Communications Commission of Kenya v Royal Media Services Limited & 9 others (Civil Application 9 of 2014) [2014] KESC 51 (KLR) (11 April 2014) (Ruling)
Communications Commission of Kenya v Royal Media Services Limited & 10 others [2014] eKLR
Neutral citation:
[2014] KESC 51 (KLR)
Republic of Kenya
Civil Application 9 of 2014
JB Ojwang & SC Wanjala, SCJJ
April 11, 2014
Between
Communications Commission of Kenya
Applicant
and
Royal Media Services Limited
1st Respondent
Nation Media Group Limited
2nd Respondent
Standard Media Group Limited
3rd Respondent
Consumer Federation of Kenya
4th Respondent
Attorney General
5th Respondent
Signet Kenya Limited
6th Respondent
Star Times Media Limited
7th Respondent
Pan African Network Group Kenya Limited
8th Respondent
Gotv Kenya Limited
9th Respondent
West Media Limited
10th Respondent
(Being an application for stay of execution of the judgement and consequential orders arising from the judgement by the Court of Appeal delivered by Nambuye, Maraga and Musinga JJA on 28th March, 2014, in Civil Appeal No. 4 of 2014)
Ruling
A. Introduction
1By separate but concurring decisions of the Honorable Justices Nambuye, Maraga and Musinga, the Court of Appeal issued the following Orders as indicated in the judgment of Lady Justice Nambuye:
2As a result of the decision of the Court of Appeal, three applications seeking a stay of the foregoing Orders were lodged before the Supreme Court.
B. Applications For Stay
3On 7th April, 2014, Civil Application No. 9 of 2014 was lodged by the Communications Commission of Kenya under certificate of urgency, seeking the following orders:
4On 7th April, 2014, Civil Application No. 11 of 2014 dated 4th April, 2014 was filed by the Pan Africa Network Group Kenya Limited and Star Times Media Limited, also under certificate of urgency seeking: th October, 2011 BL/CCK/BSD/2011/02 , notwithstanding the decision of the Court of Appeal nullifying the issuance of the licence and the procurement process.
5On 8th April, 2014 the Hon. The Attorney-General and the Ministry of Information, Communications and Technology filed Civil ApplicationNo. 13 of 2014, also under a certificate of urgency, seeking stay of the Orders granted by the Court of Appeal in Nairobi Civil Appeal No 4 of 2014, pending the hearing and determination of the intended appeal.
6On 7th April, 2014, the certificate of urgency in Civil Application No. 9 of 2014 was heard and granted by the Hon. Justice Wanjala SCJ , and an inter partes hearing set for 10th April, 2014 before Justices Ojwang& Wanjala SCJJ .
7At the hearing of the application inter partes, the Court Ojwang, Wanjala SCJJ signalled the need to hear the intended substantive appeal on the basis of priority, as a basis for conclusive orders on the complex issues. The Court perceived that such expedition would be in the best interests of the parties as well as the public. As this position had general acceptance, the Court invited comment from counsel, especially on the expediency of foregoing a protracted scheme of interlocutory applications.
8Counsel for the 1st, 2nd and 3rd respondents, Senior Counsel Paul Muite, opposed the grant of stay orders at this stage, and was of the view that it was preferable to proceed to substantive responses to the applications seeking stay of the Orders of the Court of Appeal. Learned counsel, Mr. Kiragu Kimani and Mr. Phillip Murgor, appearing with Senior Counsel Paul Muite, expressed concern that issuing orders of stay, at this stage, would enable the 7th, 8th, 9th and 10th respondents to continue in alleged breach of the intellectual property rights of the 1st, 2nd and 3rd respondents, through airing these parties’material without their consent. In response, learned counsel Mr. Kilonzo, appearing for the Communications Commission of Kenya, gave an undertaking to advise the affected parties to cease broadcasting the said matter until the hearing and determination of the intended appeal. He also gave an undertaking on behalf of the Commission, not to switch off any signals until the determination of the intended appeal.
9Learned counsel Mr. Nyaoga, for the 8th and 9th respondents,proposed an approach to expedition in this matter. He indicated that the Court of Appeal had assured counsel that the text of its proceedings would be ready by 11th April, 2014, and thereafter the parties undertake to file the Petition and Record of Appeal within 10 to 14 days. He urged, however, that orders to preserve the substratum of the pending cause would be essential;for if the Court of Appeal’s decision were to be implemented, it would negate the very essence of the further appeal. He was particularly concerned that the Court of Appeal’s order nullifying the operating licence of the 9th respondent until hearing and determination of the intended appeal, should rest in abeyance.
10.Learned counsel, Mr. Njoroge, appearing for the Attorney-General and the Ministry of Information, Communications and Technology, and learned counsel, Mr. Monari appearing for GOTV, supported the proposal by Mr. Nyaoga for expediting the substantive appeal.
11Learned counsel, Mr. Wambua Kilonzo appearing with learned Senior Counsel Fred Ojiambo, and learned counsel Ms. Wahito for the Communications Commission of Kenya,expressed concern that a hearing of the interlocutory applications would take a substantial amount of time. In the circumstances, Mr. Kilonzo suggested that the Court do preserve the substratum of the appeal, and the parties,thereafter, do lodge the appeal within the strictest timelines, in accordance with the directions of the Court. Urging conservation of the substratum of the appeal, counsel submitted that execution of the Orders of the Court of Appeal, particularly with regard to the constitutional standing of the Commission, would have grave and most unpredictable consequences upon numerous other sub-sectors regulated by the Commission,all through since the promulgation of the Constitution of Kenya, 2010.
C. Orders
12The facts and the context of this case, as these emerge from the pleadings and from the submissions of the learned counsel, reveal both the complexity entailed for the parties, as well as the ramifications for the public interest. We have noted the importance and urgency of entertaining the substantive appeal, as a basis for determining the contending claims on merit. In that behalf, and taking into account the several undertakings quite properly made by learned counsel, we hereby give directions for the resolution of the matter, within the framework of the following Orders:
DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF APRIL, 2014. J.B OJWANG JUSTICE OF THE SUPREME COURTS.C WANJALA JUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalRegistrar, Supreme Court