challenging the decision of the state to switch from analogue broadcasting, the High Court, Lenaola J, had
in Media Owners Association -vs- The Communications Commission of Kenya and 2 Others, Petition No. 244 of
2011, issued injunctive orders restraining the Commission from interfering with licences, frequencies, spectrums
and broadcasting services pending the hearing and determination of the petition. The 1st respondent submitted
that the two matters which are the subject of the orders are still pending and the orders are still in force, and it
could therefore not commence the process of issuing new licences while the orders were still subsisting.
25. CCK contends that the petitioner is a new entrant in the frequency distribution field and with the stay of the
migration from analogue to digital, there is no framework under which the petitioner can be granted a licence
under the framework, and there can therefore be no discrimination as the relevant law has been stayed by the
court.
26. With regard to the signal distribution authority given to KBC, CCK contends that the authority was given much
earlier, through a letter dated 28th February 1998; that the authority permitted KBC to form the company known as
Signet; and consequently, the petitioner has not established a factional background to be entitled to the orders it
seeks.
27. CCK also questions the jurisdiction of this court to hear this petition. It argues that the petitioner is wrongly
before this court as section 102 of the Kenya Information and Communications Act establishes an Appeals
Tribunal to which the petitioner should have sought redress. It relies on various decisions of this court for the
proposition that if there is a dispute resolution mechanism established, parties must resort to it before coming to
the High Court; and that therefore this court has no jurisdiction at this point in time as the dispute resolution
mechanism set up under the relevant statute has not been invoked. It therefore urges the court to dismiss the
petition with costs for two counsel.
The 2nd Respondent’s Case
28. Mr. Ndambiri presented the case for KBC, the 2nd respondent. He relied on the affidavit of Mr. Waithaka
Waihenya sworn on 4th June 2012 and written submissions dated 20th April 2012. The 2ndrespondent denies that it
is providing signal distributions services illegally. It submits that it had authority to provide such services before
the law came into force, and the law provides that it can continue so doing.
29. KBC contends that there are no facts presented before the court to support the allegation of violation of
Articles 27, 33 and 34 of the Constitution; that the petitioner has no capacity or locus to bring the petition or make
the allegations it has made against the parties; and that the petitioner has not shown how KBC has participated in
denying, it the opportunity to provide digital broadcasting.
30. Like CCK, KBC contends that the petitioner has never been a broadcaster on the analogue or digital platform
and refers the court to the petitioner’s averments in the affidavit in support of the petition. It contends that the
documents presented before the court show that the petitioner has never been a broadcaster; that it has never
been granted a permit to deal with analogue or digital broadcasting; that the licences it has produced were issued
to a different company called Cable Vision Limited; that since the petitioner has not indicated that it is bringing the
suit on behalf of others or in the public interest, it has no locus and its petition should be struck out with costs.
The Interested Party’s Case
31. Mr. Ouma for the Interested Party associated himself with the submissions of the 1 st and 2ndrespondent and
urged the court to dismiss the petition.