62. However, my perusal of the Kenya Information and Communication Act does not indicate any limitation of the
right to broadcast on the digital platform to only those broadcasters who were already operating on the analogue
platform. It may require, as the terms used are ‘migration’ from analogue to digital, that priority is given to those
organizations which were already involved in the broadcast sector and who already held permits. It cannot,
however, mean that no new entrants and applicants will be considered for licensing.
63. To the extent, therefore, that CCK failed to address the petitioner’s application to broadcast on the digital
platform, I would have found that CCK has violated the petitioner’s right to impart ideas, and thus limited its
freedom of expression and of the media. This would have been the case had the circumstances pertaining to the
issue of licences been the same as they were at the time the petitioner had applied for a licence in February
2011.
64. CCK’s answer to the petitioner’s claim with regard to its application for a licence is that it has not yet started
issuing licences due to the injunctions issued by the court in two cases, Magic Radio Ltd -vs- The
Communications Commission of Kenya and Media Owners Association -vs- The Communications Commission of
Kenya and 2 Others (supra). I have perused the court files and read the pleadings and the orders issued by the
court in these two matters. In the Magic Radio case, Warsame J (as he then was) on 14 th November 2011
made, inter alia, the following orders:
1. THAT leave be and is hereby granted to the applicant to apply for Judicial Review and specifically for
orders that:
a) AN ORDER OF CERTIORARI do issue to remove into the High Court and quash the decision of the
Communications Commission of Kenya contained in the “Public Notice” appearing in the Daily Nation
Newspaper dated the 11th November, 2011 “Licensing of Existing Broadcastings Under the New
Regulatory Framework.”
b) AN ORDER OF PROHIBITION do issue prohibiting the Communications commission of Kenya from
inviting applications for licences for broadcasting services and/ or issuing licenses for broadcasting
services on the basis that such applicants must have permits issued by the Minister for Information and
Broadcasting either as it has purported to do by the said Public Notice appearing in the Daily Nation
Newspaper dated the 11th November, 2011 or at all.
c) AN ORDER OF MANDAMUS do issue directed at the Communication Commission of Kenya to issue
the broadcasting licences describes in Section 46B of the Kenya Information and Communications Act,
1998 as required by Section 46C of the said Act in strict adherence to the functions specified in Section
46A and the criteria set out in Section 46(D)(2),46(F) and 46(G) of the said Act.
2. THAT the said leave shall operate as a stay of the application process contained in the
Respondent’s “Public Notice” appearing in the Daily Nation Newspaper dated the 11th November, 2011
pending the hearing and determination of the substantive application and/ or further order. (Emphasis
added)
65. In the Media Owners’ case, Justice Lenaola, in a petition challenging the decision of the state to switch from
analogue to digital broadcasting by December, 2012, issued injunctive orders restraining the Commission from
interfering with the existing licenses, frequencies, spectrums and broadcasting services pending the hearing and
determination of the petition. Order 2 in the said order issued on 14 th November 2011 is in the following terms: