Lawyers stand to pay their respect to the Supreme Court judges during the ruling on Digital migration on March 28, 2014. The presiding judges stopped the Information and Communications secretary and the CAK from switching off analogue television signals until September 30, 2014 and ruled the cancellation of the current digital licenses. Photo/JEFF ANGOTE
What you need to know:
Attorney- General Githu Muigai said the court overstepped its jurisdiction by directing the Communications Authority of Kenya (CAK) to issue licences to parties that had not applied for them.
The media firms were entitled to a licence without going through tender, the judges said, because of their massive investments in broadcasting spanning 15 years.
On Friday, Justices Roselyne Nambuye, David Maranga and Daniel Musinga stopped the Information and Communications secretary and the CAK from switching off analogue television signals until September 30.
The government has taken the digital television migration dispute to the Supreme Court, saying a ruling by the Court of Appeal last Friday could hurt investor confidence in the ICT sector.
Attorney- General Githu Muigai said the court overstepped its jurisdiction by directing the Communications Authority of Kenya (CAK) to issue licences to parties that had not applied for them.
“Therefore, on advice of the Attorney General, the government has decided to appeal the whole decision of the Court of Appeal at the Supreme Court. With this action we expect confidence in the ICT sector to be restored,” ICT secretary Fred Matiang’i said in a statement co-signed by Prof Muigai.
On Friday, Justices Roselyne Nambuye, David Maranga and Daniel Musinga stopped the Information and Communications secretary and the CAK from switching off analogue television signals until September 30.
“The ministry is best placed to determine the actual timelines for analogue switch off. By assuming the powers of the Executive in directing the manner and time within which this process should be undertaken, the Court of Appeal was manifestly in excess of its jurisdiction,” read the statement.
The judges ruled that the legitimate expectation of the three local stations — Nation Media Group, the Standard Group and Royal Media — was violated when StarTimes parent firm Pan African Network Group (PANG) was given the signal distribution licence.
The media firms were entitled to a licence without going through tender, the judges said, because of their massive investments in broadcasting spanning 15 years.
“It will be outrageous to reduce to waste the over Sh40 billion they have invested in the industry and it is our view that there should have been exception for them to get the licence,’’ read part of the Friday Court of Appeal ruling.
But the AG’s statement said the court acted in contravention of the law by purporting to cancel a licence issued through a competitive procurement process that had been upheld by the Public Procurement Administrative Review Board.
“A marked feature of the ICT sector is high capital expenditure that is required for infrastructure development. In addition, investors in the sector require regulatory certainty to give them confidence that they will get a return on their investment.”
The judges scrapped the award of the signal distribution licence to China’s StarTimes, and ordered a fresh tender process.
