Act, 1998 which license should contain a condition that it has to provide the said broadcasting signal distribution
services should (sic);
(a)
Be a common carrier to all broadcasting licensees and only broadcasting licensees.
(b)
Provide services promptly upon request, in an equitable, reasonable, non-preferential and non-discriminatory
manner
(c)
Provide capability for diversity of broadcast services and content.
(d)
Provide an open network that is inter-operable with other signal distribution network.
(v)
Such other and/or further relief as this Honourable Court may deem fit to grant.
(vi) An order that the costs of and occasioned by this Petition be borne by the 1 st and 2ndRespondents.
The Petitioner's Case
11. The petitioner’s case as presented by its Learned Counsel, Mr. Amoko, is that the respondents have treated
some players more favourably in respect to access to digital broadcasting on the broadcasting signal distribution
system provided by the 2nd respondent.
12. The petitioner alleges that CCK and KBC are in breach of their statutory duty because they are offering a
commercial advantage to the Interested Party by allowing it to broadcast on the digital platform while denying the
petitioner the opportunity to broadcast on the same platform. It alleges that by affording Multi Choice preferential
treatment, the respondents are not only in breach of statutory provisions contained in the Kenya Information and
Communication Act, but are also in violation of Articles 27 of the Constitution on the right of the petitioner to equal
treatment before the law, Article 33 on the right to freedom of expression, Article 34(1) on freedom of the media
and Article 47 on the right to fair administrative action.
13. The petitioner states that sometime in 2011, it noted that there were unfair trade practices in the Digital
Terrestrial Platform (DTT) which was under the control of SIGNET, a subsidiary of KBC. In February 2011, it
applied for licences to provide its services on the digital platform by letter dated 8 thFebruary 2011, but the
1st respondent, by letter dated 15th February 2011, indicated that it could not act on the petitioner’s application as
the issue was still the subject of discussion by the Digital Transmission Committee.
14. The petitioner, which had also approached KBC with a view to offering its service on the digital platform, a
request which the 2nd respondent had not acceded to, then sent a complaint of unfair trade practices against KBC
to CCK as the industry regulator, a complaint that has never been acted upon.
15. It would appear from the petitioner’s pleadings and submissions that the core of its grievance is that it has
not been permitted to broadcast on the digital platform while KBC has permitted, initially, SMART TV, which
thereafter stopped broadcasting, and then from 2011, it allowed Multi Choice through GoTV in a joint venture with
KBC.
16. The petitioner alleges that this joint venture was entered into in violation of regulation 11(6) of the Kenya
Communications (Broadcasting) Regulations 2009 since there was no tender as required by the Public
Procurement and Disposal Act, 2005, in particular the regulations relating to private-public partnership.
17. The petitioner avers that when it applied to be permitted to transmit on the DTT platform, it was informed that
it could only apply for a broadcast licence in respect of broadcasting services that it was offering prior to the 2009