Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR
the scope of the judicial mandate in respect of Article 33 and 34; the appellate jurisdiction; the doctrine of
the separation of powers; and the concept of judicial restraint.
[33] In Communications Commission of Kenya & 3 others v. Royal Media Group & 7
Others, Sup Ct Petition No. 14 of 2014, the 1st Respondent contends that the composition of CCK at the
time the frequencies were allocated was not as envisaged under Article 34(3)(b) of the Constitution, and
that CCK, therefore, lacked the legal competence to regulate airwaves after the promulgation of the
Constitution. The 1st respondent also argues that the Broadcasting Signal Distribution (BSD) licences
procurement-process was conducted in an illegal manner. Similar issues have been raised by other
parties to the appeal, and will be addressed in the main appeal. While the nature of these questions will
avail the applicant the benefit of binding precedent, the same shall not accord it the intended remedies,
as these can only be sought from the High Court. In these circumstances, it is clear to us that no
prejudice will be occasioned to the applicant if not enjoined, since there are still open avenues for
pursuing its cause.
[34] Learned Senior Counsel, Mr. Ojiambo had expressed an apprehension that the intended crosspetition would raise new matters of law and fact, which had not previously been adjudicated upon at the
High Court or the Court of Appeal.
[35] We note from the application that the applicant, upon being enjoined, will be contending that it
has a legitimate expectation to join the broadcasting industry, by virtue of Article 34 of the Constitution. It
appears from the application that, the cross-petition will be urging this Court to find that media space
should not be monopolized by a few entities, as Parliament has already, by express legislation, opened it
up. These are new issues requiring adjudication by a Court of original jurisdiction.
[36] This Court will only exercise original jurisdiction pursuant to specific provisions of the
Constitution: Article 58(5) (in determining the validity of a state of emergency); Article 163(3)(a) (in
hearing disputes relating to the elections to the office of the President); and Article 163 (6) (relating to
Advisory Opinions). This Court, in Peter Oduor Ngoge v. Francis Ole Kaparo and 5 Others, Sup Ct.
Petition No. 2 of 2012; [2012] eKLR, (Ojwang & Njoki SCJJ) determined that:
“The Supreme Court, as the ultimate judicial agency, ought in our opinion, to exercise its powers
strictly within the jurisdictional limits prescribed; and it ought to safeguard the autonomous
exercise of the respective jurisdictions of the other Courts and tribunals…...”
[37] That same principle is stated in Shabbir Ali Jusab and 2 others v. Anaar Osman Gamrai
and Another, Sup Ct. Petition No. 1 of 2013, (at paragraphs 39 and 40):
“If this Court were to consider the matters raised, we would not be providing our further input,
but merely undermining the role of the other Courts, and encroaching on the unlimited original
jurisdiction of the High Court, which is provided for under Article 165 (3)(a) of the
Constitution………”
“Further, the substantive matters in the appellant’s petition remain unanswered, as they have
not yet been canvassed in the proper forum. As a Court not furnished with facts, we run the risk
of perpetuating an injustice, as both parties should first be heard in the appropriate Court, before
preferring an appeal either to the Court of Appeal or to this Court. It is such initial hearing on
fact that constitutes the centerpiece of the right to be heard, and to fair trial.”
[38] Recently, in the case of Zacharia Okoth Obado v. Edward Akong’o Oyugi & 2 Others, Sup
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