A day after the government switched off the analogue TV frequencies three appellate judges have ordered the suspension of digital migration for the next 45 days.
Judges Alnashir Visram, Paul Kihara and Hannah Okwengu held that three media houses challenging digital migration have an arguable case which might be rendered useless if a temporary order is not granted.
The order by the appeal court will only apply to the Nation Media Group, Royal Media Services and the Standard Group who filed the matter.
The three judges however did not give an elaborate reasoning opting to reserve it until January 31 when they will come back from vacation and give the full reasoning behind grant of order.
Their decision arose out of an application by the three media houses seeking conservatory orders pending hearing of their appeal challenging judge David Majanja's ruling, which gave the digital migration go ahead.
The three media houses said the law is clear that the state is not allowed to interfere with any broadcaster and the switch-off amounts to interference.
In the event court fails to grant them a temporary order reversing the switch-off their appeal will be rendered useless.
Lawyer Paul Muite representing the three media houses argued that his clients will lose goodwill and advertising revenues since their analogue frequencies have been switched off. The Kenyan public too, he said, will be deprived off right to receive information.
He said there is no rush in implementing the digital migration given that the final date for the exercise world over is June 2015.
The media houses also argued that the Ministry of Information and the Communications Commission of Kenya should not have contracted foreign pay television firms to offer digital broadcasts as Article 34 of the constitution bars government interference in media management.
According to Muite, the government should have introduced a Broadcasting Bill to create an independent broadcasting authority to spearhead digital migration instead of leaving it to the CCK which is part of government.
He added that the decision to deny a digital transmission license to the media houses licenses was discriminative and in bad faith.
The media owners complained that pay TV companies Signet Kenya, Star Times Media, Pan Africa Network Group and GoTv Kenya Ltd were rebroadcasting their signals without permission or compensation.
Only Signet (KBC) and Star Times have digital signal distribution licenses from the Ministry of Information and the CCK.
Consumer Federation of Kenya also weighed in supporting the media houses. Cofek termed the switch off as unconstitutional.
But the CCK and Attorney General Githu Muigai said the three media houses should not complain because they were issued with licences twice, which they rejected.
They also said the media houses were represented on all the committees that deliberated on issues digital migration.
The court was informed that the media houses even agreed to a switch-off date and it is hypocritical of them to turn around and hold the country at ransom.
The case will be heard on February 6.