Liquid Telecommunication Kenya Limited v Communication Authority of Kenya (Civil Appeal E054 of 2021) [2023] KEHC 24691 (KLR) (Commercial and Tax) (31 October 2023) (Judgment)
Neutral citation:
[2023] KEHC 24691 (KLR)
Republic of Kenya
Civil Appeal E054 of 2021
PN Gichohi, J
October 31, 2023
IN THE MATTER OF THE KENYA INFORMATION AND COMMUNICATION (LICENCING AND QUALITY SERVICE) REGULATIONS, 2010
AND
IN THE MATTER OF THE KENYA INFORMATION AND COMMUNICATION (COMPLIANCE, MONITORING INSPECTION & ENFORCEMENT) REGULATIONS, 2010
AND
IN THE MATTER OF THE KENYA INFORMATION AND COMMUNICATION (APPEALS) REGULATIONS
AND
IN THE MATTER OF AN APPEAL FROM THE DECISION OF THE COMMUNICATION AND MULTIMEDIA APPEALS TRIBUNAL DATED 4TH JUNE 2021
Between
Liquid Telecommunication Kenya Limited
Appellant
and
Communication Authority Of Kenya
Respondent
(Being an Appeal from the Communication and Multimedia Appeals Tribunal of 4th June 2021 dismissing the Applicants Application dated 3rd December, 2020)
Judgment
1.The background of this matter is that Liquid Telecommunications (herein referred to as the Appellant) entered into a Landing Party Agreement with Pakistan & East Africa Connecting Europe Company (PEACE) Limited on 5th September 2019. The Purpose of the PEACE cable system was to provide alternative submarine cable system which would provide a direct access and link to Asia therefore reducing the latency period to the region and would result in better data/internet and voice experience and improve commercial prospects.
2.To fulfil its end of the agreement, the Appellant was required to obtain a Submarine Cable Landing Rights Licence (SCLR) from the Respondent within 135 days and by a letter dated 6th September 2019, the Appellant submitted its application for the Submarine Cable Rights to Communication Authority of Kenya (herein referred to as the Respondent) which was mandated by law to issue the Licence. This application was duly received by the Respondent on 13th September , 2019. However, the Respondent gave its response vide a letter dated 24th June 2020 declining the Appellant’s Application and as the Appellant followed up on the reasons for the decline, time for filing appeal lapsed.
3.Through the firm of Kiptnness & Odhiambo Advocates LLP Advocates and under a certificate of urgency, the Appellant therefore moved the Communications and Multimedia Appeals Tribunal (herein referred as the Tribunal) vide an application dated 3rd December, 2020 against the Respondent seeking that:1.Spent2.Leave be granted to the Appellant to file and serve an appeal out of time.3.The Memorandum of Appeal and statement of facts of appeal filed simultaneously be admitted and service be allowed out of time.4.The Costs of the Application be provided for.
4.In support of that application was an affidavit sworn by Judy Njeru on 3rd December, 2020. She emphasised the contents of the application and how the Appellant was to get the licence within 135 days as per the agreement and that the Appellant had paid the requisite fees on 11th September, 2019.
5.She deponed that the Respondent declined to grant the said licence but did not give reasons for the decline even though by law, the Respondent was required to provide the reasons within 30 days from the date when it made the said decision to enable the Appellant to appeal in good time. She further averred that by the time the appeal was being lodged at the Tribunal, the Respondent had not supplied the Appellant with reasons for declining to issue the licence. She blamed the delay in filing the appeal on time on the Respondent.
6.Further, she deponed that unless the Application and the subsequent appeal were heard and determined expeditiously, the Appellant stood the risk of breaching the Agreement which would have subjected it to suffer loss. Lastly, she deponed that no prejudice would be occasioned to the Respondent.
7.On its part and through the firm of Igeria & Ngugi Advocates, the Respondent filed a Replying Affidavit sworn on 26th February 2021 by Edward Rinkanya in his capacity as its Ag. Director Legal services. Referring to the Supporting Affidavit , he contended that the Appellant’s attempt to explain delay by blaming the Respondent on its alleged refusal to review its decision, Section 102F of the Kenya Information and Communications Act is clear that the remedy for an unsatisfied Applicant lies therein and not with the Respondent.
8.Further, he deponed that if indeed it was true as was alleged by the Appellant that there was risk of breaching its contractual obligation to PEACE with respect to timelines, then the Appellant should have hastily opted for the remedy provided under the Act. He thus contended that the reasons advanced by the Appellant cannot be reasons for the inordinate delay in filing the Appeal and that further, the Appellant’s indolence in following up the matter with the Respondent. That further, the Appellant’s conduct went against the minimum reasonable /undue delay. He therefore sought dismissal of the application with costs.
9.Both parties presented their submissions and the Tribunal rendered its decision on 4th June 2021 dismissing the Appellant’s application with an order that each party bears its own costs. Aggrieved by that decision , the Appellant filed this appeal on four (4) broad grounds that:-a.The Tribunal erred in law and in fact by failing to appreciate the Appellant’s delay in filing the appeal before the tribunal was sufficiently explained hence inordinate.b.The Tribunal erred both in law and in fact by failing to appreciate that the intended appeal presented genuine issues of administrative law and fact with overwhelming chances of success.c.The Tribunal erred in law and in fact by failing to appreciate that the Appellant’s appeal presented serious issues regarding application of the Kenya Information Communication and Technology Policy and the application of Kenya Information and Communications Act and the rules thereunder.d.The Tribunal erred in law and in fact by refusing to admit the Appeal thus driving the Appellant from the seat of Justice empty handed and without a fair hearing.
10.The Appellant therefore prayed for following orders :-1.The appeal be allowed.2.A finding that the Appellant’s delay in filing the appeal against the Respondent’s decision has been sufficiently explained hence not inordinate.3.An order be and hereby issued that the Appellant’s appeal before the Tribunal is admitted for expeditious hearing and disposal on merits.4.Costs of the appeal.
11.By consent that this appeal be canvassed by way of written submissions, the Appellant and the Respondent filed their submissions dated 18th January, 2022 and 17th February, 2022 respectively.
Appellant’s Submissions
12.On the issue as to whether the delay in filing the Application before the Tribunal was sufficiently explained and therefore excusable, counsel for the Appellant relied on the Supreme Court decision in Nicholus Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2015]eKLR and the case of Leo Sila Mutiso v Hellen Wangari Mwangi[1999]2 EA 231 and maintained that in as much as Section 102 F of the Kenya Information and Communication Act provided for 60 days to lodge an Appeal at the Tribunal, it was not possible to do so because the Respondent refused to give the Appellant reasons for its decision not grant it the SCLR. Counsel further submitted that the proviso to Section 79 of the Act mandates the Respondent to provide reasons for refusal in writing within 30 days. He contended that this Section provided no discretion to the Respondent to refuse to grant the reasons.
13.He maintained that the filing of an Appeal at the Tribunal was dependant on the reasons provided by the Respondents and hence time ought not to have started running until the reasons were provided. To emphasise of the right of a party to be supplied reasons of a decision by the Administrator, counsel cited Section 4 (2) and (3) and Section 6 of the Fair Administration Act and further submitted that the Appellant did all it could though belatedly to file the Appeal at the Tribunal and thus the Tribunal ought not to have dismissed the Application.
14.On the issue of whether the Appeal was arguable with overwhelming chances to succeed, counsel summited the intended appeal before the Tribunal must not necessarily succeed. However, he argued that the decision by the Respondent was prima facie unfair and unjustifiable thus there was need to call the Respondent to defend itself. Counsel further summitted that lawsuits challenging administrative actions should be allowed, to the best extent possible, to be heard and determined on merits.
15.Arguing that the Appellant had met all conditions of the application for the licence, counsel submitted that that the Applicant had a legitimate expectation that the application would be allowed except for a good reason yet to date, the Respondent has never supplied reasons for its decision . Further, and while highlighting the benefits the issuance of the Licence to the Appellant would have brought to the Kenyan public in particular and the importance of Information Technology services as part of Vision 2030, counsel submitted that the intended appeal before the Tribunal has a substantial public interest element.
16.On the issue of prejudice, counsel submitted the refusal to admit the appeal out of time will have the effect of allowing the Respondent’s manifestly unconstitutional and unfair decision to go unchecked. That unlike the Appellant, the Respondent will suffer no prejudice as it will have its day before the Tribunal if this appeal is admitted.
17.Counsel therefore urged the Court to allow the appeal herein, set aside the decision of the Tribunal and direct it to proceed and grant the Appellant leave to lodge its appeal out of time.
Respondent’s Submissions
18.The Respondent opposed the appeal and on the issue of delay in filing the intended appeal before the Tribunal. It submitted that the same was filed five (5) months after the Respondent’s impugned decision made on 24th June 2020. While also relying on the Supreme Court decision in Nicholus Kiptoo Arap Korir Salat (supra), counsel submitted that a delay of five months is inordinate.
19.Highlighting that before the Tribunal the Appellant presented only one (1) main ground being failure by the Respondent to furnish it with reasons for its decision to decline the Application for the SCLR License as required by law despite the Appellant requesting for the same, counsel submitted that this is not a satisfactory explanation for the delay.
20.Counsel further submitted that according to the record, the Appellant first requested for reasons vide its letter dated 1st July, 2020 which letter was not responded to by the Respondent. The Appellant wrote another later dated 7th August, 2020 where it appeared to acquiesce to the decision noting that the Respondent had pronounced itself on the Application for the license. It proceeded to request apparently for an alternative measure wherein it requested for the authority of the Respondent to collaborate with other licensees.
21.He further submitted that the Appellant changed tact vide its letter 10th November, 2020 wherein it requested the reconsideration of the decision of 24th June, 2020 or reasons for the same. From the sequence of events, counsel submitted that the Tribunal was right to find that the decision to lodge an appeal and an application for extension of time was an afterthought and tthe delay thereof could not be attributed to getting reasons from the Respondent.
22.Further and on a without prejudice basis, counsel submitted that the Respondent was fully in agreement with the tribunal’s finding that the Appellant did not require the Respondent to give it reasons for its decision for its disputed decision in order to lodge an appeal.
23.He further submitted considering that Section 5 (3) of the Fair Administration Act enjoins a public agency to furnish every person who is materially and adversely affected by any administrative action reasons for such actions within 30 days of request, the Respondent would have been required to give reasons by latest 1st August, 2020 which is within 30 days from the first request of 1st July, 2020.
24.That when the Respondent did not do so, the Appellant had recourse under a rebuttable presumption that the refusal to grant a license was taken without good reason and this recourse would have been available up to 24th August, 2020 when Sixty (60) days from the date the impugned decision was issued lapsed. Counsel therefore submitted that the Tribunal correctly found the Appellant’s explanation for the delay given insufficient. On this line of argument , counsel placed reliance on the case of George Kiptabut Lelei & another v Fanikiwa Ltd [2019] eKLR.
25.Lastly, counsel relied on Supreme Court of Kenya decision in Law Society of Kenya v Center for Human Rights and Democracy and 12 others [2014] eKLR and submitted that a procedural technicality is a lapse in form and should not go to the root of the suit and therefore, the Tribunal correctly found that the provision of Article do not propose to outlaw procedure but requires procedure be used appropriately to advance the ends of justice. As a consequence, and while citing the case of Kenya Pots Authority v Kenya Power & Lighting Co. Limited [2012] eKLR, counsel submitted that the delay of five months is therefore inordinate and inexcusable and cannot be remedied by application of Article 159 (2) (d) of the Constitution.
Determination
26.I have considered the material placed before this Court and this being the first appeal, the duty of this Court is well settled. Indeed, the Court of Appeal in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR had this to say:-
27.In the appeal before this Court, the issues raised by parties in their rival submissions can be discerned from the Tribunal’s findings and conclusions on 4th June 2021 which held as follows:-
28.The broad issue now that this Court would deal with is whether the Tribunal correctly applied its mind to the law and the evidence presented before it when it dismissed the Appellant’s application for leave to file the intended appeal out of time .
29.The parties herein are in agreement that extension of time is perfectly within the discretion of the Court or the Tribunal as in this case. Such discretion is not one to be imagined. It has to be exercised with certain parameters and principles. As aptly put by both parties, those principles were set out by Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat (supra) thus:-
30.There is no dispute that the timelines for filing an appeal before the Tribunal are set out under Section 102F of the Kenya Information and Communication Act as follows:-
31.The decision by the Respondent was rendered on 24th June 2020 declining the request for the SCLR Licence and the contents of that letter were as follows :-
32.This Court’s understanding of Section 102F of the Kenya Information and Communication Act is that these timelines are pegged on issuance of a decision not issuance of reasons for the decision. The sixty days within which the Appellant ought to have lodged the appeal to the Tribunal started to run from 24th June, 2020. The submissions by the Appellant’s counsel that the timelines for appealing would as of necessity run from the date the said reasons are furnished is not sound in law.
33.From 24th June 2020, the Respondent’s obligation to the Appellant was mandatory, time bound and in the following terms:-
34.This provision does not in any way place the obligation on any Applicant to seek reasons for its decision to decline the application. Once an Applicant presents his application to the Commission, the burden lies in law on the Commission to deal with it accordingly and as it deems fit . However, should it decline the application, then it has by law an unqualified obligation to give reasons within timelines set. To expect an Applicant to follow up on the reasons for the decline of his application would be tantamount to shifting the burden on the Applicant and that is not only untenable but also unpalatable.
35.It is true that Section 4 (2) of the Fair Administrative Action Act provides that every person has the right to be given written reasons for any administrative action that is taken against him. Further, every person has a right under Section 6 (1) of the Act to be supplied with such information as may be necessary to facilitate its application for an appeal or review. Under Section 6 (2), the Act provides that the information referred to under Section 6 (1) may include– (a) the reasons for which the action was taken; and (b) any relevant documents relating to the matter.
36.All these provisions favoured the Appellant in this case and indeed, Courts, including the case of Republic v Procurement Administrative Review Board and 2 others Ex-parte Coast services board and another [2016] eKLR , have often termed delay in furnishing proceedings and decisions to the parties amounts to unfair administrative.
37.In this case however, it was not lost for the Appellant in terms of taking action against the Respondent for failure by the Respondent to provide reasons for its decision. It had recourse under Section 6 (4) of the Fair Administrative Action Act which provides that :-
38.This Court construes that the said proceedings would apply not only in proceedings for review but also in an appeal. This means that the Appellant would have moved the Tribunal within the stipulated time of sixty days even without reasons to enable the Tribunal make appropriate orders.
39.But what did the Appellant do? It engaged the Respondent in a myriad of correspondences soon after the decision of 24th June, 2020. By letter dated 1st July 2020, the Appellant wrote to the Respondent thus:-
40.The Appellant was not seeking just reasons but giving parameters of such reasons. Further, the Appellant was justifying why the decision by the Respondent was wrong but no indication of any urgency in regard to the timelines. Additionally, notwithstanding that the above letter was not responded to by the Respondent , and even though the sixty day period for filing appeal was still running, the Appellant wrote another letter on 7th August 2020 again referring to the Respondent’s letter dated 24th June 2020 and listing the licenses and resources earlier issued by the Respondent and then immediately making a request to the Respondent as follows:-
41.This letter too was not responded to by the Respondent and still no reasons were given by the Respondent. For three (3) more months , the Appellant took no action. While again referring to the letter dated 1st July, 2020 and 7th August, 2020, the Appellant wrote to the Respondent on 10th November 2020:-
42.It is clear from this letter that the Appellant had not made up its mind on the action to take and if it was referring to Section 6 (4) of the Fair Administrative Action Act, the time for filing the appeal was well past by the time the Appellant filed the application dated 3rd December, 2020. This was a delay of five months but what are the circumstances for the delay? In Nicholas Kiptoo Arap Korir Salat (supra), Supreme Court had this to say:-
43.As per the legal provisions expounded herein, the refusal by the Respondent to furnish the reasons for its decision cannot be deemed as extenuating circumstances. It is not an excuse for delay by the Appellant to move the Tribunal as appropriate so as to comply with timelines. As demonstrated herein, the Appellant‘s conduct was one of indecision of what action to take. Its decision to appeal can therefore be described as an afterthought. In the circumstances, the delay in filing the appeal is therefore not only inordinate but also insufficiently explained, the issue of issue of no prejudice to the Respondent notwithstanding.
44.From the forgoing, this Court is satisfied that the Tribunal properly exercised its discretion and there is no reason to interfere with that discretion. This appeal is therefore dismissed. Due to the nature of this matter, each party will bear its own costs of the appeal.
DATED, SIGNED AND DELIVERED (VIRTUALLY) AT KISII THIS 31ST DAY OF OCTOBER 2023.PATRICIA GICHOHIJUDGEIn the presence of:Mr. Kabugu for AppellantMr. Mbaji for RespondentLaureen Njiru Court Assistant