[2023] KEHC 23791 (KLR)

Republic v Chiloba, Director General Communications Authority of Kenya; Katiba Institute & 5 others (Exparte Applicants) (Judicial Review Application E041 of 2023) [2023] KEHC 23791 (KLR) (Judicial Review) (19 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23791 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review Application E041 of 2023

JM Chigiti, J

October 19, 2023

Between

Republic

Applicant

and

Ezra Chiloba, Director General Communications Authority Of Kenya

Respondent

and

Katiba Institute

Exparte Applicant

Law Society Of Kenya

Exparte Applicant

Kenya Union Of Journalists

Exparte Applicant

Kenya Editors Guild

Exparte Applicant

Kenya Correspondents Association

Exparte Applicant

Bloggers Association Of Kenya

Exparte Applicant

Judgment

Brief Background 1. On the 20th March, 2023, Citizen TV, NTV, K24, KBC, TV47, and Ebru TV broadcasted live the protests by the opposition.

2. This triggered The Respondent into issuing a censure on 22nd March, 2023 that is at the heart of these proceedings, pursuant to section 46A(c) of the KICA and in exercise of the Communication Authority's (the Authority) overarching mandate to ensure the observation of public interest in all broadcasting services.

3. According to the Respondent, the impugned advisory was also based on Section 46A (k) of the KICA which implores the Authority to ensure compliance with broadcasting regulations and monitor compliance with broadcasting and media standards as well as Regulation 19(1)(c)& (d) of the KICA(Broadcasting) Regulations, 2009 which require a licensee of broadcasting services to ensure that no broadcast by its stations glorifies violence or depicts violence in an offensive manner; or is likely to incite, perpetuate hatred, vilify any person or section of the community.

4. The Respondent believes that the live broadcast of the demonstrations run a foul the provisions of Regulation 19(1)(c) & (d) of the KICA(Broadcasting) Regulations, 2009 and that warranted a reminder by the Authority through the Respondent to the Six TV Stations of their obligations under the KICA.

5. The CA “issued notices to the identified broadcasters to take immediate remedial action” indicating that “failure to adhere in to the outlined obligations shall be acting in breach of license conditions which shall attract liability under relevant provisions of the law including revocation of broadcast licenses or broadcast frequencies” in the censure.

6. The media houses are aggrieved by the decision of the Respondent and they have moved this court through an Application dated 5th April 2023 for orders of:a.Prohibition restraining the Respondent from enforcing the decision of 22 March 2023 to censure six TV stations (Citizen TV, NTV, K24, KBC, TV47, and Ebru TV) for covering opposition demonstrations on 20 March 2023 or at all;b.Certiorari to bring to this court and to quash the Communication Authority’s decision of 22 March 2023 to censure six TV stations (Citizen TV, NTV, K24, KBC, TV47, and Ebru TV) for covering opposition demonstrations on 20 March 2023 or at all;c.A declaration that:i.Regulation 19(a), (b), (c), and (d) of the Kenya Information and Communications (Broadcasting) Regulations, 2009 unconstitutionally limits the freedom of expression, media, and information in vague and overbroad terms contrary to Articles 33, 34, and 35 of the Constitution; andii.The Programming Code for Broadcasting Services in Kenya, 2019 has expired and is of no legal effect under 46H(2)(b) of the Kenya Information and Communications Act, 2009 and section 11(1) and (4) of the Statutory Instruments Act, 2013. Further, that Clause 10. 2.1 of the Programming Code does not sustain the CA’s decision.d.Mandamus directing the CA to review the Programming Code for Broadcasting Services in Kenya, 2019 under section 46H(2)(b) of the Kenya Information and Communications Act, 2009. e.Costs of the litigation to deter CA’s repeated attempts at censorship of Kenyan media.

7. The Application is supported a Statutory Statement dated 24th March,2022, and a Verifying Affidavit sworn by Lempaa Suyianka on even date.

8. The Application is opposed.

The Applicants’ Case: 9. The Applicants challenge the Communication Authority of Kenya’s (CA)’s decision of 22nd March,2023 which according to them unconstitutionally, illegally, and unprocedurally censure six TV stations (Citizen TV, NTV, K24, KBC, TV47, and Ebru TV) for covering opposition demonstrations on 20th March,2023.

10. Enforcing the censure, CA “issued notices to the identified broadcasters to take immediate remedial action” indicating that “failure to adhere to the outlined obligations shall be acting in breach of license conditions which shall attract liability under relevant provisions of the law including revocation of broadcast licenses or broadcast frequencies”.

11. The Applicants challenge the censure for limiting media houses freedom of expression, information, and the media and is therefore unconstitutional.

12. They contend that CA’s decision is a non-decision because it violates the rules of natural justice and that the decision is illegal and was informed by an error of law because the cited portion of the Programming Code does not say what CA claims it says and that the Code is expired and a nullity under section 46H(2)(b) of the Kenya Information and Communications Act, 2009.

13. The Applicants are also challenging the constitutional and statutory legality of Regulation 19(a), (b), (c), and (d) of the Kenya Information and Communications (Broadcasting) Regulations, 2009, limiting freedom of expression on broad and overbroad terms such as: “use of offensive language, including profanity and blasphemy”, “sexual matters in an explicit and offensive manner” and “glorifies violence or depicts violence in an offensive manner”.

14. It is their case that the Multimedia Appeals Tribunal does not have jurisdiction to decide the constitutionality of the Regulations or the Programming Code under section 102A of the KICA statute. The jurisdiction belongs to the High Court under Article 165(3).

15. The censure limits freedom of expression, information, and the media and is, therefore, unconstitutional.

16. Further that Kenya is a state party to the International Covenant on Civil and Political Rights (the “ICCPR”) whose Article 19 entitles everyone to “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.

17. Also, that the right to freedom of expression is also protected by Article 9 of the African Charter on Human and Peoples’ Rights (the “African Charter”) which entitles every individual to “right to receive information” and to “express and disseminate his opinions within the law”. By dint of Article 2(6) both treaties form part of the laws of Kenya.

18. The Applicants’ case is also that Article 33 of the Constitution guarantees every person the right to freedom of expression, which includes: freedom to seek, receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research. Freedom and independence of the media is guaranteed but does not extend to: propaganda for war; incitement to violence; hate speech; or advocacy of hatred.

19. Article 34(2) is also refered and it states that the State shall not “exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium”; or “penalize any person for any opinion or view or the content of any broadcast, publication, or dissemination”.

20. In this regard is said that Kenya has an obligation under Article 21(1) to observe, respect, protect, promote and fulfil the right to freedom of expression secured by Article 33(1) which includes: (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research.

21. Here, however, invoking the Programming Code, the CA censured six television stations for their broadcast of live opposition protests with threats of sanctions under the “relevant provisions of the law including revocation of broadcast licenses or broadcast frequencies”.

22. According to them any limitation of any right must be by law, must pursue a legitimate aim, and be the least restrictive measure in an open and democratic society. In support of this argument the Applicants’ refer to the Supreme Court Kandie Case.

23. It is also the Applicants submissions that CA’s censure was not by law, did not pursue a legitimate aim, and was not the least restrictive measure as provided under Article 24.

24. The Applicants refer to General Comment No. 34, Article 19, Freedoms of Opinion and Expression at para 25 which explains that a measure is “provided by law”, if that “law” (i) is accessible to the public, (ii) is formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly, and (iii) provides adequate safeguards against unfettered discretion for the restriction of freedom of expression on those charged with its execution.

25. They argue that first, having never been gazetted, the Programming Code is not “a law” that can limit any freedom under Article 24. Worse, the Programming Code expired in September 2021 without coming into force since section 13 of the Code stipulated: “The effective date of this Programming Code is six (6) months from the date of Gazettement”.

26. Further that Section 46H(2)(b) of the Kenya Information and Communications Act, 2009 required the Code to be reviewed every two years and that it never happened hence the expiry. Besides, section 11(1) and (4) of the Statutory Instruments Act, 2013 requiring all statutory instruments to be laid before Parliament lest they expire the CA never laid the Programming Code before Parliament before it expired.

27. The Applicant’s case is that the censure was not concerned with any of the four legitimate speech limitations under Article 33(2): propaganda for war; incitement to violence; hate speech; or advocacy of hatred. Instead, contrary to Article 34(2) the CA attempted through the censure to “exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium”; or “penalize any person for any opinion or view or the content of any broadcast, publication, or dissemination”.

28. The Applicants state that Article 24(1) requires a proportionality analysis that inter alia takes into account the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

29. It is argued that there are in fact less restrictive means through the Media Council complaints process. The case of Jacqueline Okuta v Attorney General [2017] eKLR is cited where the Court crystallized the following four sub-components of proportionality, holding that a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there is a proper relation (“proportionality stricto sensu” or “balancing”) between the importance of achieving the proper purpose and the special importance of preventing the limitation on the constitutional right”.

30. It is also their case that in the ultimate analysis, the decision is unproportional, unconstitutional and invalid because of the absence of a credible relation between limitation of speech through the censure and the protection of others reputation, the state in pursuing that objective has used means which are not proportional to, that objective.

31. The Applicant’s argue that none of the six media houses was heard on the decision to censure them. Consequently, CA’s decision is a non-decision because it violates the rules of natural justice as espoused under Articles 47 and 50 and sections 4(1), 7(2)(a)(v), and 7(2)(c) of the FAA. See, Supreme Court, Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others [2019] eKLR.

32. In this case, it is argued that CA’s censure was informed by two material errors of law. First, the cited portion (section 10. 2.1) of the Programming Code does not sustain CA’s claim. This section deals with Guidelines on PWD accessibility to broadcasting services. CA claimed, however, that it had relied on it. Secondly, that the Code has expired and has no legal effect under section 46H(2)(b) of the Kenya Information and Communications Act, 2009 and section 11(1) and (4) of the Statutory Instruments Act, 2013. Further that Section 46H(2)(b) of KICA requires the CA to review the Programming Code at least once every two years.

33. CA is said to have last reviewed the Programming Code in September 2019 and as such the Code expired in September 2021, over 18 months ago. Besides that, the Code is a statutory instrument. Section 21(1) of the Statutory Instruments Act 2019 requires every statutory instrument to be published in the Gazette. Under section 23(1) of the Statutory Instruments Act, 2013, statutory instruments come into force on the date specified in the statutory instrument or on publication in the Gazette.

34. The Applicants further argue that under Section 11(4), all regulation-making authorities must submit copies of all statutory instruments for tabling before the National Assembly and that where a statutory instrument required to be laid before Parliament is not so laid, it ceases to have effect immediately after the last day for it to be laid but without prejudice to any act done under the statutory instrument before it became void. The Programming Code is also said to invalid under the Statutory Instruments Act, and therefore the CA could not rely on it as the basis of the censure.

35. It is the Applicants’ argument that section 46 of the Kenya Information and Communication Act, 2009 requires all broadcasters to: “gather and present news and information accurately and impartially”; and “make reasonable efforts to present alternative points of view” either in the same Programme or in other programmes within the period of current interest, when controversial or contentious issues of public interest are discussed. CA’s decision also contravened this section.

36. Regulation 19(a), (b), (c), and (d) of the Kenya Information and Communications (Broadcasting) Regulations, 2009 (predating the Constitution) is said to prohibit broadcasts which: “use of offensive language, including profanity and blasphemy”, “sexual matters in an explicit and offensive manner” and “glorifies violence or depicts violence in an offensive manner”. The Regulation limits freedom of expression. Further that, Article 24 is in mandatory terms that the purported limitation must be justifiable in an open and democratic society based on human dignity, equality and freedom.

37. They argue that Article 24 (3) obligates the state or person seeking to justify a particular limitation to demonstrate to the Court or tribunal or other authority that the requirements of Article 24 have been satisfied. The case of Cyprian Andama v Director of Public Prosecution & another; Article 19 East Africa (Interested Party) [2019] eKLR is cited.

38. The Applicants argument is that the principle that a vague legislation is not law has also become well settled in a long line of authorities from this Court. An example would be in the case of Aids Law Project v Attorney General [2015] eKLR at para 67 where the Court held that legislation ought not to be too vague that the subjects must await the interpretation given to it by the judges before they can know what is and what is not prohibited. The Court therefore found at para 80 that section 24 of the HIV and AIDS Prevention and Control Act, 2006 did not meet the principle of legality which is a component of the rule of law.

39. The Applicants also place reliance on the case of Andare v Attorney General [2015] eKLR where the court nullified section 29 of the Kenya Information and Communications Act (the “KICA”) because it was vague and did not define ‘grossly offensive’, ‘indecent’, ‘obscene’ or ‘menacing character’ or messages which could course ‘annoyance’, ‘inconvenience’, ‘needless ‘anxiety’ leaving the definition to the subjective interpretation of the Court.

40. The Applicants also refer to the case of Robert Alai v Attorney General [2017] eKLR at para 56 where section 132 of the Penal Code which created the offence of undermining authority of a public officer without a definition was nullified. The Court found that the section left the words too general, vague and wide to the extent that it was unclear when a person could be said to have undermined a public officer’s authority.

The Respondents’ Case: 41. The Respondent filed a Replying Affidavit sworn on 18th May, 2023 by Ezra Chiloba.

42. In the Affidavit the Respondent argues that The impugned advisory was made in public interest and as a courteous reminder to broadcasters of their mandate under the Kenya Information and Communications Act and the Programming Code for Broadcasting Services in Kenya (the “Programming Code”).

43. According to the respondent, the impugned advisory was anchored on Section 46A(c) and (k) of the Kenya Information and Communications Act, 1998 and Regulations 19(1)(c) of the Kenya Information and Communications Broadcasting) Regulations, 2009.

44. It admits that issues around, the advisory amounts to an action as contemplated under Section 102A(c) of the KICA which provides that “A person aggrieved by any action taken, any omission made or any decision made by any person under this Act and the first instance forum for the resolution of the instant application is the Communications and Multimedia Appeals Tribunal contemplated by Section 102A(c) of the KICA as a result of this Honorable Court is divested of the jurisdiction to determine this matter as a first instance forum.

45. Reliance is placed in the Supreme Court decision of Samuel Kamau Macharia & Another V Kenya Commercial Bank Limited & 2 Others [2012] eKLR where it was held as follows:“a court can only exercise jurisdiction that has been donated to it by either the constitution or legislation or both. Therefore, it cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law”

46. Further that the jurisdiction of this Honorable Court has been wrongly and prematurely invoked. Reliance is placed in the case of The Owners of the Motor Vessel & Lilian S Vs Caltex Oil (Kenya) Ltd (1989) KLR 1. The Respondent seeks for this court to down its tools and to refer this Application to the statutory bodies established to resolve the dispute in the first instance.

47. The Respondent refers to Article 159 of the Constitution of Kenya, 2010 which provides that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. The Ex parte Applicants it is argued approached this Court without exhausting the remedies provided under the Kenya Information and Communications Act, 1998.

48. Reliance is placed in the Court of Appeal case of Speaker of National Assembly V Karume (1992) KLR 21 where it stated as follows:“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.”

49. The Respondent also relies on the Court of Appeal case of Geoffrey Muthinja Kabiru & 2 Others - vs - Samuel Munga Henry & 1756 others (2015) eKLR thus held:“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked.”

50. According to the Respondent the instant application does not fall within the exemptions under Section 9(2) of the FAA Act and for a party to be exempted from exhausting existing remedies under the FAA Act, they must apply to court for exemption under Section 9(4) of the FAA Act and that the Ex parte Applicants did not apply to this court prior to filing their application for exemption from exhausting existing remedies. To support this argument the Respondent places reliance on the case of Krystalline Salt Limited v Kenya Revenue Authority [2019] eKLR.

51. The Respondent argues that it is a matter of local notoriety, that the Six TV Stations broadcasted live the protests by the opposition on 20th March, 2023 in which scenes of violent confrontations between the police and charged opposition party adherents were depicted to the whole country.

52. Regulation 19(1)(c) & (d) of the KICA(Broadcasting) Regulations, 2009 is said to require a licensee of broadcasting services to ensure that no broadcast by its stations glorifies violence or depicts violence in an offensive manner; or is likely to incite, perpetuate hatred, vilify any person or section of the community.

53. In justifying the action, it believes that the live broadcast of the demonstrations run a foul the provisions of Regulation 19(1)(c) & (d) of the KICA(Broadcasting) Regulations, 2009 and warranted a reminder by the Authority through the Respondent to the Six TV Stations of their obligations under the KICA.

54. Reliance is placed in the case of Republic Versus Judicial Service Commission Exparte Sheria Mtaani & Nadia Boru Mohammed Judicial Review Application No. E003 of 2021 where the Court dismissed an application for faulting a public body for acting within its mandate.

On The Order Of Prohibition 55. It is the Respondent’s case that in order for a party to succeed in being granted the remedy of prohibition, they must demonstrate that the decision or act complained of was illegal in the sense that it is contrary to the Constitution, statute or simply that the decision maker in carrying out the impugned decision exceeded the powers conferred by statute. This position is supported by the case of Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & Others Civil Appeal No. 266 of 1996 (CAK) [1997| eKLR in which the said Court held as follows about conditions that must obtain before the remedy of prohibition can be issued:“Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings.”

56. They urge this Honourable Court not to issue an order of prohibition.

On The Order Of Mandamus 57. The Respondent argues that Section 21(1) of the Statutory Instruments Act gives a lifeline of ten (10) years to statutory instruments unless they are reviewed and since the impugned Programming Code was gazetted in 2019, it can only expire in 2029 and not in 2021 as alleged by the Ex-parte Applicants.

58. The Respondent argues that Section 46H(2(b) of the KICA is a necessary safeguard for review of instruments under the KICA to ensure that regulations are up to date with the dynamic needs of the industry but that does not invalidate the existing instruments/regulations if a review is not conducted in two years and that in the circumstances, the order of mandamus should not be granted.

Analysis and Determination: 59. I have carefully considered the Application, the statutory statement, the verifying affidavit, the replying affidavits, and respective submissions and authorities of the rival parties’ and the following are the issues for determination;

The Nature Of The Right To Freedom Of Expression And Of The Media 60. Article 19 of the UDHR adopted by the United Nations in 1948, provides that:“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

61. Article 19 (2) of the ICCPR, adopted by the United Nations in 1966, provides that:“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art, or through any other media of his choice.”

62. In General Comment No. 34 (CCPR /C/GC/34) on the provisions of Article 19 of the ICCPR, the United Nations Human Rights Committee emphasizes the close inter-linkage between the right to freedom of expression and the enjoyment of other rights. It observes at Paragraphs 2 and 3 as follows:2. Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society. The two freedoms are closely related, with freedom of expression providing the vehicle for the exchange and development of opinions.3. Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.

63. The importance of the freedom of expression and of the media has been considered in various jurisdictions, and such decisions offer some guidance on why the freedom is considered important in a free and democratic society. In Charles Onyango-Obbo and Anor vs Attorney General (Constitutional Appeal No.2 of 2002), the Supreme Court of Uganda (per Mulenga SCJ) stated that:“Democratic societies uphold and protect fundamental human rights and freedoms, essentially on principles that are in line with J.J. Rousseau’s version of the Social Contract theory. In brief, the theory is to the effect that the pre-social humans agreed to surrender their respective individual freedom of action, in order to secure mutual protection, and that consequently, the raison d’etre of the State is to provide protection to the individual citizens. In that regard, the state has the duty to facilitate and enhance the individual’s self-fulfillment and advancement, recognizing the individual’s rights and freedoms as inherent in humanity….Protection of the fundamental human rights therefore, is a primary objective of every democratic constitution, and as such is an essential characteristic of democracy. In particular, protection of the right to freedom of expression is of great significance to democracy. It is the bedrock of democratic governance.” (Emphasis added)The Constitutional and statutory legality of Regulation 19(a), (b), (c), and (d) of the Kenya Information and Communications (Broadcasting) Regulations, 2009.

64. Article 33 of the Constitution guarantees every person the right to freedom of expression, which includes: freedom to seek, receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research. Freedom and independence of the media is guaranteed but does not extend to: propaganda for war; incitement to violence; hate speech; or advocacy of hatred.

65. Under Article 34(2) the State shall not “exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the Page 3 of 11 dissemination of information by any medium”; or “penalize any person for any opinion or view or the content of any broadcast, publication, or dissemination”.

66. By invoking the Programming Code, to censure the six television stations for their broadcast of live opposition protests with threats of sanctions under the “relevant provisions of the law including revocation of broadcast licenses or broadcast frequencies” amounts to an unconstitutional limitation of the media houses right under Article 33 of the Constitution.

67. The Respondent’s conduct as informed by Regulation 19(a), (b), (c), and (d) of the Kenya Information and Communications (Broadcasting) Regulations, 2009 is illegal and unconstitutional. It cannot run parallel to the robust Constitutional rights limitation framework as provided for under Article 24. Any unconstitutional limitation of the media houses right under Article 33 of the Constitution stands on quicksand and the same amounts to a violation of the Interested Parties’ freedom of expression and I so hold.

68. Kenya is a state party to the International Covenant on Civil and Political Rights (the “ICCPR”) whose Article 19 entitles everyone to “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.

69. The right to freedom of expression is also protected under Article 9 of the African Charter on Human and Peoples’ Rights (the “African Charter”) which entitles every individual to “right to receive information” and to “express and disseminate his opinions within the law”. By dint of Article 2(6) both treaties form part of the Laws of Kenya.

70. General Comment No. 34, Article 19, Freedoms of Opinion and Expression at para 25 explains that a measure is “provided by law”, if that “law” (i) is accessible to the public, (ii) is formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly, and (iii) provides adequate safeguards against unfettered discretion for the restriction of freedom of expression on those charged with its execution.

71. Section 46H(2)(b) of the Kenya Information and Communications Act, 2009 required the Code to be reviewed every two years. That never happened hence the expiry. This is besides, section 11(1) and (4) of the Statutory Instruments Act, 2013 requiring that all statutory instruments be laid before Parliament lest they expire. This court agrees with the Applicants’ argument that The Programming Code expired in September 2021.

72. The Respondent argues that Section 46H(2(b) of the KICA is a necessary safeguard for review of instruments under the KICA to ensure that regulations are up to date with the dynamic needs of the industry. It is clear that the review as has not been done post 2010 so as to ensure that the regulations accord with Article 33 and 34 of The Constitution.

73. The dynamic needs of the industry must be the National values and the principles of governance as set out in Article 10(2) as follows:a.patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;b.human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;c.good governance, integrity, transparency and accountability; andd.sustainable development.

74. It is this court’s finding that the Respondent has dropped the ball and failed to uphold Section 46H(2(b) of the KICA since it has failed to engage in aligning the Regulations within the dictates of Article 10 and the minimum necessary safeguard towards reviewing the Regulations so as to ensure that regulations are up to date with the dynamic needs of the industry.

75. The censure was not concerned within any of the four legitimate speech limitations under Article 33(2): propaganda for war; incitement to violence; hate speech; or advocacy of hatred and on this count it is illegal.

76. The Respondent sought to justify the censure that it was contrary to Article 34(2). The Respondent attempted through the censure to “exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium”; or “penalize any person for any opinion or view or the content of any broadcast, publication, or dissemination”.

77. Article 24(1) requires a proportionality analysis that inter alia takes into account the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

78. In Jacqueline Okuta v Attorney General [2017] eKLR this Court crystallized the following four sub-components of proportionality, holding that a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there is a proper relation (“proportionality stricto sensu” or “balancing”) between the importance of achieving the proper purpose and the special importance of preventing the limitation on the constitutional right.

79. The decision is unproportionable, unconstitutional and invalid because of the absence of a credible relation between limitation of speech through the censure and the protection of others reputation, the state in pursuing that objective has used means which are not proportional to that objective.

80. In any event the Code existed, the Code predates the Constitution 2010. It must be read with the necessary modification and alteration so as to be brought into conformity with the Constitution under Section 7 of Schedule 6.

81. Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 in which the Court citing Council of Civil Unions vs. Minister for the Civil Service [1985] AC 2 and an Application by Bukoba Gymkhana Club [1963] EA 478 at 479 held that:“In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards...Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

82. Lord Diplock’s classic dictum in Council of Civil Service Unions versus Minister for the Civil Service (1985) 1 AC 374 provides a useful guide on what an unlawful decision entails where the learned judge spoke of these grounds as follows:“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.”

83. By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

84. It is this court’s finding and I so hold that the Respondent acted illegally and the decision carried in the March 2023 letter must be quashed. From the above analysis it is clear that the Respondent did not understand correctly the law that regulates his decision-making power as a result of which he could not give effect to it.

The Doctrine Of Ripeness 85. In Petition No. 628 of 2014 consolidated with Petition No. 630 of 2014 and Petition No. 12 of 2015 the court held as follows:“At Para 107. The court held that the jurisdiction of this court stems from Article 165 (3) of the Constitution, which provides that: (3) Subject to clause (5), the High Court shall have- (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; (c) … (d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of- (i) the question whether any law is inconsistent with or in contravention of this constitution. (Emphasis added)”108. Article 22 (1) of the Constitution grants every person the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened, while Article 258 of the Constitution provides that: Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.109. We agree with the AG and the DPP that the Court should not engage in an academic or hypothetical exercise. As the High Court stated in John Harun Mwau & 3 Others v Attorney General and 2 Others, Petition No. 65 of 2011: Petition No. 628 of 2014 consolidated with Petition No. 630 of 20154 and Petition No. 12 of 2015 Page 29 “We also agree with the submissions of Prof. Ghai that this Court should not deal with hypothetical and academic issues. In our view, it is correct to state that the jurisdiction to interpret the constitution conferred under Article 165(3) (d) does not exist in a vacuum and it is not exercised independently in the absence of a real dispute. It is exercised in the context of a dispute or controversy.”110. In similar vein, in the case of Samuel Muigai Ng'ang'a vs The Minister for Justice, National Cohesion and Constitutional Affairs and Another, Petition No 354 of 2012, Lenaola J expressed himself on the issue of justiciability as follows: “The Petitioner has crafted questions to which he seeks an answer but where is the dispute that I am supposed to resolve? Elsewhere above, I have merely set out the Law as applicable to the issues raised but what is justiciable about those issues? Black’s Law Dictionary defines ‘justiciable’ as “proper to be examined in courts of justice”. It further goes on to define a ‘justiciable controversy’ as “a controversy in which a claim or right is asserted against one who has an interest in contesting it.” The other definition given of a justiciable controversy is “a question as may properly come before a tribunal for decision.”111. The Court proceeded to cite the decision in Patrick Ouma Onyango & 12 Others v The Attorney General & 2 Others, Misc. Appl No. 677 of 2005 in which the court endorsed the doctrine of justiciability, as stated by Lawrence H. Tribe in his treatise American Constitutional Law, 2nd Edition, p. 92 that; 'In order for a claim to be justiciable as an article III matter, it must “present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted.” In part, the extent to which there is a 'real and substantial controversy is determined under the doctrine of standing' by an examination of the sufficiency of the stake of the person making the claim, to ensure the litigant has suffered an actual injury which is fairly traceable to challenged action and likely to be redressed by the judicial relief requested. The Petition No. 628 of 2014 consolidated with Petition No. 630 of 20154 and Petition No. 12 of 2015 Page 30 substantiality of the controversy is also in part a feature of the controversy itself-an aspect of ‘the appropriateness of the issues for judicial decision...and the actual hardship of denying litigants the relief sought. Examination of the contours of the controversy is regarded as necessary to ensure that courts do not overstep their constitutional authority by issuing advisory opinions. The ban on advisory opinion is further articulated and reinforced by judicial consideration of two supplementary doctrines: that of 'ripeness' which requires that the factual claims underlying the litigation be concretely presented and not based on speculative future contingencies and of 'mootness' which reflects the complementary concern of ensuring that the passage of time or succession of events has not destroyed the previously live nature of the controversy. Finally, related to the nature of the controversy is the 'political question' doctrine, barring decision of certain disputes best suited to resolution by other governmental actors'.112. However, we are satisfied, after due consideration of the provisions of Article 22, 165(3) (d) and 258 of the Constitution, that the words of the Constitution, taken in their ordinary meaning, are clear and render the present controversy ripe and justiciable: a party does not have to wait until a right or fundamental freedom has been violated, or for a violation of the Constitution to occur, before approaching the Court. He has a right to do so if there is a threat of violation or contravention of the Constitution.113. We take this view because it cannot have been in vain that the drafters of the Constitution added “threat” to a right or fundamental freedom and “threatened ……. contravention” as one of the conditions entitling a person to approach the High Court for relief under Article 165(3) (b) and (d) (i). A “threat” has been defined in Black’s Dictionary, 9th Edition as “an indication of an approaching menace e.g. threat of bankruptcy; a Person or a thing that might cause harm” (emphasis added). The same dictionary defines “threat” as “a communicated intent to inflict harm or loss to another…”114. The use of the words “indication”, “approaching”, “might” and “communicated intent” all go to show, in the context of Articles 22, 165(3) (d) and 258, Petition No. 628 of 2014 consolidated with Petition No. 630 of 20154 and Petition No. 12 of 2015 Page 31 that for relief to be granted, there must not be actual violation of either a fundamental right or of the Constitution but that indications of such violations are apparent.115. What is the test to apply when a court is confronted with alleged threats of violations aforesaid? In our view, each case must be looked at in its unique circumstances, and a court ought to differentiate between academic, theoretical claims and paranoid fears with real threat of constitutional violations. In that regard, Lenaola J. in Commission for the Implementation of the Constitution vs The National Assembly & 2 Others [2013] eKLR differentiated between hypothetical issues framed for determination in that case and the power of the High Court to intervene before an Act of Parliament has actually been enacted and in circumstances such as are before us where the impugned Act has been enacted and has come into force. He stated in that regard that: “…… where the basic structure or design and architecture of our Constitution are under threat, this Court can genuinely intervene and protect the Constitution.”We agree with the Learned Judge and would only add that clear and unambiguous threats such as to the design and architecture of the Constitution are what a party seeking relief must prove before the High Court can intervene.Having so said and contrary to the DPP’s assertion, the present petition largely rotates around the issue whether the impugned SLAA and specifically the cited sections are unconstitutional. In addition, there is also the question whether the process leading to the enactment of SLAA has met the constitutional threshold for passage of any legislation. In our collective mind, those issues do not require anything more than this Court’s interpretation using the principles elsewhere set out above. The issue of threats to the enjoyment of a fundamental right need not, in the circumstances, require a real and live case for this Court to intervene.118. In the circumstances we are satisfied that this petition raises issues that are justiciable and ripe for determination by this Court.”

86. In the case before me, the Communication Authority of Kenya’s (CA)’s decision of 22nd March,2023 censured six TV stations (Citizen TV, NTV, K24, KBC, TV47, and Ebru TV) for covering opposition demonstrations on 20th March,2023. In the censure CA “issued notices to the identified broadcasters to take immediate remedial action” indicating that “failure to adhere in to the outlined obligations shall be acting in breach of license conditions which shall attract liability under relevant provisions of the law including revocation of broadcast licenses or broadcast frequencies”.

87. Demanding the media houses “to take immediate remedial action” followed by a threat to attract liability under relevant provisions of the law including revocation of broadcast licenses or broadcast frequencies” amounts to a threat which will culminate into a sanction. Given that the threat has its foundation in a Code that is not in conformity with the Constitution amounts to a very fundamental violation of the Interested Parties’ media freedom right. It is my finding that the petition raises issues that are justiciable and ripe for determination by this Court.

Whether The Application Meets The Standards Of A Merit Analysis 88. This court is aligned to the fact that the scope of judicial review has now expanded beyond the common law principles and the Law Reform Act and Order 53 of the Civil Procedure Rules. It has now been entrenched under Article 23 of the Constitution as well as the Fair Administrative Actions Act. Recently, the Supreme Court in Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16 June 2023) (Judgment) held at paragraph 85 that:“It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se"

89. The Exparte Applicants have approached this court under the provisions of among others Articles 33,34 of the Constitution of Kenya, 2010, Sections 9 and 11 of the Fair Administrative Actions Act, Section 8 & 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules.

90. In Republic v Kenya Revenue Authority Ex-parte Stanley Mombo Amuti (2018) eKLR, Sunchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others SC Petition No 14 Consolidated with 14A, 14B, & 14C of 2014 [2014] eKLR the Court held that a mere recital of the provisions of the Constitution without more cannot elevate a regular judicial review suit into a constitutional and human rights case. A party who invites the court to determine whether or not a right has been violated and or been infringed has to go beyond the mere mention of the Articles of the Constitution or the Sections of the Law they are relying on in the heading of their suit.

91. A litigant who wants the judicial review court to do substantive or a merit analysis of their case must demonstrate how the right was threatened or violated with precision so as to enable the Respondent to counter the allegations within Article 24 of the Constitution of Kenya. The issues for determination must bear the question of whether the concerned right has been violated or not.

92. Just like in other cases, the burden of proof rests on he who alleges that there is a violation within the standards of the constitutional rights litigation. The litigant must articulate and canvass its case in such a manner that will allow the court to determine the violation question with a view to arriving at an informed decision that the litigant has suffered harm, prejudice or damage.

93. In Consumer Federation of Kenya v Toyota Motors Corporation & 4 others (Petition 455 of 2018) [2022] KEHC 15459 (KLR)) the high court observed that,“92. Likewise, the court in the case of Meme v Republic [2004] eKLR, restated the position in the Anarita Karimi Case (supra) stated as follows:-"Where a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important that he should set out with reasonable degree of precision that of which he complains, the provisions said to have been infringed and the manner in which they are alleged to have been infringed and that the Applicant's instant application had not fully complied with the basic test of constitutional references, as it was founded on generalized complaints without any focus on fact, law or Constitution, hence it had nothing to do with the constitutional rights of the appellant.93. My interpretation of the above provision is that for a constitutional petition to be sustainable a party must by way of evidence demonstrate how its rights have been violated. It therefore follows that the mere citing of constitutional provisions is not enough."

94. The Applicant who is inviting or expecting the court to carry out a merit analysis must drive the court towards granting a relief within the framework of Article 23 of the Constitution or Section 11 of the Fair Administrative Action Act. The merit analysis must not be done in vain.

95. The applicant must demonstrate through evidence that the Respondent has threatened, infringed or violated the concerned rights. I find that the Ex parte applicants have fulfilled the foregoing minimum standards that would call for a merit analysis and I so hold.

96. The Fair Administrative Action Act looks at the failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision and not the merits of the case. Judicial review focuses on finding out whether the impugned decision or act complained of is tainted with illegality, irrationality and procedural impropriety. In order to persuade the court to go beyond this scope, a litigant has to satisfy the court that its case falls within the exceptions as enunciated in The Edwin Dande Case (supra).

97. In order to satisfy myself that the Applicants’ case is one that allows this court to get into a substantive or a merit analysis I have also been guided by the rival pleadings, The issues for Determination, The reliefs sought, The contents of the impugned Letter, The legality of the 2009 Regulations, the limitation of the right under Article 24 of The Constitution. The Application invokes and engages in an in-depth analysis of the Bill of rights, international instruments and even challenges the Constitutionality of the Code.

98. The statutory tribunal lacks the Constitutional backing to allow it to engage in statutory and Constitutional interpretation of the law terrain and or discourse. Am satisfied that the Applicants have satisfied the court that it qualifies as such.

Whether The Honorable Court Has The Jurisdiction To Determine The Instant Dispute. 99. The court decided to deal with the issue of jurisdiction after the merit analysis issue for reasons that become apparent below. The instant application relates to an advisory issued by the Respondent to Six (6) Television (TV) Stations on 22nd March, 2023 that was anchored on Section 46A(c) and (k) of the Kenya Information and Communications Act, 1998 (hereinafter referred to as "the KICA") and Regulation 19(1)(c) of the Kenya Information and Communications Broadcasting Regulations, 2009.

100. Section 102A(c), of The Kenya Information and Communications Act 1998 provides an avenue for the resolution of disputes arising from a dissatisfaction with any action taken or omission by any person under the Act. It provides, "A person aggrieved by any action taken, any omission made or any decision made by any person under this Act."

101. The Respondent in Chiloba’s affidavit deponed at paragraph 13 that the advisory by the Respondent amounts to an action as contemplated under Section 102A(c) of the KICA.This is an admission that the advisory was an action and it must be processed through the Fair Administrative Action Act lens to check on its legality.

102. According to the Respondent, the first instance forum for the resolution of the instant application is the Communications and Multimedia Appeals Tribunal contemplated by Section 102A(c) of the KICA.

103. The Respondent relies on the Supreme Court decision of Samuel Kamau Macharia & Another V Kenya Commercial Bank Limited & 2 [2012] eKLR where it was held as follows: “... a court can only exercise jurisdiction that has been donated to it by either the constitution or legislation or both”.

104. The Respondent is asking the court to down its tools and exercise deference to the Communications and Multi-Media Appeals Tribunal (CAMAT) for the resolution of the dispute at hand.

105. The Respondent argues that this Court's jurisdiction, as provided under Section 102G of KICA, on the controversy at hand is limited to appeals on the decision of CAMAT after it has considered the dispute as a first instance forum. According to the Respondent, this court lacks jurisdiction to determine the suit.

106. In the case of R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA), the Court held:“while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricism of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies.”

107. As the Court of Appeal acknowledged in the Shikara Limited Case, the High Court may, in exceptional circumstances, find that the exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake.

108. In the case of Krystalline Salt Limited v Kenya Revenue Authority (2019) eKLR the court expressed its view on the definition of “exceptional circumstances” as follows:“What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/ or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile. The Fair Administrative Action Act does not define ‘exceptional circumstances’. However, this court interprets exceptional circumstances to mean circumstances that are out of the ordinary and that render it inappropriate for the court to require an applicant first to pursue the available internal remedies. The circumstances must in other words be such as to require the immediate intervention of the court rather than to resort to the applicable internal remedy.”

109. The jurisdiction of this court stems from Article 165 (3) of the Constitution, which provides that: (3) Subject to clause (5), the High Court shall have- (b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened; (c) … (d) jurisdiction to hear any question respecting the interpretation of this Constitution including The Determination of- (i) the question whether any law is inconsistent with or in contravention of this constitution. (Emphasis added).

110. Section 102A(c) of the KICA establishes an Appeals Tribunal for the purpose of arbitrating in cases where disputes arise between the parties under this Act and such matters as may be referred to it by the Minister.

111. The nature of the reliefs sought are judicial review orders which flow from Article 23 of The Constitution.

112. The Appeals Tribunal cannot usurp the powers of the High Court. It has no power to interpret the provisions of the Constitution.

113. This court has identified excerpts that have helped it satisfy itself that the issues before it calls for the interpretation of the Bill of rights.

114. CA’s decision violates the rules of natural justice under Articles 47 and 50 and section 4 of the Fair Administrative Action Act. None of the six media houses was heard on the decision to censure them.

115. CA’s decision is informed by a material error of law on two fronts. First, the cited portion (section 10. 2.1) of the Programming Code does not say what CA claims it says. Secondly, the Code has expired and has no legal effect under section 46H(2)(b) of the Kenya Information and Communications Act, 2009 and section 11(1) and (4) of the Statutory Instruments Act, 2013. Section 46H(2)(b) of KICA requires the CA to review the Programming Code at least once every two years. CA last reviewed the Programming Code in September 2019. The Code expired in September 2021, over 18 months ago. Section 11(1) and (4) of the Statutory Instruments Act, 2013 require all statutory instruments to be laid before Parliament lest they expire. CA has never laid the Programming Code before Parliament.

116. Article 34(2) prohibits the State from exercising “control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium”; or “penalize any person for any opinion or view or the content of any broadcast, publication, or dissemination”.

117. The Communications Authority of Kenya has an obligation under Article 21(1) to observe, respect, protect, promote and fulfil the right to freedom of expression secured by Article 33(1) which includes: (a) freedom to seek, receive or impart information or ideas; (b) freedom of artistic creativity; and (c) academic freedom and freedom of scientific research.

118. First, having never been gazetted, the Programming Code is not “a law” that can limit any freedom under Article 24. Section 46H(2)(b) of the Kenya Information and Communications Act, 2009 required the Code to be reviewed every two years. That never happened hence the expiry. Besides, section 11(1) and (4) of the Statutory Instruments Act, 2013 requiring for all statutory instruments to be laid before Parliament lest they expire, CA never laid the Programming Code before Parliament before it expired.

119. There is an issue of whether the censure was not concerned with any of the four legitimate speech limitations under Article 33(2): propaganda for war; incitement to violence; hate speech; or advocacy of hatred. Instead, contrary to Article 34(2) the CA attempted through the censure to “exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium”; or “penalize any person for any opinion or view or the content of any broadcast, publication, or dissemination”.

120. The Applicants are inviting the court to consider Article 24(1) which requires a proportionality analysis that inter alia takes into account the nature of the right or fundamental freedom; the importance of the purpose of the limitation; the nature and extent of the limitation; the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the enjoyment of the rights and fundamental freedoms of others; and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.

121. CA’s decision violates the rules of natural justice under Articles 47 and 50 and section 4 of the FAA. Section 21(1) of the Statutory Instruments Act 2019 requires every statutory instrument to be published in the Gazette. Under section 23(1) of the Statutory Instruments Act, 2013, statutory instruments come into force on the date specified in the statutory instrument or on publication in the Kenya Gazette. Further, under Section 11(4), all regulation-making authorities must submit copies of all statutory instruments for tabling before the National Assembly.

122. Article 33 of the Constitution guarantees every person the right to freedom of expression, which includes: freedom to seek, receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research. Freedom and independence of the media is guaranteed but does not extend to: propaganda for war; incitement to violence; hate speech; or advocacy of hatred.

123. Article 24 is in mandatory terms that the purported limitation must be justifiable in an open and democratic society based on human dignity, equality and freedom. Further, Article 24 (3) obligates the state or person seeking to justify a particular limitation to demonstrate to the Court or tribunal or other authority that the requirements of Article 24 have been satisfied.

124. Article 23(3) of the Constitution entitles the Court to grant an order of judicial review in proceedings brought under Article 22. Section 11 of the FAA empowers the present-day judicial review courts to grant any order that is just and equitable, including an order: declaring the rights of the parties in respect of any matter to which the administrative action relates; prohibiting the administrator from acting in a particular manner; or compelling the performance by an administrator of a public duty owed in law and in respect of which the applicant has a legally enforceable right.

125. The Appeals Tribunal lacks the jurisdiction and the Constitutional power to attend to the foregoing weighty Constitutional matters that the parties herein have raised.

126. Asking the parties to seek redress before the Appeals Tribunal is a tall order. Nothing enforceable or binding will flow from the findings of the Appeals tribunal. Allowing the Appeals Tribunal to adjudicate over the suit will lead to an illegal process that will culminate in an illegality. This court will not allow such a process to be initiated in the name of upholding the doctrine of exhaustion. I find that the doctrine of exhaustion will get abused if matters that relate to the interpretation of the Bill of Rights is left to statutory tribunals.

127. There was no need for the Applicants to seek leave to have the dispute placed before a Tribunal that has no jurisdiction to generate judicial review reliefs that are guaranteed under Article 23 of The Constitution or under Section 11 of the Fair Administrative Action Act.

128. In judicial review matters where the court satisfies itself that the case fits into the remit of merit analysis, it is my view that there is no need to seek leave of the court to exempt a litigant from the doctrine of exhaustion under Article 9 of the Fair Administrative Action Act.

129. It is my finding that the argument by the Respondent that the Applicant has not exhausted the doctrine of exhaustion as misplaced.

Assessing The Constitutionality Of Rights Limitations 130. Through the provisions of the Constitution, the people of Kenya have provided that the rights and fundamental freedoms guaranteed under the Constitution, with the exception of four rights set out in Article 25, are not absolute. They are subject to limitation, but only to the extent and in the circumstances set out in Article 24 of the Constitution. Article 24 is in the following terms:“24 (1).A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including––a.the nature of the right or fundamental freedom;b.the importance of the purpose of the limitation;c.the nature and extent of the limitation;d.the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; ande.the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.(2)Despite clause (1), a provision in legislation limiting a right or fundamental freedom—a.in the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;b.shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; andc.shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.(3)The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.”

131. Article 25 expressly provides that the rights set out there in shall not be limited. It states as follows:“Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited–a.freedom from torture and cruel, inhuman or degrading treatment or punishment;b.freedom from slavery or servitude;c.the right to a fair trial; andd.the right to an order of habeas corpus.

132. In considering whether the impugned provisions limit fundamental rights and freedoms as alleged by the petitioners and if so, whether the limitations meet constitutional standards, the court is also be guided by principles that have emerged from judicial decisions.

133. In the case of S vs Zuma & Others (1995)2 SA 642(CC)the Court held that a party alleging violation of a constitutional right or freedom must demonstrate that the exercise of a fundamental right has been impaired, infringed or limited. Once a limitation has been demonstrated, then the party which would benefit from the limitation must demonstrate a justification for the limitation. As in this case, the State, in demonstrating that the limitation is justifiable, must demonstrate that the societal need for the limitation of the right outweighs the individual’s right to enjoy the right or freedom in question.

134. The test for determining the justifiability of a rights limitation was enunciated by the Supreme Court of Canada in the case of R vs Oakes (1986) ISCR 103 to which CIC has referred the Court. The first test requires that the limitation be one that is prescribed by law. It must be part of a statute, and must be clear and accessible to citizens so that they are clear on what is prohibited.

135. Secondly, the objective of the law must be pressing and substantial, that is it must be important to society: see R vs Big Drug Mart Ltd (1985) ISCR 295. The third principle is the principle of proportionality. It asks the question whether the State, in seeking to achieve its objectives, has chosen a proportionate way to achieve the objectives that it seeks to achieve. Put another way, whether the legislation meets the test of proportionality relative to the objects or purpose it seeks to achieve: see R vs Chaulk (1990) 3SCR 1303.

136. If a sufficiently important objective has been established, the means chosen to achieve the objective must pass a proportionality test. They must be rationally connected to the objective sought to be achieved, and must not be arbitrary, unfair or based on irrational considerations. Secondly, they must limit the right or freedom as little as possible, and their effects on the limitation of rights and freedoms are proportional to the objectives.

137. The tests set out above echo the requirements of Article 24 of the Constitution. This Article expresses the manner of considering the constitutionality of a limitation on fundamental rights by requiring that such limitation be reasonable and justifiable in a free and democratic society, and that all relevant factors are taken into account, including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the need to balance the rights and freedoms of an individual against the rights of others, and the relation between the limitation and its purpose, and whether there are less restrictive means to achieve the purpose.

138. In Rangarajan vs. Jagjivan Ram and Others; Union of India and Others vs. Jagvan Ram and Others(1989 SCR (2) 204, 1989 SCC (2) 574 the Supreme Court of India stated that:“There does indeed have to be a compromise between the interest of freedom of expression and social interest. But we cannot simply balance the two interests as if they were of equal weight. Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched. It should be proximate and (have) direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interests. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg.” (Emphasis added)

Whether The Applicants Were Condemned Unheard 139. Article 47 (1) of the Constitution states as follows;“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair”

140. Article 47(2) continues to state as follows;“If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

141. Article 47 has now been effectuated by the Fair Administrative Action Act, 2015 under which section 4(3) which provides as follows:(3)Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-a.prior and adequate notice of the nature and reasons for the proposed administrative action;b.an opportunity to be heard and to make representations in that regard;c.notice of a right to a review or internal appeal against an administrative decision, where applicable;d.a statement of reasons pursuant to section 6;e.notice of the right to legal representation where applicable;f.notice of the right to cross examine or where applicable; or;g.information, materials and evidence to be relied upon in making the decision or taking the administrative action.

142. It is my finding that the letter dated 22nd March,2023 is illegal since it does not accord with Article 47 as effectuated by the Fair Administrative Action Act, 2015 under section 4(3).

143. The indication by the Respondent that it has completed the review of the broadcast coverage of the demonstration that were held 20th March,2023 implies that there was an administrative action that was carried out and completed unilaterally. What was so hard for the Respondent to summon the media houses to show cause why they should not be sanctioned?

144. As a result of the flawed administrative exercise, the Interested Parties remain in the dark and without any information, materials and evidence that the Respondent relied on in making the decision or taking the administrative action.

145. In concluding that the Applicants acted in a manner that violated the programming Code the Respondent must have conducted a merit analysis and weighed evidence against the provisions of the impugned Code before arriving at the offensive decision unilaterally. The Respondent denied the Applicants the right to be heard.

146. The notice that failure to adhere to the outlined obligations shall be acting in breach of license conditions, which shall attract liability under relevant provisions of the law, including revocation of broadcast license and/or broadcast frequencies amounts to a fundamental threat to the existence and the operations of the Interested parties and is illegal since it does not accord with Article 47. It presented an uncalled-for censure and a threat to the six media houses’ freedom of expression.

147. The status of fair administrative action in Kenya’s constitutional and jurisprudential framework was discussed by Onguto, J in Kenya Human Rights Commission vs Non-Governmental Organizations Co-ordination Board [2016] eKLR a case in which the powers of the same Respondent were in question, in which the learned Judge expressed himself inter alia as follows:“As to what constitutes fair administrative action, the court in President of the Republic of South Africa and Others vs. South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1, stated thus:“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…” [Emphasis supplied].

148. Thus, a person whose interests and rights are likely to be affected by an administrative action has a reasonable expectation that they will be given a hearing before any adverse action is taken as well as reasons for the adverse administrative action as provided under Article 47 (2) of the Constitution. Generally, one expects that all the precepts of natural justices are to be observed before a decision affecting his substantive rights or interest is reached. It is however also clear that in exercising its powers to superintend bodies and tribunals with a view to ensuring that Article 47 is promoted the court is not limited to the traditional judicial review grounds. The Fair Administrative Action Act, 2015 must be viewed in that light.

149. Article 50(1) of the Constitution makes provision for fair hearing. The Article is to the effect that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

150. The right to fair hearing is evidently closely intertwined with fair administrative action. The often-cited case of Ridge vs. Baldwin [1964] AC 40 restated the right to fair hearing as a rule of universal application in the case of administrative acts or decisions affecting rights. In his speech to the House of Lords in 1911, Lord Loreburn aptly put it as a ‘duty lying upon everyone who decides anything’ that may adversely affect legal rights.

151. Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heard states that:“The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adopted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”

152. I would state that it now appears that the court, effectively has a duty to look into not only the merits and legality of the decision made due to the requirement of “reasonable” action under Article 47, but also the process and procedure adopted due to the requirement of following all precepts of natural justice under both Articles 47 and 50 (1) of the Constitution. The court proceeding under Article 47 of the Constitution is expected not only to pore over the process but also ensure that in substance there is justice to the petitioner. The traditional common law principles of judicial review are, in other words, not the only decisive factor.

153. It may sound like stretching the precincts of traditional judicial review, but clearly by the Constitution providing for a “reasonable” administrative action and also enjoining decision makers to provide reasons, the constitutional scheme was to entrench the blazing trend where courts were already going into merits of decisions by innovatively applying such principles like proportionality and legitimate expectation. I must however confess that the line appears pretty thin and, perhaps, more discourse is required on the subject of traditional judicial review and the now entrenched substantive constitutional judicial review.”

154. Article 50(1) provides that every person has a right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or an independent and impartial tribunal or body.

155. The twin rules of natural Justice that no man shall be a Judge in his own cause (Nemo Judex in causa sua) and that no man shall be condemned unheard (audi alteram partem) are cardinal principles of law which are fundamental in our Justice system. They are basically an embodiment of the duty to act fairly. However, there is no legal definition or standard regarding what constitutes procedural fairness and each case must be decided on its own merits.

156. It is my finding that the Respondents letter dated 22nd March,2022 is an embodiment of procedural impropriety. It is a censure that was generated unfairly on the part of the Respondent as the decision-making authority for the non-observance of the Rules of Natural Justice towards one to be affected by the decision and in particular the Interested Parties and I so hold.

157. It is my finding that the Respondent’s letter was a culmination of an illegal and an unfair administrative process. It must be quashed which I hereby do.

158. In the case of Pastoli Vs. Kabale District Local Government Council and Others [2008] 2 EA 300 it was held:“In order to succeed in an application for judicial review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety ...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards......Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.”

159. It is common knowledge that judicial review jurisdiction is supervisory by nature; it is the channel through which judicial supervision over administrative action is exerted; and, generally speaking, it is meant to cast doubt on any decision that is made in violation of the law. Lord Diplock’s classic dictum in Council of Civil Service Unions versus Minister for the Civil Service (1985) 1 AC 374 provides a useful guide on what an unlawful decision entails.

160. The learned judge spoke of these grounds as follows:“…I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.”

161. It is my finding that the Respondent failed to observe basic rules of natural justice and failed to act with procedural fairness towards the media houses who will be affected by the decision.

Whether The Applicants Are Entitled To An Order Of Prohibition 162. In Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [20221 eKLR, the Court rendered itself thus:“The Order of "Prohibition" issues where there are assumptions of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi’s Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction.""Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."

163. In seeking the prayer for an order of prohibition, the Ex parte Applicant relied on the case of Republic v Principal Kadhi, Mombasa & Another Ex-parte Alibhai Adamali Dar & 2 others [2022] which provided that:“The Order of "Prohibition" issues where there are assumption of unlawful jurisdiction or excess of jurisdiction. It's an order from the High Court directed to an inferior tribunal or body as in this case the Kadhi's Court. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction." (... ..) "Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself."

164. The Communication Authority of Kenya (CA) in its decision of 22nd March,2023 to censure six TV stations (Citizen TV, NTV, K24, KBC, TV47, and Ebru TV) for covering opposition demonstrations on 20th March,2023 issued notices to the identified broadcasters “to take immediate remedial action”.

165. It is my finding that the Applicants have made out a case that calls for the grant of an order of prohibition and the same is issued against the Respondent prohibiting and/or forbidding and preventing it from demanding the media houses “to take immediate remedial action” since the same was illegally issued.

Costs: 166. The general rule flowing from Section 27 of the Civil Procedure Act, Cap 21, Laws of Kenya is that costs should follow the event. That is to say, the successful party should be awarded its costs. This general rule is elaborated by Justice Kuloba in his book, Judicial Hints on Civil Procedure, Vol. 1 at p. 99 as follows:“The first question is what is meant by "the event" in the proviso to subsection (1) of this section? The words "the event" mean the result of all the proceedings incidental to the litigation. The event is the result of the entire litigation. .... Thus, the expression "the costs shall follow the event" means that the party who on the whole succeeds in the action gets the general costs of the action. (Emphasis provided).This is a public interest suit and every party shall bear its costs.

Disposition:The Application dated 5th April,2023 has merits and the same is allowed.At the time this suit was filed, the Statutory instruments Act had not been repealed by The Finance Act 2023.

Orders:1. An order of Certiorari is hereby issued to bring to this court and to quash the Communication Authority’s decision of 22nd March,2023 to censure six TV stations (Citizen TV, NTV, K24, KBC, TV47, and Ebru TV) for covering opposition demonstrations on 20th March,2023. 2.A declaration is hereby issued that:i.Regulation 19(a), (b), (c), and (d) of the Kenya Information and Communications (Broadcasting) Regulations, 2009 unconstitutionally limits the freedom of expression, media, and information in vague and overbroad terms contrary to Articles 33, 34, and 35 of the Constitution; andii.The Programming Code for Broadcasting Services in Kenya, 2019 has expired and is of no legal effect under 46H(2)(b) of the Kenya Information and Communications Act, 2009 and section 11(1) and (4) of the Statutory Instruments Act, 2013 as a result of which Clause 10. 2.1 of the Programming Code does not sustain the CA’s decision.3. An order of Mandamus is hereby issued directing the CA to review the Programming Code for Broadcasting Services in Kenya, 2019 under section 46H(2)(b) of the Kenya Information and Communications Act, 2009. The order is suspended for 12 months.4. Given that the matter is a public interest suit, I shall not issue any orders as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19THOCTOBer 2023. ........................JOHN CHIGITI (SC)JUDGE