Royal Media Services Ltd v Attorney General & 2 others [2020] KECA 510 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that broadcast frequency licences are not owned property, and regulators like CCK could lawfully act under the 2010 Constitution's transition.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in finding that the 3rd respondent was properly constituted and empowered to carry out its statutory responsibilities including regulation contemplated under Article 34 of the Constitution until the entity contemplated under Article 34(5) is established
- 2.Whether the learned Judge erred in finding that the orders of the Media Owners' Case were limited to the four corners of that suit and did not afford the appellant a carte blanche to operate outside the ambit of the law
- 3.Whether the demands and orders issued by the 3rd respondent vide the letters dated 6th March 2012 and 3rd August 2012 and the Notice in the Daily Nation dated 17th May 2012 breached the appellant's constitutional rights
Key legal issues
#Whether the 3rd respondent could lawfully regulate broadcasting and the airwaves pending establishment of the Article 34(5) body
Yes. Guided by the Supreme Court's Digital Migration decision, the Court of Appeal held the CCK retained lawful regulatory authority under the Kenya Information and Communications Act during the transitional period.
The Court applied the Supreme Court's binding interpretation of Section 7(1) of the Sixth Schedule: existing legislation continues in force subject to necessary alterations to conform with the Constitution, and the three-year legislative timeframe shows the Constitution did not contemplate a regulatory vacuum in licensing of airwaves. Since it was not demonstrated that the legislation establishing CCK was incapable of conforming with the Constitution, it would be improper to declare CCK unconstitutional. The High Court therefore did not err.
Whether the appellant's frequency assignments and licence constituted property protected under Article 40
No. The appellant did not demonstrate property capable of protection under Article 40; a frequency spectrum licence confers no ownership rights.
The Court adopted the regulatory position that frequency spectrum is a scarce public resource whose use must be regulated in the general interest. Clause 5(2) of the Radio Communications and Frequency Spectrum Regulations, 2010 expressly provides that a radio communication licence does not confer ownership rights on the licensee. Persuasive foreign authority (Nextwave v FCC) confirms broadcast licences confer only a temporary privilege of use, not ownership.
Whether the impugned letters and Notice breached Article 47 (fair administrative action)
No. The 3rd respondent gave prior communication, reasons and an opportunity to respond and remedy breaches, satisfying Article 47.
The Court found sufficient evidence of prior communication from the 3rd respondent giving the appellant an opportunity to respond and remedy breaches, and held the letters and Notice were issued in accordance with Section 41 of the Kenya Information and Communications Act. The regulatory steps thus followed due process and were neither arbitrary nor in bad faith.
Whether the impugned letters and Notice were in contempt of the conservatory orders in the Media Owners' Case
No. The Notice impugned here was not the notice in issue in that case, no contempt proceedings were instituted, and the orders had since been lifted with that case dismissed.
The Court noted the Notice impugned was the Public Notice of 17th May 2012, which was not in issue in the Media Owners' Case; the conservatory orders had been lifted and the case dismissed on 22nd June 2015. No material showed the appellant instituted contempt proceedings in that suit, so the letters and Notice could not be held to be in contempt.
Whether the 3rd respondent discriminated against the appellant contrary to Article 27
No. There was insufficient evidence of discriminatory enforcement compared with other broadcasters.
The High Court found the discrimination claim was a new cause of action not covered by the leave to amend, and that there was insufficient evidence regarding alleged non-compliance by other broadcasters. The Court of Appeal, re-evaluating the record as a first appellate court, found the learned Judge did not err in this finding; no evidence supported differential treatment.
Legal principles established
#- A pre-existing regulator such as the CCK continued to be lawfully mandated to regulate airwaves and licensing after the promulgation of the 2010 Constitution until the body contemplated under Article 34(5) is established; its actions were not rendered immediately unconstitutional
- A broadcast frequency licence confers no ownership or proprietary interest capable of protection under Article 40 of the Constitution
- Conservatory orders in one suit do not operate as a blanket licence for a party to escape regulatory action outside the four corners of that suit, and contempt allegations must be pursued before the court that issued the orders
- Fair administrative action under Article 47 is satisfied where a regulator gives prior communication, written reasons and an opportunity to respond and remedy a breach
Court orders
#- 1.Appeal dismissed for lack of merit
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Petition No. 346 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court in a constitutional petition (Article 164 of the Constitution)
Relief refused
#Declarations that the 3rd respondent exceeded its mandate under Article 34 and violated Articles 27, 33, 34, 40, 47 and 48
The 3rd respondent was lawfully mandated to regulate airwaves pending establishment of the Article 34(5) body, and no violation of rights was proved
Permanent injunctions and quashing of the impugned letters and Notice
The letters and Notice were lawful regulatory steps taken in accordance with due process
General and exemplary damages
No constitutional infringement was established
Removal of the commissioners of the 3rd respondent from office
Not granted as the appeal failed
Costs
Each party shall bear their own costs, taking into account that the appeal relates to enforcement of fundamental rights and freedoms
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
CCK was not only legally mandated to regulate airwaves and licensing under the 1998 and 2009 Acts, but also, the promulgation of the Constitution of 2010 did not render its actions immediately unconstitutional.
The appellant has not demonstrated the existence of property it has acquired which are capable of protection under Article 40 of the Constitution.
“A radio communication licence shall not confer any ownership rights of the frequency on the licensee.”
the conservatory orders while subsisting were not a blanket cover for the appellant or any other licensee to escape regulatory action
The upshot is that this appeal lacks merit and is hereby dismissed. Taking into account that the appeal relates to the enforcement of fundamental rights and freedoms, the order that commends itself to us is that each party shall bear their own costs.
Issues in the judgment
#The High Court judgment is described as dismissed on 18th January 2013, but the excerpt quoted from the later Media Owners' Case references the Supreme Court in S.C Petition No. 14 of 2014 and a notice of 30th January 2015, dates that post-date the appeal judgment date in the header, suggesting the quoted passage derives from a later decision than the judgment under appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Royal Media Services Ltd v Attorney General & 2 others [2020] KECA 510 (KLR)", Case Analysis (2020). Civil Appeal No. 43 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/510/eng@2020-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.