THE Court of Appeal has refused to extend orders blocking the government from shutting down Royal Media Services' frequencies.
Judges GBM Kariuki, Philomena Mwilu and Jamila Mohammed said the company has a case in its appeal against a High Court decision in favour of the Communications Commission of Kenya. However, it has failed to convince them that the suit will be rendered useless if its application to prevent the state from blocking the frequencies is denied.
The Judges reasoned that Royal Media will still get the frequencies back if the appeal is successful.
In January, High Court judge David Majanja dismissed a case filed by Royal Media against CCK after the regulator seized 17 frequencies, which were allegedly acquired illegally.
In his judgment, Majanja said CCK is has a mandate to exercise regulatory authority over broadcast and other electronic media under the Kenya Information and Communications Act until another agency to regulate the industry is established.
The judge, however, gave the company 30 days to appeal his decision.
While confiscating the frequencies, CCK said it has been receiving complaints from broadcasters and strategic national institutions including the Kenya Civil Aviation Authority about interference with their frequencies.
CCK investigated the matter and discovered that some broadcasters were disrupting frequencies assigned to aeronautical companies and other transmitters.
The regulator issued notices to the offending broadcasters directing them to correct the breaches.
Royal Media received a notice and installed filters that shut out frequencies that are not supposed to be within its broadcast range.
However, CCK found out that the company had been broadcasting on certain frequencies which had not been assigned to it. The regulator then wrote a letter to Royal Media demanding it stops using the unauthorised transmissions.
The company claimed CCK is not the body that Article 34(5) of the Constitution says should regulate the industry therefore its directive lacked legal merit. It said the CCK notice was infringing its freedom to broadcast and its right to property.
Royal Media accused CCK of "damaging" its broadcasting interests by allocating frequencies close to those given to the company resulting in interference with its stations.
CCK then went to a magistrate court seeking orders to shut down Royal Media's transmitters at 17 sites. On February 3 CCK confiscated the transmitters.
The company moved to court arguing that its entire broadcasting business and investment worth Sh1.4 billion and a wage bill of approximately Sh180 million, was at stake.