts won't strike regulations merely for being unwise.

What this practically means

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Executive summary

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Nature Foundation Limited sought certiorari to quash regulations 46(1), (2) and (3) of the Kenya Communications (Broadcasting) Regulations, 2009, which provided for the transition of broadcast permits to licences, alleging they were ultra vires the Kenya Information and Communications Act, 1998 and violated constitutional media freedoms. The High Court at Nakuru (Wendoh, J) found regulations 46(1) and 46(2) intra vires, found regulation 46(1)(c) ultra vires but declined to strike it down for want of locus standi, and dismissed the application with costs. On appeal, the Court of Appeal (Warsame, M'inoti & Murgor, JJ.A) held in a single judgment that the trial judge erred on locus standi: the Constitution of Kenya, 2010, through Articles 22 and 258, had fundamentally transformed standing, burying the stringent 'sufficient interest' requirements, so any person may sue to enforce public rights. The court nevertheless affirmed the dismissal. Applying the Supreme Court of India's test in Maharashtra State Board v Kurmarsheth, it held that delegated legislation is valid if it has a rational nexus with the objects of the parent statute, irrespective of the wisdom of the policy. Regulations 46(1) and (2) merely gave effect to section 2(b) of the Fifth Schedule by requiring broadcasters to apply afresh for licences. Regulation 46(3), requiring surrender of additional frequencies, was held properly grounded in sections 16, 17 and 18 of the Act, and the trial court erred in finding it ultra vires. No derogation from Articles 33 and 34 of the Constitution was found. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Locus standi of the appellant

Holding

The trial judge erred in finding the appellant had no locus standi; the Constitution of Kenya, 2010 transformed the landscape of standing, burying the stringent requirements of demonstrating special interest

Reasoning

The court held that the Constitution of Kenya, 2010, through Articles 22 and 258, fundamentally transformed locus standi, allowing any person to institute proceedings to enforce the Bill of Rights or in the public interest. The old 'sufficient interest' test from R v Inland Revenue Commissioners and the pre-2010 strictures no longer applied. The trial judge, delivering judgment almost a year after promulgation of the Constitution, erred in pegging standing on the failure to exhibit a complete memorandum of association. However, this error did not change the outcome because the appeal itself lacked merit.

p. 4
02

Ultra vires challenge to regulations 46(1) and (2)

Holding

Regulations 46(1) and (2) were made within the scope of the Act and give effect to section 2(b) of the Fifth Schedule

Reasoning

Applying the test from Maharashtra State Board of Secondary & Higher Secondary Education v Kurmarsheth, the court held that the validity of a regulation is determined by its rational nexus with the object and purpose of the statute, not its wisdom or effectiveness. Regulation 46(1) and (2) merely provided transitional provisions requiring broadcasters to apply for licences in the manner the Commission may require, consistent with the Fifth Schedule. Requiring an application was not an infringement of the statute or the Constitution, and no derogation from Articles 33 and 34 was found.

p. 6
03

Ultra vires challenge to regulation 46(3)

Holding

Regulation 46(3), requiring surrender of additional frequencies, is properly grounded and has nexus with the objects of the Act; the trial court erred in finding it ultra vires

Reasoning

The trial court had found regulation 46(3) ultra vires because it extended the validity of old permits and maintained the status quo. The Court of Appeal disagreed, holding that the Fifth Schedule only stipulates the procedure for acquiring licences, whereas regulation 46(3) deals with frequencies already assigned. The regulation gives effect to sections 16, 17 and 18 of the Act, which provide extensively for assignment of frequency spectrums, and has nexus with the objects of the Act and the plurality and diversity considerations in section 46D.

p. 7

Legal principles established

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  • Under the Constitution of Kenya, 2010, strictures on locus standi are done away with; any person may approach the court to determine whether a fundamental right has been breached or is likely to be infringed
  • The validity of delegated legislation is determined by reference to the specific provisions of the statute conferring the power and its objects and purposes, not the merits or demerits of the policy
  • Judicial review remedies are discretionary and the court must consider whether they are the most efficacious in the circumstances

Court orders

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  1. 1.Appeal dismissed
  2. 2.Appellant to bear the costs of the respondents

Authorities

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Legislation

  • Kenya Information and Communications Actsections 46A(a) and (d), 46D(2)(b) and (d), 46K(a), 46(R), 16, 17, 18
  • Kenya Communications (Amendment) Act, 2009paragraphs 2(a) and (b) of the Fifth Schedule
  • Kenya Communications (Broadcasting) Regulations, 2009regulations 10, 13, 35, 46(1), (2), (3)
  • Constitution of Kenya, 2010Articles 22, 258, 33, 34(3)

Cases cited (9)

  • Ahmed Rashid Jibril v East African Television Network Limited & 6 Others
    Milimani HCCC No 651 of 1998

    Illustrating the pre-2009 absence of a broadcasting regulatory framework and the muffling of media by denial of airways

  • Lucy Mirigo & 550 others v Minister for Lands & 4 others
    [2014] eKLR (Civil Appeal 277 of 2011)

    First appeal duty to consider all evidence and draw independent conclusions

  • Selle v Associated Motor Boat Company
    [1968] EA 123

    First appeal court's duty to re-evaluate evidence

  • Republic v Mwangi S. Kimenyi Ex-Parte Kenya Institute for Public Policy and Research Analysis (KIPPRA)
    [2013] eKLR (Civil Appeal 160 of 2008)

    Judicial review remedies are discretionary and must be the most efficacious in the circumstances

  • R v Inland Revenue Commissioners Ex Parte National Federation of Self Employed and Small Businesses Ltd
    (1982) AC 617

    The 'sufficient interest' test for locus standi described by Lord Diplock

  • Ruturi and Kenya Bankers Association v Minister for Finance
    [2001] 1 EA 253

    Relaxation of the stringent rule on locus standi; minimal personal interest suffices in public interest litigation

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR (Civil Appeal 290 of 2012)

    Fundamental transformation of locus standi by the Constitution of 2010 under Articles 22 and 258

  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR (Petitions Nos 14A, 14B & 14C of 2014)

    Article 34(3)(a) contemplates a procedure founded in law to govern issuance of licences so as to advance media freedoms

  • Maharashtra State Board of Secondary & Higher Secondary Education v Kurmarsheth & Others
    [1985] LRC (Const)

    Test for validity of delegated legislation: rational nexus with the statute's objects, not merits of the policy

On appeal from
High Court of Kenya at Nakuru
Nakuru Misc Civil Application No 51 of 2010 (JR)
Jurisdiction invoked
First appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, 2010); judicial review application under Order 53 Civil Procedure Rules challenging delegated legislation

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Nature Foundation Limited v The Minister for Information and Communication & Another", Case Analysis (2015). Civil Appeal No 214 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/976/eng@2015-01-30

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