“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest
opportunity and the Court seized of the matter is then obliged to decide the issue right away on the
material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step”.
(Emphasis added).
40. The challenge to the court’s jurisdiction in this matter has been made by the 1 st respondent, which submits
that the court has no jurisdiction to entertain this petition because the dispute is one which ought to be
determined by the Appeals Tribunal established under section 102(1) of the Kenya Communications Act, which
provides as follows:
'There shall be established an Appeals Tribunal for the purpose of arbitrating in cases where disputes
arise between the parties under this Act’.
41. CIC has relied on several decisions of this court among them The Speaker of National Assembly –vs- Hon.
James Njenga Karume, (2008) 1 KLR (EP) 425, Kipkalya Kones –vs- Republic & Another ex-parte Kimani
Wanyoike & 4 Others (2008) 3 KLR (EP) 291, Francis Gitau Parsimei & 2 Others –vs- National Alliance Party & 4
Others Petition No. 356 and 359 of 2012.The principle enunciated in these decisions is that where there is a
procedure for redress for any particular grievance prescribed by the Constitution or an Act of Parliament, that
procedure should be strictly followed.
42. While recognizing the principle established in these cases, I must also bear in mind the nature of the dispute
before me and the jurisdiction vested in the Appeals Tribunal under the Kenya Communication and Information
Act. In this case, the petition is brought pursuant to the provisions of Articles 22, 23, 27, 33 (1), 34 and 165(3) (b)
of the Constitution alleging violation of the petitioner’s constitutional rights due to the discriminatory acts of CCK
and its failure to act in accordance with its statutory mandate. Under Article 22 every person has a right to
institute court proceedings claiming that a right or freedom in the Bill of rights has been violated. Article 23 read
with Article 165(3) (b) of the Constitution vests this court with jurisdiction to determine whether a right or
fundamental freedom has been violated. In my view therefore, this court has jurisdiction to determine this petition
in so far as it alleges that the rights and fundamental freedoms of the petitioner have been violated, a jurisdiction
that the Appeals Tribunal under the Act does not have.
Whether the Petitioner’s Constitutional Rights Have Been Violated
43. The petitioner alleges violation of its constitutional rights under the provisions of Articles 27, 33 and 34(1). It is
an established principle that where a party alleges a breach of fundamental rights and freedoms, he or she must
set out the provisions violated and the manner of violation. See in this regard the decision in Anarita Karimi
Njeru -vs- Republic (supra); Trusted Society of Human Rights Alliance –vs- the Attorney General & 5 Others,
Petition No. 229 of 2012, andinInternational Centre for Policy and Conflict –vs- Independent Electoral and
Boundaries Commission Petition No. 398 of 2012. Consequently, the petitioner has an obligation to show how the
respondents have violated its rights under Articles 27, 33 and 34(1) of the Constitution.
44. The petitioner contends that the actions of the respondents are unfair and discriminatory as they have denied
it an opportunity to transmit its broadcast services on the digital platform; that these actions have also curtailed its
rights under Article 34(1) of the Constitution, and that the actions of the respondents which in effect restrict
transmission of broadcasting on the digital platform to one preferred privileged broadcast services provider have
curtailed the right of the public to freedom of expression as stipulated by Article 33(1) of the Constitution.