Alcoholic Beverages Association of Kenya v Kenya Film Classification Board & 2 others

The court examined the preamble and definitions of 'film', 'cinematograph film' and 'audio visual' in their ordinary and contextual meaning. It found that a television advertisement has both audio and visual features and fits the definition of a cinematograph film. A restricted construction excluding advertisements would, in the court's view, mutilate the English language and lead to an absurdity, contrary to the presumption against absurdity in statutory interpretation.

The court acknowledged that the Communications Authority is the principal regulator under KICA, tasked with setting programming standards including the watershed period. However, it held that the Board published the Programming Code in furtherance of KICA, and that any overlap between the two statutory regimes does not displace the Board's power to regulate advertisement content during watershed hours.

The court read the two letters and found they did not single out alcoholic beverage advertisements, but flagged breaches during the watershed period and invited the members to explain. Since there was no evidence the meeting was held or sanctions imposed, no administrative determination had been made. The failure to be heard was attributable to the members' refusal to respond, and the petition was premature.

The court accepted that the learned Judge did not make specific reference to the Code in his judgment. However, it found that the Code's focus on ensuring family viewership is wholesome and unsuitable material is not broadcast when children are likely to be watching echoes the Judge's reasoning on protecting children, so the omission did not vitiate the decision.