Third party joins Essar dispute with regulator

Air Touch Communications (ACL) has been enjoined in a suit where Essar Telecom Kenya wants Communications Commission of Kenya (CCK) blocked from enforcing a disputed contract between the Internet provider and the mobile telephony.

Lady Justice Jeanne Gacheche allowed ACL to be a party to the suit.

ACL submitted that the court findings on the disputed contract would be a pointer to the firm’s future operations in the telecommunication industry.

The fourth telecoms service provider under the brand Yu, Essar, moved to court in January and obtained temporary orders barring CCK from enforcing its ruling directing Essar to re-establish an inter-connection agreement with ACL.

Lady Justice Gacheche of the constitutional and judicial review division has granted Essar Telecom leave to apply for orders quashing each of the decisions made by CCK on January 8, 2010.

She has also stayed key findings made by the industry regulator in favour of ACL pending hearing and determination of the case.

According to the October 15, 2009 agreement, ACL was to make international calls using Yu’s E1 link.

E1 link is a technology that enables the transmission of several voice or data channels simultaneously on the same transmission facility.

Essar disconnected the link on November 4, 2009, after it realised that ACL had generated virtual International Mobile Subscriber Identity (IMSI) which did not exist in their system.

Upon suspending the link, the virtual IMSI ceased immediately, said Essar.

In generating the international subscriber identity, ACL, allegedly used the technology to create roaming calls.

Essar claims they are yet to unlock their out-roaming call services. Yu commands 600,000 subscribers on its network.

Essar argues that CCK lacked jurisdiction to determine the rights and obligation under which the contract was entered into by the parties.

The mobile firm says the contract was not an inter-connection agreement as contemplated under the CCK regulations and instead was a contract between private parties and strictly guided by parties’ independent terms.

CCK ruling compelled Essar to re-establish the inter-connection agreement with ACL but Essar told the court that CCK had no requirement under the regulations to enforce a binding contract between the two parties.