Communication Commission Of Kenya v Tetra Radio Limited [2015] KECA 391 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that courts can only quash actual regulatory decisions, not letters, and cannot grant remedies nobody asked for in judicial review.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the licence was ever issued
- 2.whether the letter dated 18th October, 2007 amounted to a decision by the appellant to cancel that licence
- 3.the parameters of the judicial review orders sought vis a vis the orders of the High Court
Key legal issues
#Whether a licence was ever issued to the respondent
No licence was ever issued; only drafts were exchanged and the tender process never progressed to a contract.
The court examined the correspondence, the tender conditions and the invitation to tender, finding only draft licences exchanged. The respondent failed to pay the initial licence fee by 30th August 2003 despite notice, and never produced the licence it claimed had been issued before either court.
Whether the letter of 18th October, 2007 constituted a quashable decision
It was a reply to the respondent's inquiry, not a decision to cancel a licence; certiorari could not lie.
The decision to end the process had effectively been taken earlier by the notice of 25th July, 2003, and further indulgence extended in January 2004 was ignored. The 2007 letter merely informed the respondent the matter was considered closed following its inability to fulfil obligations.
Whether the High Court could order release of frequencies and payment by instalments
Those orders were mandatory in nature, outside the certiorari and prohibition prayers, and usurped the Commission's statutory mandate.
Judicial review is confined to the orders sought in the statutory statement. Ordering payment of licence fees and release of frequencies, including bands not tendered for, was beyond the court's function and interfered with an independent body discharging a public function.
Legal principles established
#- Certiorari lies only to quash a decision by a public body taken contrary to law, procedure or natural justice; a mere reply or correspondence is not a decision capable of being quashed.
- A court in judicial review proceedings cannot grant orders beyond the reliefs sought in the statutory statement; courts cannot usurp the administrative functions of independent regulatory bodies.
- Only the statutory statement under Order 53 may contain the reliefs sought; reliefs cannot be introduced by submissions.
Court orders
#- 1.Appeal allowed in its entirety
- 2.All orders issued by the trial court on 24th June, 2011 set aside
- 3.Respondent to pay the costs of this appeal to the appellant, here and in the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Civil Application No. 141 'B' of 2008
- Jurisdiction invoked
- First appellate jurisdiction over the High Court judgment in judicial review proceedings (Civil Appeal; judicial review under Order 53 of the Civil Procedure Rules; Kenya Communications Act)
Relief refused
#Order of certiorari quashing the letter dated 18th October, 2007
The letter was a mere reply, not a decision capable of being quashed
Orders for release of the 370-470 MHz bandwidth and 2.3-2.5 GHz broadband spectrum
Mandatory orders of mandamus not sought and outside judicial review
Order directing payment of licence fee in instalments
Usurped the administrative function of the appellant
Costs
The respondent to pay the costs of this appeal to the appellant, here and in the High 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.
In the result, this appeal is allowed; we set aside all the orders issued by the trial court on 24 th June, 2011 for the reasons set out above. We also order that the respondent do pay the costs of this appeal to the appellant, here and in the High Court.
It is trite law that the order of certiorari issues to bring up a decision by a public body mandated by law to do something in the arena of public administration, which action is found to have been taken by that body contrary to or outside the law, procedure or against the rules of natural justice.
This is a reply not a decision.
We found both the order directing how the respondent was to pay by instalments licence fees and the order for the appellant to release the frequencies way out of the ambit of the judicial review proceedings before the learned judge.
Moving out to order how the appellant could receive the licence fee by paying the requisite fees in instalments, fell well outside the jurisdiction of the court
Issues in the judgment
#Internal inconsistency in the dates of the impugned letter: the judgment variously refers to the letter of 18th October, 2007 and later as 'the letter of 18 th July, 2007', and to the respondent's letter of 15th June, 2007 as 'this letter of 15 th July, 2007'.
Internal inconsistency in the licence fee figures: the tender financial conditions state an annual licence fee and initial fee, but the judgment refers to the respondent's initial licence fee as both 'Sh.1.5 million' and '$1.5 million' against a bid price of $5.2 million; the respondent's letter also quotes '$5,200.00'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Communication Commission Of Kenya v Tetra Radio Limited [2015] KECA 391 (KLR)", Case Analysis (2015). Civil Appeal No. 121 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/391/eng@2015-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.