Three media houses have moved to the Court of Appeal today seeking orders to stop the switch off from analogue to digital broadcast until an appeal by the petitioners is heard and determined.
This is after the High Court last week dismissed a petition by media houses and the consumer group Cofek seeking to halt the process of digital migration.
High Court Judge Justice David Majanja also declined to grant orders requested by Paul Muite, lawyer representing the media houses' to extend the switch off date for 30 days pending an appeal by the petitioners.
Lawyer representing the media houses; Nation Media Group, the Standard Group and the Royal Media Services, Paul Muite told a three judge-bench at the Court of Appeal that his clients risk losing Sh 40 billion in investments if they abandon their analogue frequencies and move to other carriers. He further said that the media houses will lose their advertisers during the switch-off.
Muite said the media houses cannot abandon their frequencies for that of a carrier who is in direct competition with them. He added that the media houses should be granted digital licenses and frequencies to operate stating that the Freedom of the Media provided under the article 34 of the constitution cannot be enjoyed without broadcasting licenses and frequencies.
He further said that the digital migration will also result in the loss of constitutional right of Kenyans to access information.
He said the deadline for digital migration is June 2015, therefore there is no hurry for the respondents to implement the move immediately.
Lawyer representing Cofek said that Kenyans need more time to be able to purchase the set boxes stating that majority may not be able to buy the set boxes because they will be paying fees in January.
He said the government also needs to implement policies to reduce the current prices of the set boxes saying that the current prices are too high for many Kenyans.
respondents said the process towards digital migration began in 2006 and the petitioners were invited to take part in the process and had 8 years to prepare for the switch off.
He said Article 34 of the constitution does not entitle the petitioners to Broadcast Signal Distributors (BSD )licenses adding that they would have won the BSD licenses if they had participated in the tendering process.
Lawyers representing the respondents Signet Kenya Ltd, Star Times and Pan African Group argued that granting an order staying the digital migration process pending the appeal would prejudice the respondents as it is difficult for them to operate digital and analogue frequencies alongside each other. He said the two frequencies would interfere with each other and would result to an added cost the operators.
The respondents further said the media houses participated in the Digital Television Committee meetings that deliberated over digital migration under the Media Owners Association which agreed unanimously to postpone the switch off date to December 13. 2013 to allow Kenyans to participate in the country's Golden Jubilee celebrations as well as to create an awareness campaign so that the public can prepare for the migration.
The lawyers for the respondents said granting the orders will result in a spillover effect in the form of more court cases which means Kenyan would not have met the June 2015 deadline.
the process of postponement also violates the rights of many Kenyans who have already bought set boxes and will send the message that digital migration will never kick-off
They further said that the motive of the petition is not public interest but advertising revenue. The Court of Appeal will deliver a ruling on the matter at 3 pm today.