Three Media houses want a suit filed in the High Court by an activist seeking to compel Communication Authority of Kenya (CA) to restore free-to-air television services to proceed.
Standard Group, Royal Media Services and Nation Media Group yesterday argued that consumer rights were not among the issues that were canvassed before the Supreme Court.
Through their lawyer Issa Mansour, the media houses said that the objections raised by the Attorney General (AG) and CA were not justified as consumers were not party to the earlier suit.
"Claims by the Attorney General that television viewers had been represented by the Consumer Federation are not accurate as they had not been party to the suit that was heard and determined by the Supreme Court," Mansour told High Court Judge Isaac Lenaola.
The media houses supported the application filed in court by Okiya Omtata, noting that the issues raised had not be argued in any other court and asked the court to allow the application.
"Consumer rights cannot be said to have been canvassed and determined by the courts. What was determined by the Supreme Court and what is before this court are distinct and different," said Mansour.
Mr Omtata said the objections filed by the CAK and AG in the case seeking to compel the authority to restore KTN, NTV, QTV and Citizen television services across the country should be rejected and the suit allowed to proceed.
He argued that the objections were aimed at scuttling the suit and that the argument that the Supreme Court heard and determined the matter was not accurate.
"The Supreme Court addressed concerns raised by the media owners but had not dealt with matters affecting the viewers. The rights of the consumers should not be trampled underfoot," he submitted.
CA and the AG have filed preliminary objections seeking to have the case filed by the activist thrown out, arguing that it had been heard and determined by both the three main courts.
"This litigation has been of a very long history and the issues Omtata is raising have been taken to the highest court in the land. It is not necessary for this court to revisit them, at the risk of restarting another seven-year litigation cycle that will end up in the Supreme Court again," said the AG through Deputy Chief Litigation Counsel Mwangi Njoroge.
CA argues that the High Court has no jurisdiction to overrule or review the orders issued by the Supreme Court as the Constitution makes the latter superior to any other court.
In court papers, Omtata argues that the Supreme Court did not order CA and the Cabinet Secretary for Information to terminate television services by KTN, NTV, Citizen and QTV, which are widely relied on by millions of poor Kenyans.
He observed that majority of the decoders being sold now in the market comprised 90 per cent pay television stations and a paltry 10 per cent free-to-air channels. This, he said, has a huge implication in the promotion universal access to information for the poor who only accessed free-to-air channels before the switch-off.
"The CA discharged their mandate of midwifing the digital migration incompetently and in total violation of Articles of the Constitution such as right to information to the extent that they did not consider the interests of the marginalised who cannot afford digital pay television and depend entirely on free-to-air televisions," he said.
Improper motive
Access to information, argued Omtata, is a prerequisite for media freedom, and freedom to impart information goes hand in hand with the freedom to receive the information.
He added that CA should have acted equitably by balancing the needs of millions of Kenyans who rely on the free-to-air television instead of promoting pay television for improper motive, contrary to the powers bestowed to the authority by the law.
"The authority's action which has resulted in the shutdown of the four television channels across the country is unconstitutional and null and void for contravening the Constitution," he said.e3
The activist submitted that Kenyans had expected that after the Supreme Court ruling, the migration from analogue to digital broadcasting would be handled professionally in a manner that protects public interest and treats all commercial vested interests fairly.
High Court will rule on whether the case will continue on March 10.
