Nairobi — The Court of Appeal on Friday moved the deadline for the migration to digital television to September 30 after finding that at the time the Communications Commission of Kenya (CCK) awarded the second digital Broadcast Signal Distribution (BSD) licence, it was not independently constituted.
The three-judge bench of Roselyn Nambuye, Daniel Musinga and David Maraga therefore declared null and void the licence issued by the CCK to the Pan African Network Group.
"In its composition at the material time, CCK was not the intended body envisaged by Article 34 (3) (d) to regulate airwaves in Kenya after the promulgation of the Constitution of Kenya 2010," Presiding Judge Nambuye explained.
They directed that the CCK successor, the Communications Authority of Kenya - which should be independently constituted - carry out the tendering process a fresh.
In the case of the three appellants however, that is Royal Media Services, Nation Media Group and the Standard Group, it directed that they be awarded a digital BSD licence without needing to go through the tendering process.
"In view of the appellants' massive investment in the broadcasting industry we direct that the independent regulator do issue a BSD licence to the appellants without going through the tendering process upon meeting the terms and conditions set out in the appropriate law and applicable to other licenses," Nambuye directed.
The bench also found that the intellectual property rights of the three appellants were infringed upon when the CCK allowed Pan African Network Group, Star Times and Signet to air their content without their consent.
"The third respondent's direction to the fourth, fifth and sixth respondents to air the appellants FTA (Free to Air) programmes without their consent is a violation of the appellants' intellectual property rights and is hereby declared null and void," Nambuye adjudged.
A finding Go TV Kenya Limited's legal representative Evans Monari said they would be appealing before the Supreme Court given they were affected by the court's finding that the appellants' intellectual property rights had been violated by the CCK.
"I am going to take the liberty to indicate to this court that under Article 164 (4) we will be making an application for an appeal to the Supreme Court," he said.
But lawyer Philip Murgor, who appeared together with Paul Muite on behalf of the appellants, said this would unnecessarily delay the digital migration.
"It would be ill-advised to waste any more of the country's time. The country needs to move toward digital migration and if they move they will simply delay that process further," Murgor told Capital FM News after the verdict.
The Consumer Federation of Kenya (COFEK) which was an interested party, supported this position: "It will be futile for the Government to appeal the ruling at the Supreme Court. In light of such embarrassment to Government, it is only fair that the ICT Secretary resigns from office.
"And that the regulator rescinds all major decisions it has made as the effect of the ruling has the potential to reverse all decisions made by the CCK since August 27, 2010 when the current Constitution was promulgated," COFEK Secretary General Stephen Mutoro demanded.
In the meantime the Court of Appeal has cautioned the Executive against interfering with the appellants' analogue signals pending the September 30 deadline it set.
"Pending compliance with the above orders as regards BSD licensing the second and third respondents are hereby restrained from switching off the appellants analogue frequencies," the bench stated.
It therefore set aside High Court Judge David Majanja's judgement that the appellants had been sufficiently involved in the move from analogue to digital television and that the court would be acting outside its mandate should it compel the government to issue them with a digital BSD licence.