COMMUNICATIONS LAW AND POLICY

GROUP FOUR WORK ASSIGNMENT

MEMBERS
1. Yvonne wachira
2. Charles Kariuki
3. Tilah Lenyangume
4. Lyncy Tonique
5. Fauz
6. Ruth Matoke
7. Samuel N Muigai 22-2798
8. Bariu Makena
9. Jennifer Praise
Media Owners Association v Attorney General (2014) Eklr.
Facts of the case
On 2nd and 5th August 2011, the 3rd Respondent (Communication
Commission Of Kenya) invited broadcasters to apply for licenses under
a newly developed regulatory framework. This was done through a
public Notice in local daily Newspapers. A deadline of 15th November
2011 was given for compliance thereof. The main complaint by the
petitioner is that CCK is not the body envisaged under Article 34(5) of
the Constitution because it lacks Independence. This is because its Board
of Directors established under section 6 of the Kenya Communication
Acts (1998) is composed of appointees of the president and the Minister
in charge of communications and includes Permanent Secretaries in the
Ministries responsible for communication, Finance, Internal security as
well as information and Broadcasting.
The Main issues raised in this case were:
 Whether the petitioner’s rights under Article 34 of the Constitution
had been violated.
  Whether Article 34(3) of the Constitution contemplates and
envisages an independent Broadcasting Authority which is
independent of Government control, political or commercial
interest.
3rd Respondent’s case
a) Council for the 3rd Respondent stated that the petition is barred by
the fact of res judicata in that the place of standing of the CCK vis
– a – vis Article 34 of the constitution had been settled in the
previous decisions of this court; Royal Media Services v Attorney
General and 2 others, petition 346 of 2012 and Royal Media
Services and 2 others v Attorney General and 6 others ,petition
557 of 2012. Both decisions are apparently on appeal but the point
made in that regard is that the court has already pronounced itself
and it will be improper to relitigate it.

b) The question whether the CCK is the lawful independent

institution contemplated by Article 34 has been settled by the
establishment of the Communications Authority of Kenya under
Sections 2 and 3 of the Kenya Information and Communication
Act (2013).

c) That the court shall proceed to dismiss the petition.

d) The council also stated that that the petition is res subjudice and
should be struck out. This is because the petition by Nation Media
Group Ltd and 2 others v Attorney General and 4 others which
raises the issue of whether the communications Authority of
Kenya is the body mandated to regulate airwaves and other forms
of signal distribution under Article 34 of the Constitution.

Petitioners case
a) The petitioner council argued that the Communications Authority
of Kenya was not in force when proceedings were commenced
and therefore any submissions with regards to it were of no value.
Further that the complaints on record are still live and require
solution.
b) Res judicata cannot be properly invoked since the issues are
different and the parties are also different. That the petition should
therefore proceed on its merits.

Prayers sought.

a) A declaration that the petitioner rights under Article 34 have been

infringed and threatened with violation by the 3rd respondent that
in the discharge of its statutory mandate the 3rd respondent cannot
act in a manner that infringes, violates or denies the petitioner and
its constituent member their constitutional right to property.
b) A declaration that Article 34(3) of the Constitution contemplates
and envisages an independent broadcasting Authority of
Government, political interests or commercial interests.
c) A declaration that the public notices issued on 5th August 2011 and
11th August 2011 are null and void as the 3rd respondent has no
Constitutional mandate to license broadcasters under Article 34.
d) An order of injunction restraining the 2nd and 3rd respondent from
cancelling, stopping, suspending, restricting or in any way from
interfering with the petitioners and members licenses, frequencies
broadcasting spectrum and broadcasting services.
e) The respondent to pay the petitioner cost of the petition.

Courts finding
The court said the prayers in petition 30 of 2014 and this petition
were different hence each may be determined on its own merits.
The petition cited by the 3rd respondent are wholly different from
the present one.