Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others
The bottom line
#Supreme Court upheld the communications regulator's power to license broadcasters after the 2010 Constitution.
What this practically means
#The Supreme Court decided that the Communications Commission of Kenya (now Communications Authority) was legally allowed to issue broadcasting licences even after the new Constitution took effect. The Court also said the 'must-carry' rule, which requires signal distributors to carry local channels, is fair and does not violate copyright. It rejected claims that Royal Media Services had a legitimate expectation to get a licence, because the government official who made promises lacked authority.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the Communications Commission of Kenya was the body contemplated under Article 34 of the Constitution
- 2.whether the 1st, 2nd and 3rd respondents had a legitimate expectation to be issued with a Broadcast Signal Distribution (BSD) licence
- 3.whether the 1st, 2nd and 3rd respondents’ intellectual property rights were infringed by the appellants
- 4.whether the petition filed at the High Court was barred by 'issue estoppel', and amounted to an abuse of the Court process, for being a collateral attack against the decision by the Public Procurement Administrative Review Board [Tribunal]
- 5.whether the final orders of the Court of Appeal were in excess of the powers and jurisdiction conferred by the Constitution
Key legal issues
#Whether the Communications Commission of Kenya (CCK) was the body contemplated under Article 34 of the Constitution to regulate airwaves and issue BSD licences.
The CCK was not unconstitutional. The Constitution did not envisage a legal vacuum, and existing laws, including the Kenya Information and Communications Act establishing the CCK, remained in force subject to being construed to conform with the Constitution. The body under Article 34(5) is the Media Council of Kenya, not the CCK.
The Supreme Court held that the Constitution's transitional provisions (Fifth and Sixth Schedules) were designed to ensure a harmonious transition without a legal vacuum. The CCK was established by the Kenya Information and Communications Act, 1998, which remained in force after the 2010 Constitution. The Court distinguished between Article 34(3), which guarantees freedom of establishment subject to licensing procedures, and Article 34(5), which mandates Parliament to establish a body to set media standards. The Court found that the Media Council Act, not the Kenya Information and Communications Act, was the legislation enacted to give effect to Article 34(5). Therefore, the CCK was lawfully mandated to continue licensing until Parliament enacted new legislation, and its actions were not automatically void upon the Constitution's promulgation.
Whether the 1st, 2nd and 3rd respondents had a legitimate expectation to be issued with a BSD licence.
The respondents did not have a legitimate expectation to a BSD licence. The promises made by the Permanent Secretary were not lawful as he lacked the capacity to make them, and the ICT Policy was a general statement of government aspirations, not a specific promise by the licensing authority (CCK).
The Court applied the established principles of legitimate expectation: there must be a clear, unambiguous promise by a public authority with the lawful capacity to make it, and the expectation cannot override clear statutory or constitutional provisions. The Permanent Secretary had no role in licensing under the Kenya Information and Communications Act. The ICT Policy was a general policy framework, not a promise to any specific entity. Furthermore, the respondents' claim was based on their investment in broadcasting infrastructure, but the Court noted that a BSD licence is for signal distribution, which is technically different from broadcasting. The Court also found that the procurement process was lawful and the respondents' disqualification for failing to meet the bid bond validity period was a proper exercise of CCK's powers.
Whether the 'must-carry' rule infringed upon the intellectual property rights of the 1st, 2nd and 3rd respondents.
The 'must-carry' rule did not infringe upon the respondents' intellectual property rights. The signal distributors were not 'rebroadcasting' the content, and the rule fell under the 'fair dealing' exception to copyright.
The Court, drawing from comparative jurisprudence (particularly the Philippines Supreme Court in ABS-CBN), found that the signal distributors were not 'broadcasting organizations' as they did not take financial or editorial responsibility for the content. They merely retransmitted the content without alteration. The Court also applied the 'fair dealing' criteria from Canadian law (CCH Canadian Ltd. v. Law Society of Upper Canada) and found that the purpose (public access to information), character (mere retransmission), and effect (no competition with the original work) of the dealing were fair. The Court further held that the claim of intellectual property infringement was a plain copyright claim that should have been pursued under the Copyright Act, not as a constitutional petition, invoking the principle of constitutional avoidance.
Whether the petition filed at the High Court was barred by issue estoppel, being a collateral attack on the decision of the Public Procurement Administrative Review Tribunal.
The High Court petition was barred by issue estoppel in relation to the 1st and 2nd respondents, as they were relitigating the same issue (denial of a BSD licence) that had been finally determined by the Tribunal. The 3rd respondent lacked locus standi on this issue.
The Court adopted a broad approach to issue estoppel, finding that the relief sought before the Tribunal (annulment of the decision denying the licence) was essentially the same as the relief sought in the High Court petition (an order compelling the issuance of a BSD licence). The 1st and 2nd respondents, through their consortium National Signal Networks, had participated in the Tribunal proceedings and chose not to appeal its decision to the High Court as provided by law. The Court held that the Tribunal's decision was final and binding, and the respondents could not circumvent this by filing a constitutional petition two years later. The Court distinguished the 3rd respondent, who was not a party to the Tribunal proceedings, but found it had no locus standi to challenge the denial of the licence to the consortium.
Whether the final orders of the Court of Appeal were in excess of the powers and jurisdiction conferred by the Constitution.
Yes, the Court of Appeal exceeded its powers by ordering the issuance of a BSD licence to the respondents without following the procurement process, and by declaring the CCK unconstitutional and its actions void.
The Supreme Court found that the Court of Appeal's orders violated the doctrine of separation of powers by usurping the executive function of licensing. The order to issue a licence without a tender process contravened Article 227 of the Constitution, which requires a fair, equitable, transparent, competitive, and cost-effective system for procuring goods and services. The declaration that the CCK was unconstitutional and its actions void was also in error, as the Court found the CCK was lawfully in place during the transition period. The Court of Appeal's orders were set aside, and the Supreme Court issued its own orders, including directing the 1st appellant (CAK) to consider the respondents' application for a BSD licence within 90 days.
Legal principles established
#- The 2010 Constitution did not create a legal vacuum; existing laws remain in force until replaced.
- The Media Council of Kenya, not the Communications Authority, sets media standards under Article 34(5).
- Legitimate expectation cannot override clear law or Constitution; a promise by an unauthorized officer is not binding.
- The 'must-carry' rule is a fair dealing exception to copyright and does not infringe intellectual property.
- Issue estoppel applies in constitutional matters only in the clearest cases of relitigation.
Court orders
#- 1.The Orders of the Court of Appeal made on the 28th of March, 2014 are hereby set aside.
- 2.The declaration of the Appellate Court of 28th March 2014 annulling the issuance of a BSD licence by the 1st appellant herein (CCK as it then was) to the 5th appellant herein (Pan African Network Group Kenya Limited) is hereby set aside.
- 3.The Order by the Court of Appeal directing the independent regulator to issue a BSD licence to the 1st 2nd and 3rd respondents herein (National Signal Networks) is hereby set aside.
- 4.The 1st Appellant shall, in exercise of its statutory powers, and within 90 days of the date hereof, consider the merits of applications for a BSD licence by the 1st, 2nd and 3rd respondents, and of any other local private sector actors in the broadcast industry, whether singularly or jointly.
- 5.The 1st appellant (CAK) shall, in exercise of its statutory powers, ensure that the BSD licence issued to the 5th appellant herein, is duly aligned to constitutional and statutory imperatives.
- 6.The 1st appellant (CAK), in exercise of its statutory authority, shall, in consultation with all the parties to this suit, set the time-lines for the digital migration, pending the international Analogue Switch-off Date of 17th June, 2015.
- 7.Upon the course of action directed in the foregoing Orders (d & e) being concluded, the 1st appellant (CAK) shall notify the Court through the Registry; and the Registrar shall schedule this matter for mention, on the basis of priority, before a full Bench.
- 8.This Judgment shall be transmitted to the Clerks of the National Assembly and Senate by the Registrar of the Court.
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the judgment
The concurring judgment agrees with the main judgment's conclusion but provides a separate analysis on the nature of media freedom under Article 34, the separation of content provision and signal distribution, and the application of Article 47 on fair administrative action to the licensing process.
Upon careful consideration of the main judgment, I hereby put forth my humble opinion on certain pertinent issues in the appeal, as seen through different eyes. These views shall not change the observations made in the main judgment, which is to say that the conclusion will remain unchanged.
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No. 4 of 2014
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
- Consolidated with
- Petition No. 14A of 2014, Petition No. 14B of 2014, Petition No. 14C of 2014
Relief refused
#The Court of Appeal's order directing the independent regulator to issue a BSD licence to the 1st, 2nd and 3rd respondents without going through the tendering process.
The order lacked a foundation in law as it contradicted Article 227 of the Constitution and the Public Procurement and Disposal Act. There cannot be a legitimate expectation for a grant of a licence without adherence to statutory or constitutional provisions.
The Court of Appeal's declaration that the BSD licence issued to Pan African Network Group Kenya Limited was null and void.
The Supreme Court set aside this declaration, finding that the CCK was not unconstitutional and its actions, including the issuance of the licence, were not void.
Costs
Each Party shall bear its own costs at the High Court, Court of Appeal and the Supreme Court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Orders of the Court of Appeal made on the 28th of March, 2014 are hereby set aside.
The declaration of the Appellate Court of 28th March 2014 annulling the issuance of a BSD licence by the 1st appellant herein (CCK as it then was) to the 5th appellant herein (Pan African Network Group Kenya Limited) is hereby set aside.
The Order by the Court of Appeal directing the independent regulator to issue a BSD licence to the 1st 2nd and 3rd respondents herein (National Signal Networks) is hereby set aside.
The 1st Appellant shall, in exercise of its statutory powers, and within 90 days of the date hereof, consider the merits of applications for a BSD licence by the 1st, 2nd and 3rd respondents, and of any other local private sector actors in the broadcast industry, whether singularly or jointly.
Each Party shall bear its own costs at the High Court, Court of Appeal and the Supreme Court.
Hence it is our conclusion that, CCK was not only legally mandated to regulate airwaves and licensing under the 1998 and 2009 Acts, but also, the promulgation of the Constitution of 2010 did not render its actions immediately unconstitutional.
It is clear from the two statutes that the body contemplated by Article 34(5) of the Constitution is the Media Council of Kenya, and not the successor to the CCK.
There cannot be a legitimate expectation against clear provisions of the law or the Constitution.
We would hold that the 'must-carry' rule which required the appellants to carry the signals of the 1st, 2nd and 3rd respondents, is by no means inconsistent with the requirement of fairness.
We thus conclude that issue estoppel is applicable to this case, with regard to the question as to whether the 1st, 2nd and 3rd respondents should have been issued with a BSD licence.
Key timeline
#Practical implications
#Licensing and legitimate expectation after Constitution
The Supreme Court clarified that the Communications Authority retains licensing powers under existing statutes until new legislation. Lawyers should advise clients that legitimate expectation claims require a lawful promise from the actual licensing authority, not general policy statements. The 'must-carry' rule is constitutionally valid, so broadcasters must comply.
Broadcast licensing and must-carry compliance
Businesses in broadcasting and signal distribution must note that the 'must-carry' rule is enforceable. The Court upheld it as a fair dealing exception. Companies should ensure their distribution agreements include carriage of local channels as required. Also, the regulator must reconsider licence applications within 90 days, so businesses should engage proactively.
Your rights to diverse local TV channels
The 'must-carry' rule ensures that signal distributors carry a minimum number of Kenyan channels, protecting access to local content. Individuals benefit from diverse broadcasting. The ruling also means the regulator continues to operate under existing laws, so consumer complaints about licensing or signal distribution can still be directed to the Communications Authority.
Frequently asked questions
#What did the Supreme Court decide in the Royal Media Services case in Kenya?+
The Supreme Court ruled that the Communications Authority could continue licensing broadcasters after the 2010 Constitution. It set aside orders that would have forced the regulator to issue a licence to Royal Media Services, and instead directed it to reconsider all applications fairly.
Is the 'must-carry' rule legal in Kenya?+
Yes, the Supreme Court upheld the 'must-carry' rule requiring signal distributors to carry local Kenyan channels. The Court said it does not violate copyright because it falls under fair dealing, and it promotes access to diverse local content.
Can a government promise give you a right to a broadcasting licence in Kenya?+
No. The Court said a legitimate expectation must be based on a clear promise by an official with lawful authority. A promise by a Permanent Secretary who has no role in licensing cannot create a legal right to a licence.
What is the role of the Communications Authority of Kenya after the 2010 Constitution?+
The Supreme Court confirmed that the Communications Authority (formerly CCK) continues to regulate broadcasting and issue licences under existing laws until Parliament enacts new legislation. The Media Council of Kenya handles media standards, not licensing.
Later judgments citing this (25)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Olang’ v Chimba & another (Enviromental and Land Originating Summons E048 of 2026) [2026] KEELC 5352 (KLR)[2026] KEELC 5352 (KLR)31 Aug 2026
- County Secretary of Kajiado, Ole Sakude & 46 others v Salaries & Remuneration Commission & another (Civil Appeal 230 of 2020) [2026] KECA 1613 (KLR)[2026] KECA 1613 (KLR)31 Jul 2026
- Gatacha (Suing as a Lawful Attorney of Peter Njonjo Kibera & Agnes Wairimu Kibera Vide Special Power of Attorney Dated 11th October 2011) v Nairobi City County & 4 others (Environment and Land Case E610 of 2025) [2026] KEELC 4396 (KLR)[2026] KEELC 4396 (KLR)13 Jul 2026followed
- Ongoro v Director of Criminal Investigations & 4 others (Civil Appeal 92 of 2020) [2026] KECA 1441 (KLR)[2026] KECA 1441 (KLR)10 Jul 2026applied
- Musanga & 38 others v Cabinet Secretary, Ministry of Land, Housing, and Urban Development & 5 others (Environment and Land Petition E010 of 2025) [2026] KEELC 3853 (KLR)[2026] KEELC 3853 (KLR)24 Jun 2026
- Keitany & another v Chief Land Registrar & 4 others (Environment and Land Constitutional Petition E030 of 2024) [2026] KEELC 3617 (KLR)[2026] KEELC 3617 (KLR)5 Jun 2026applied
- Okoiti v Ministry of Lands, Public Works, Housing and Urban Development & 30 others (Land Case Petition E052 of 2025) [2026] KEELC 3230 (KLR)[2026] KEELC 3230 (KLR)29 May 2026applied
- Kuria v Kenya Broadcasting Corporation (Civil Appeal 382 of 2018) [2026] KECA 971 (KLR)[2026] KECA 971 (KLR)15 May 2026
- Mountain View Estate Residents Trust v Board of Trustees National Social Security Fund & 7 others (Environment and Land Case E533 of 2024) [2026] KEELC 2526 (KLR)[2026] KEELC 2526 (KLR)4 May 2026applied
- Musyoki v Muchemi & 4 others (Environment and Land Case E023 of 2025) [2026] KEELC 2842 (KLR)[2026] KEELC 2842 (KLR)30 Apr 2026
- Nrandzaka v Josephat & 3 others (Enviromental and Land Originating Summons E025 of 2025) [2026] KEELC 2749 (KLR)[2026] KEELC 2749 (KLR)30 Apr 2026applied
- Too v Teleposta Pension Scheme Registered Trustees (Land Originating Summons E051 of 2025) [2026] KEELC 2346 (KLR)[2026] KEELC 2346 (KLR)28 Apr 2026applied
- Bett v Cabinet Secretary, Ministry of Land, Housing and Urban Development & 8 others (Constitutional Petition E010 of 2024) [2026] KEELC 2347 (KLR)[2026] KEELC 2347 (KLR)23 Apr 2026followed
- Kiambu Club Limited v Kiambu County Government & 2 others (Petition E002 of 2024) [2026] KEELC 2283 (KLR)[2026] KEELC 2283 (KLR)23 Apr 2026applied
- Wainaina v Njii & another (Environment and Land Case E233 of 2023) [2026] KEELC 2180 (KLR)[2026] KEELC 2180 (KLR)21 Apr 2026applied
- Villa Greens Limited v Creekview Limited (Environment and Land Miscellaneous Case E303 of 2025) [2026] KEELC 2129 (KLR)[2026] KEELC 2129 (KLR)21 Apr 2026
- Republic v Land Registrar Naivasha; Mwangi & 2 others (Interested Parties); Mwangi (Ex parte Applicant) (Environment and Land Judicial Review Case E002 of 2025) [2026] KEELC 2165 (KLR)[2026] KEELC 2165 (KLR)16 Apr 2026
- Wangaru v Nyamongo (Environment and Land Appeal E003 of 2021) [2026] KEELC 2035 (KLR)[2026] KEELC 2035 (KLR)16 Apr 2026
- Mwangi v Skyview Gardens Limited & another (Environment and Land Case E542 of 2025) [2026] KEELC 1995 (KLR)[2026] KEELC 1995 (KLR)14 Apr 2026applied
- Mbugua (Suing as the Administrator of the Estate of Joseph Kiarie Mbugua alias Joseph Kiarie Mbogwa) v Tripple Eight Properties Ltd & 2 others (Civil Appeal 612 of 2019) [2026] KECA 699 (KLR)[2026] KECA 699 (KLR)25 Mar 2026
- Mohamed v Adan & 3 others (Civil Appeal E680 of 2023) [2026] KECA 527 (KLR)[2026] KECA 527 (KLR)13 Mar 2026applied
- Bloggers Association of Kenya (BAKE) v Attorney General & 6 others (Civil Appeal 197 of 2020) [2026] KECA 430 (KLR)[2026] KECA 430 (KLR)6 Mar 2026followed
- Karobere v Mutu & 2 others (Environment and Land Case E019 of 2024) [2026] KEELC 1947 (KLR)[2026] KEELC 1947 (KLR)26 Feb 2026
- Muruthii v District Land Adjudication & Settlement Officer -Amung’entia Adjudication Section & another; Ciomaroo (Interested Party) (Environment and Land Petition E001 of 2026) [2026] KEELC 918 (KLR)[2026] KEELC 918 (KLR)9 Feb 2026applied
- Northern Block Residents Limited v Air View Properties Limited & 2 others (Environment and Planning Petition E042 of 2025) [2026] KEELC 1343 (KLR)[2026] KEELC 1343 (KLR)4 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others", Case Analysis (2014). Petition 14, 14A, 14B & 14C of 2014 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2014/53/eng@2014-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.