‘THAT a conservatory injunctive order be and is hereby issued restraining the 2 nd and 3rdRespondents or
any of them from cancelling, stopping, suspending, restricting or in any way howsoever interfering with
the Petitioner’s and its members’ licences, frequencies, broadcasting spectrums and Broadcasting
Services pending hearing inter partes on 16th November 2011.’
66. Of more interest in the Media Owners case with regard to this petition are the orders sought in the petition
dated 14th November 2011. The petitioner seeks the following orders at prayer 2 and 3 of their petition:
2. A declaration that Article 34(3) of the Constitution contemplates and envisages an Independent
Broadcasting Authority which is independent of government, political interests or commercial interests.
3. A declaration that the Public Notices issued on 5th August 2011 and 11th November 2011 are null and
void as the 3rd respondent has no constitutional mandate to licence broadcasters under Article 34 of the
Constitution.
67. It is clear from the orders set out above that the licensing process that the petitioner in this case is seeking
orders with regard to has been stopped by the court in the above orders, particularly the orders of stay issued in
the Magic Radio case. From the pleadings in the Media Owners case, it is clear that the position taken by the
petitioner in that matter, which pre-dates the current matter, is that there should be an independent Broadcasting
Authority and amendment of the Kenya Information and Communications Act to provide for the licensing and
allocation of Broadcasting Spectrum by such independent authority.
68. Should I issue the orders against CCK that the petitioner is urging me to issue in this case, it would lead to
the absurd situation where one court has already stopped the issuance of licences under the Kenya Information
and Communications Act, while the other issues orders compelling the respondent to issue licences under the
same Act, a situation calculated to bring the court to disrepute. I cannot therefore, given that the court orders in
the above cases are still in force, issue any orders directed at CCK with regard to the issuance of licences under
the provisions of the Kenya Information and Communications Act.
Claim Against the 2nd Respondent
69. With regard to the 2nd respondent, the petitioner is aggrieved that it is providing digital signal services to the
Interested Party and GoTV while denying the petitioner the same services. The response by KBC is that it has a
joint venture with the Interested Party, and if the petitioner wishes to broadcast on the same terms as GoTV, it
should enter into a joint venture with KBC. It appears from the averments by KBC that its entering into the joint
venture with the Interested Party to provide digital transmission services through GoTV was part of a pilot project,
and so it was entitled to enter into a joint venture and provide the services through GoTV. To the extent that this
is the correct factual position, there is no discrimination against the petitioner by KBC.
70. However, KBC is the national broadcaster and the only entity currently authorized to provide signal
distribution services. The question, then, is whether, in the provision of such signal distribution services, KBC and
indeed any other entity which will be licenced under Section 46N of the Kenya Information and Communication
Act, will provide such services only to those entities which enter into joint ventures with it. Put differently, on what
terms and conditions will signal distribution services be provided by signal distributors?.
71. I must express some limitation, on the material before me, to adequately deal with this issue. Indeed, in my
view, it is a question that can only properly be dealt with by the parties to this matter and other industry