Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR

[1] This is an application dated 23rd May, 2014, filed pursuant to Rule 25 of the Supreme Court
Rules, 2011, seeking to have Nature Foundation Limited (the applicant herein) enjoined as an Interested
Party to the proceedings, and granted of leave to file and serve a cross-petition to the appeal.
The essence of the application was elaborated in the body of the application and in the
supporting affidavit of Alfrida Boinett. The deponent averred that the applicant had been a party in other
matters connected to the subject of the present appeal, and had demonstrated a keen interest in
liberalizing the broadcast-airwaves in Kenya. In addition, it was deponed that the applicant was the
beneficiary of a Court decision allowing it the privilege to be a player in the media industry, but which
finding had been compromised by the 1st, 2nd and 3rd respondents. As a result, the applicant, by the
application, gives realization to the said privilege. It was averred that the applicant was the only party in
a position to present certain pertinent information to the Court at the hearing of the appeal, and that in
the absence of such information, the Court would be incapable of reaching a considered and just
[3] The applicant stated that he would be seeking the dismissal of the petition of appeal, on the
grounds that the 1st, 2nd and 3rd respondents lacked the operating mandate, as their licences had expired
and had not been renewed, pursuant to Section 46 of the Kenya Information and Communications Act
(Cap 411A), Laws of Kenya) and that, therefore, they had been operating illegally.
The applicant had petitioned the High Court in Nakuru [Republic v. The Minister for
Information and Communications & Another ex-parte The Nature Foundation Limited, Misc. Civil
Application No. (JR) 51 of 2010 (Misc. Civil Application No. (JR) 51 of 2010)] for an Order of Certiorari to
quash Regulation 46(1), (2) and (3) of the Kenya Communications (Broadcasting) Regulations for the
reason that they were ultra vires Sections 46A (a) and (d), 46D (2)(b) and (d) and 46K (a) of the Act. The
High Court held that Regulation 46(3) had been made contrary to the intent and objects of the Act, and
therefore fell outside the mandate of the Communications Commission of Kenya (CCK). However, the
Court declined to grant Orders of certiorari, as the applicant failed to demonstrate sufficient interest or
standing in the matter before it.
[5] According to the applicant, this Regulation (46) having been declared ultra vires the parent Act,
by the High Court, was null and void, and anything done in pursuance thereof was illegal. To the
applicant, this decision meant that the 1st, 2nd & 3rd respondents were operating illegally, having failed to
apply for new broadcasting licences from the 1st appellant, pursuant to Section 46 of the Act.
[6] It was clear from the application that the applicant intended to join the broadcast industry, on the
basis of a legitimate expectation drawn from its own comprehension of the right enshrined under Article
34 of the Constitution. According to the applicant, this right was being hindered by the 1st, 2nd and
3rd respondents, who continued to monopolise the broadcasting frequencies. It was the applicant’s
intent, upon obtaining joinder in the appeal, to make out a case for an open and democratic media
space, in place of a unilateral domination by a few players.

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