Essar Telecom Kenya chief executive officer, Srinivasa Iyengar. Photo/FILE
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.
Essar further submitted that ACL had no capacity to enter into an inter-connection agreement with them, saying the Internet provider lacked a numbering plan, a point of inter-connection with operators, International Subscriber Digital Network User Part (ISUP), Mobile Application Part (MAP) and roaming.
Lawyer Njoroge Regeru for Essar argued that CCK made draconian orders and also denied them an opportunity to be heard, thus depriving the mobile firm of its fundamental constitutional rights.
Formal caution
CCK accused Essar of failing to comply with the ruling directing them to re-establish the link and renegotiate the inter-connection agreement to realign it with the commission’s regulatory framework.
The industry regulator said Essar’s disregard for and non-compliance with their directive had forced the commission to enter a formal caution on the mobile phone’s compliance record for 2009 and fined them Sh500,000.
But Essar says by complying with CCK orders, the company would be exposed to colossal and unpredictable financial liabilities resulting from the likely abuse of the re-established link.
Consequently, Essar says the move would also expose its partners in the industry to financial losses by exposing their networks to abuse.
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