Communications Authority of Kenya v Kenya Union of Journalists & 2 others (Civil Application E715 of 2024) [2025] KECA 670 (KLR)
The bottom line
#Kenya's Court of Appeal refused to suspend a High Court ruling stripping the Communications Authority of broadcasting code powers, so the Media Council continues developing media standards.
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 intended appeal is arguable
- 2.Whether the appeal, if successful, would be rendered nugatory unless stay of execution and injunction are granted
Key legal issues
#Whether the intended appeal is arguable
The appeal was held arguable given the low threshold, but the Court declined to say more to avoid embarrassing the bench that would hear the appeal.
The Court perused the memorandum of appeal, identified contested questions on whether the broadcasting/programming code is a media standard or licensing condition and which statutory body regulates broadcast content, and found that the low threshold of an arguable appeal, as set out in a plethora of decisions, was met.
Whether the appeal would be rendered nugatory if stay is refused
The Court held the appeal would not be rendered nugatory: the 3rd respondent would have developed the media standards by 7th May 2025, no regulatory lacuna would arise, and any code developed could be revised if the appeal succeeded.
Applying the Kinyanjui v Ketter test on reversibility and compensation, the Court reasoned that the High Court had directed the 3rd respondent to develop age-appropriate standards, that exercise was underway and would complete within the six-month window, and section 46H(ii)(a) requires periodic review of the programming code, so the applicant's position remained reversible.
Whether public interest justified staying the impugned judgment
The Court held that public interest could not justify a stay of a judgment declaring statutory provisions unconstitutional, adopting the Coalition for Reform and Democracy threshold that constitutional supremacy prevails over public interest.
Relying on Attorney General v Coalition for Reform and Democracy, the Court reasoned that it is not in the interest of justice to implement a law that may violate the Constitution or the Bill of Rights; a very strong case showing a lacuna causing grave consequences must be demonstrated, which the applicant failed to do.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability and the nugatory-ness limbs; satisfying only one is fatal to the application
- A very strong case must be made before the Court of Appeal will lift a conservatory order or stay the suspension of a statute declared unconstitutional; the State must show a lacuna likely to cause grave consequences to the populace
- Constitutional supremacy under Article 2 ranks higher than public interest in applications to stay implementation of a declaration of unconstitutionality
Court orders
#- 1.Dismissal of the application dated 18th December 2024
- 2.Costs to the 1st and 3rd respondents
- 3.Civil Appeal No. E970 of 2024 to be heard on a priority basis
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Nairobi
- Constitutional Petition No. 501 of 2019 - Kenya Union of Journalists vs Communications Authority of Kenya and 2 Others
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules - application for stay of execution/injunction pending appeal
Relief refused
#Stay of execution of the High Court judgment declaring the broadcasting/programming code and sections 46A(i),(j) and 46H(i) of KICA unconstitutional
Only one limb of the twin principles under rule 5(2)(b) was satisfied - arguability but not nugatory-ness; no lacuna would arise and constitutional supremacy outweighs the public interest relied on
Injunction restraining the 3rd respondent from developing a replacement broadcasting/programming code
The 3rd respondent is executing its constitutional and statutory mandate under Article 34(5) as read with section 6 of the Media Council Act, and any code developed may be revised if the appeal succeeds
Costs
Application dismissed with costs to the 1st and 3rd respondents
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.
Since the applicant has only satisfied one limb of the twin principles under rule 5 (2) (b) of this Court’s Rules, this application must fail. We hereby dismiss the application with costs to the 1st and 3rd respondents.
Given the nature of the applicant’s appeal, we direct that Civil Appeal No. E970 of 2024, Communication Authority of Kenya vs Kenya Union of* *Journalists and 2 Others be heard on priority basis.
whether an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen is reversible; or if it is not reversible, whether damages will reasonably compensate the aggrieved party.
Constitutional supremacy as articulated by Article 2 of the Constitution has a higher place than public interest.
Issues in the judgment
#The judgment text is partially garbled: paragraphs 2 and 5 contain typographical errors ('efiect', 'sufiered', 'Afiairs') and paragraph 23 contains stray asterisks in the appeal title
The application's own case number is not stated; it is identified only by its date (18th December 2024) and its relationship to Civil Appeal No. E970 of 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Communications Authority of Kenya v Kenya Union of Journalists & 2 others (Civil Application E715 of 2024) [2025] KECA 670 (KLR)", Case Analysis (2025). Civil Application No. [unspecified], arising from Civil Appeal No. E970 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/670/eng@2025-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.