Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR
i. The Applicant
[7] In addition to the averments made in the application and the supporting affidavit, counsel for the
applicant, Mr. Oriema argued that the applicant had been involved in similar litigation and had been a
party in Republic v. The Minister for Information and Communications & Another ex-parte The
Nature Foundation Limited, Misc. Civil Application No. (JR.) 51 of 2010, which sought orders of
certiorari to quash Regulations 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. Counsel submitted that the applicant had a legitimate cause to be enjoined in these
proceedings, because it was litigating in favour of liberalizing the broadcasting frequencies on its own
behalf, and on behalf of other interested and affected parties, and members of the general public. The
applicant intended to demonstrate that the frequencies were unobtainable because the 1st, 2nd and 3rd
respondents were holding the same illegally, under the sanction of the 1st appellant. The applicant would
thus be asking the Court to order a release of those frequencies, opening up opportunities to others.
ii. The 1st Appellant
[8] Learned senior counsel, Mr. Fred Ojiambo, appearing with learned counsel, Mr. Kilonzo, for the
1st appellant, submitted that the applicant had neither applied for nor obtained any broadcasting
frequencies and, therefore, had no right or interest in the appeal before the Court. Counsel submitted
that the Orders sought by the applicant would have the effect of disorganizing the time-frame allocated to
the hearing and determination of the appeal. He submitted that the present appeal arose from the
decision of the High Court in Royal Media Services Ltd & 2 Others v. Attorney General & 8 Others,
H.C. Constitutional Petition No 557 of 2013 (H.C Constitutional Petition No 557 of 2013) which was
subsequently the subject of first appeal in Royal Media Services Ltd & 2 Others v. Attorney General
& 8 Others, Civil Appeal No. 4 of 2014, and now the subject of second appeal before this Court; and that
this Court was sitting in exercise of its appellate jurisdiction, and not its original jurisdiction. Counsel
urged that the applicant was seeking a remedy in the reserve of the High Court, and not this Court sitting
on appeal. In addition, it was submitted that the public interest issues alluded to by the applicant were
live in other Courts, and this Court would have an opportunity to address them subsequently.
[9] Counsel submitted that the applicant had not sought joinder in the proceedings before the High
Court or the Court of Appeal, and had not offered any explanation as to why such joinder had not been
sought at those earlier stages.
[10] Learned counsel urged that the applicant was seeking to introduce a new cause of action, with
new sets of fact neither laid before the High Court nor the Court of Appeal. Counsel relied on the cases
of Kenya Section of the International Commission of Jurists v. The Attorney-General & 2 Others,
Sup. Ct. Criminal Appeal No. 1 of 2012; [2012] eKLR and Peter Oduor Ngoge v Francis Ole Kaparo &
5 Others, Sup. Ct Petition No. 2 of 2012; [2012] eKLR, for the proposition that the applicant could not
advance a cause of first instance at this appellate forum.
[11] It was submitted that the issues intended by the applicant were also directly and substantially in
issue before the High Court in the case of Media Owners Association v. The Attorney General &
Others, H.C Constitutional Petition No. 244 of 2011, in which a cross-petition raising similar issues as
those in the proposed cross-petition has been filed. It was urged that similar issues to those proposed by
the applicant, were also directly in issue in Republic v The Communications Commission of Kenya
ex parte Magic Radio Limited, Nairobi, Misc. Civil Application Number (JR) 284 of 2011; and thus,
allowing the admission of the applicant as an Interested Party to the proceedings, and the subsequent
filing of cross-petition, would prejudice the matters pending before the High Court.
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