The Court of Appeal on Friday delivered a ruling consequently moving the deadline for the migration to digital television signal transmission to September 30. This ruling cited that at the time the Communications Commission of Kenya (CCK) awarded the second digital Broadcast Signal Distribution (BSD) licence, it was not independently constituted.
The three-judge bench of Roselyn Nambuye, Daniel Musinga and David Maraga therefore declared null and void the licence issued by the CCK to the Pan African Network Group.
“In its composition at the material time, CCK was not the intended body envisaged by Article 34 (3) (d) to regulate airwaves in Kenya after the promulgation of the Constitution of Kenya 2010,”Presiding Judge Nambuye explained.
The court also directed that the CCK successor, the Communications Authority of Kenya–which should be independently constituted–carry out the tendering process a fresh.
In the case of the three appellants however, that is Royal Media Services, Nation Media Group and the Standard Group, it directed that they be awarded a digital BSD licence without needing to go through the tendering process.
“In view of the appellants’ massive investment in the broadcasting industry we direct that the independent regulator do issue a BSD licence to the appellants without going through the tendering process upon meeting the terms and conditions set out in the appropriate law and applicable to other licenses,” Nambuye directed.
The bench also found that the intellectual property rights of the three appellants were infringed upon when the CCK allowed Pan African Network Group, Star Times and Signet to air their content without their consent.
“The third respondent’s direction to the fourth, fifth and sixth respondents to air the appellants FTA (Free to Air) programmes without their consent is a violation of the appellants’ intellectual property rights and is hereby declared null and void,” Nambuye added.
But GOTV's legal representative, Evans Monari said they would be appealing before the Supreme Court given they were affected by the court’s finding that the appellants’ intellectual property rights had been violated by the CCK.
Lawyer Philip Murgor, who appeared together with Paul Muite on behalf of the appellants, said this would unnecessarily delay the digital migration, a view suported by The Consumer Federation of Kenya (COFEK) which was an interested party in the lawsuit.
“It will be futile for the Government to appeal the ruling at the Supreme Court. In light of such embarrassment to Government, it is only fair that the ICT Secretary resigns from office, and that the regulator rescinds all major decisions it has made as the effect of the ruling has the potential to reverse all decisions made by the CCK since August 27, 2010 when the current Constitution was promulgated,” COFEK Secretary General Stephen Mutoro remarked.
The Court of Appeal also cautioned the Executive against interfering with the appellants’ analogue signals pending the September 30 deadline it set.
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