https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12900

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEAL NO. E1136 OF 2024** **TV AFRICA HOLDINGS LIMITED........................1ST APPELLANT** **SOUTHRIDGE HOLDINGS LIMITED...................2ND APPELLANT** **VERSUS** **COMMUNICATIONS AUTHORITY OF KENYA..........RESPONDENT** **JUDGMENT** **Introduction** 1. This appeal arises from the judgment of the Communications and Multimedia Appeals Tribunal (hereinafter "the Tribunal") rendered on **6th September 2024** in **Appeal No. E003 of 2023**, wherein the Tribunal dismissed the Appellants' appeal challenging the decision of the Respondent, the Communications Authority of Kenya (hereinafter "the Authority"), revoking the assignment of certain broadcasting frequencies previously granted to the 2nd Appellant. 2. At the heart of the dispute is whether the Respondent acted lawfully and fairly in revoking the frequency assignments after the 2nd Appellant failed to obtain a broadcasting licence and operationalize the assigned frequencies within the stipulated period, and whether the Tribunal erred in upholding that decision. 3. The appeal also raises important questions concerning the relationship between a broadcasting licence and a frequency assignment under the Kenya Information and Communications Act, the extent of procedural fairness required before revocation of regulatory privileges, the doctrine of locus standi, and whether a parent company may rely upon its own broadcasting licence to satisfy statutory obligations imposed upon its subsidiary without the approval of the regulator. 4. The appeal therefore calls upon this Court to balance two competing considerations. On one hand is the constitutional imperative that administrative bodies must exercise statutory power fairly, reasonably and in accordance with Article 47 of the Constitution. On the other is the equally important public interest in ensuring that scarce national resources such as the radio frequency spectrum are managed efficiently and strictly in accordance with the statutory licensing framework established under the Kenya Information and Communications Act. **Background** 1. The material facts giving rise to this appeal are largely undisputed. The 1st Appellant, **TV Africa Holdings Limited**, is a company incorporated in Kenya. It holds a broadcasting licence issued by the Respondent under the Kenya Information and Communications Act. The 2nd Appellant, **Southridge Holdings Limited**, is a separate limited liability company in which the 1st Appellant holds shares. The Appellants describe the 2nd Appellant as a subsidiary of the 1st Appellant. 2. The **2nd Appellant**, while acting in its own corporate name and capacity, applied to the Respondent vide letter dated 1/3/21 for assignment of broadcasting frequencies in the following locations: * Lamu – **89.5 MHz** * Kwale – **90.2 MHz** * Narok – **93.8 MHz** * Lodwar – **93.3 MHz** 1. Upon considering the application, the Respondent issued a letter dated **1st March 2021**, which was signed on **5th May 2021**, conditionally assigning the requested frequencies to the **2nd Appellant**. The assignment was not absolute. It was expressly made subject to several conditions, among them that: 2. ***The 2nd Appellant was required to obtain the necessary broadcasting licence;*** 3. ***The assigned frequencies were to be utilized within twelve months;*** 4. ***The stations were to be operationalized within twelve months of obtaining the broadcasting licence; and*** 5. ***Failure to comply with the stipulated conditions would expose the assignment to be revoked.*** 6. The 2nd Appellant accepted the assignment and paid the requisite assignment fees and informed the respondent via letter dated 17/8/23. It is common ground that despite payment of the prescribed fees, the 2nd Appellant did **not** obtain a broadcasting licence as required by the assignment letter. It is equally undisputed that the assigned frequencies were never operationalized within the prescribed period. 7. After the lapse of the compliance period, the Respondent wrote to the 2nd Appellant on **5th July 2023** requiring it to regularize its position and comply with the conditions governing the assignment. The Respondent subsequently issued a further reminders dated **17th August 2023** and**31st August 2023**, once again requiring compliance with the conditions of assignment. 8. Meanwhile, by a letter dated **17th August 2023**, the 2nd Appellant acknowledged that it had not operationalized the assigned frequencies and requested the Respondent to grant it an extension of one year within which to implement the project. The Respondent considered the request but declined to extend the compliance period. 9. Following continued non-compliance, the Respondent, by its letter dated **2nd November 2023**, revoked the frequency assignments previously granted to the 2nd Appellant. 10. Aggrieved by that decision, the Appellants lodged **Appeal No. E003 of 2023** before the Communications and Multimedia Appeals Tribunal. **Proceedings before the Tribunal** 1. Before the Tribunal, the Appellants challenged the Respondent's decision principally on the grounds that the revocation was unlawful, unreasonable and procedurally unfair. They contended that the Respondent had violated their constitutional right to fair administrative action by revoking the assigned frequencies without first according them an adequate opportunity to be heard. 2. The Appellants further asserted that the 2nd Appellant had subsequently been absorbed into the 1st Appellant and that since the 1st Appellant already held a valid broadcasting licence, there was no necessity for the 2nd Appellant to obtain a separate broadcasting licence. 3. The Respondent opposed the appeal and maintained that the assignment letter imposed clear conditions which the 2nd Appellant had failed to satisfy. It was the Respondent's position that the 2nd Appellant remained a separate legal entity from the 1st Appellant and that no approval had ever been sought or granted permitting the 1st Appellant's broadcasting licence to be utilized in place of one to be obtained by the 2nd Appellant. 4. The Respondent further maintained that the Appellants had been given ample opportunity to comply with the conditions of assignment but had failed to do so. Upon considering the evidence and submissions, the Tribunal dismissed the appeal. The Tribunal found, inter alia, that: 5. ***The 2nd appellant had been granted sufficient opportunity between 5th may 2021 and 2nd november 2023 to comply with the conditions attached to the frequency assignment;*** 6. ***Despite that opportunity, the 2nd appellant neither obtained the requisite broadcasting licence nor operationalized the assigned frequencies;*** 7. ***The respondent lawfully exercised its statutory mandate in revoking the frequencies after the appellants failed to comply with the stipulated conditions; and*** 8. ***The 1st appellant was not privy to the assignment between the respondent and the 2nd appellant and therefore lacked the requisite standing to seek relief in respect thereof.*** 9. Dissatisfied with those findings, the Appellants lodged the present appeal. **The Appeal** 1. The Memorandum of Appeal dated **3rd October 2024** raises five grounds of appeal, namely that the Tribunal erred in law and fact by: 2. ***Finding that the 1st Appellant lacked locus standi to institute the proceedings before the Tribunal;*** 3. ***Failing to find that revocation of the assigned frequencies without according the 1st Appellant an opportunity to be heard violated its constitutional right to fair administrative action;*** 4. ***Failing to find that the Respondent breached Article 47 of the Constitution and sections 4(3)(b) and 4(3)(a) of the Fair Administrative Action Act by failing to accord the Appellants an opportunity to present their case, attend proceedings and cross-examine witnesses before revoking the frequencies;*** 5. ***Failing to find that the Respondent wrongly insisted that the 2nd Appellant obtain a broadcasting licence notwithstanding that the 1st Appellant had allegedly absorbed the 2nd Appellant and already possessed a valid broadcasting licence; and*** 6. ***Failing to find that the Appellants had proved breach of their constitutional right to lawful, reasonable and procedurally fair administrative action.*** 7. On the basis of those grounds, the Appellants pray that this Court: allows the appeal; declares the Respondent's letter dated **2nd November 2023** null and void; sets aside the Respondent's decision revoking the assigned frequencies; and grants such further relief as the Court may deem just. **Parties' Submissions** 1. Learned counsel for the Appellants submitted that the Tribunal failed to appreciate that the 1st Appellant had a sufficient legal interest in the assigned frequencies by virtue of its shareholding in the 2nd Appellant and its status as the holder of a broadcasting licence. Counsel argued that the Tribunal adopted an unduly restrictive approach to the question of locus standi contrary to Articles 22, 47 and 258 of the Constitution. 2. Counsel further submitted that the Respondent's decision offended Article 47 of the Constitution and the Fair Administrative Action Act because the Appellants were not afforded a proper hearing before the impugned decision was made. It was contended that the Respondent ought to have invited the Appellants to appear before it, make representations, and explain the circumstances that had delayed operationalization of the assigned frequencies before taking the drastic step of revocation. 3. The Appellants also argued that the Tribunal failed to appreciate that the 2nd Appellant had effectively been absorbed into the 1st Appellant and that, as a consequence, there was no legal necessity for the 2nd Appellant to obtain a separate broadcasting licence. According to counsel, the Respondent acted unreasonably by insisting upon compliance with a condition that had, in their view, been overtaken by events. The 1st Appellant claimed that since it was copied in a letter sent to the 2nd appellant then it had the locus to sue since it had an interest in the matter. 4. The Respondent, on its part, supported the decision of the Tribunal. Counsel submitted that the frequency assignment was granted exclusively to the 2nd Appellant subject to express conditions that were never fulfilled. It was argued that the assignment letter imposed an unequivocal obligation upon the 2nd Appellant to obtain its own broadcasting licence and to operationalize the assigned frequencies within the stipulated timelines. 5. The Respondent further submitted that the 1st and 2nd Appellants remained distinct legal entities and that no evidence was placed before either the Authority or the Tribunal demonstrating that the Respondent had approved any merger, transfer, novation, or substitution of the licence holder. Counsel maintained that the 1st Appellant could not unilaterally extend the benefit of its broadcasting licence to another corporate entity without the regulator's approval. 6. Regarding procedural fairness, the Respondent submitted that the correspondence exchanged between the parties demonstrated that the 2nd Appellant was repeatedly notified of its non-compliance, afforded ample opportunity to regularize its position, and even had its request for extension considered before the impugned revocation was undertaken. It was therefore contended that the requirements of Article 47 of the Constitution and the Fair Administrative Action Act were fully satisfied. **Duty of the First Appellate Court** 1. This being a first appeal from the decision of the Communications and Multimedia Appeals Tribunal, this Court is under a duty to reconsider the evidence placed before the Tribunal, evaluate it independently and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 2. The principles governing that duty are well settled. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the former Court of Appeal for East Africa held that a first appellate court must reconsider the evidence, evaluate it afresh and draw its own conclusions, while making due allowance for the fact that it did not have the advantage enjoyed by the trial court of seeing and hearing the witnesses. 3. The same principle has consistently been reiterated by the Court of Appeal in Peters v Sunday Post Ltd [1958] EA 424. An appellate court is entitled to review the evidence and reach its own conclusions, but should exercise caution before interfering with findings of fact unless they are based on no evidence, are founded upon a misapprehension of the evidence, or the Tribunal is shown to have acted on wrong principles of law. 4. This Court must, however, distinguish its appellate function from the technical and regulatory functions entrusted by Parliament to the Authority and the Tribunal. The Court will interfere where there is an error of law, a material misapprehension of the evidence, failure to take into account a relevant consideration, reliance on an irrelevant consideration, procedural unfairness, excess of jurisdiction, irrationality, or a conclusion unsupported by the record. It will not substitute its own technical assessment for that of the regulator merely because another outcome might have been possible. 5. I shall apply those principles to the grounds of appeal before the Court. **Applicable Constitutional and Statutory Framework** 1. Having carefully considered the record of appeal, the judgment of the Tribunal, the Memorandum of Appeal, the rival submissions of counsel and the applicable law, it is evident that this appeal is anchored upon the interpretation of the Constitution, the Kenya Information and Communications Act, Cap. 411A, the Fair Administrative Action Act, No. 4 of 2015, and the legal principles governing regulation of the broadcasting sector. 2. Before considering the individual grounds of appeal, it is necessary to outline the constitutional and statutory framework governing the dispute, including the statutory basis of the Tribunal's jurisdiction and the Authority's powers in relation to frequency assignments. 3. Section 102F of the Kenya Information and Communications Act (KICA) provides for appeals to the Tribunal against decisions of the Authority. Under section 102F(2), any person aggrieved by an action or decision of the Authority may appeal to the Tribunal within the prescribed period. Section 102F(3) empowers the Tribunal, upon an appeal, to confirm, set aside or vary the decision in question, exercise powers which could have been exercised by the Authority, or make such other order as it considers necessary. A further appeal to this Court lies under section 102G against a decision or order of the Tribunal. 4. KICA also empowers the Authority to impose conditions on assigned frequencies. Under the Kenya Information and Communications (Radio Communications and Frequency Spectrum) Regulations, 2010, the Authority may assign frequencies subject to prescribed technical and operating parameters, and regulation 10(3) permits the recall of frequency assignments that have not been utilised within the period specified in the licence. The statutory and regulatory framework therefore contemplates that frequency assignments are conditional regulatory authorisations and not proprietary rights. Those were the provisions applicable to the impugned decision. **A. The Constitutional Framework** **Article 47 of the Constitution** 1. The Appellants principally invoke Article 47 of the Constitution, which provides: ***47(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.*** ***47(2) 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.*** 1. Article 47 constitutionalized what had previously existed as common law principles of natural justice and fair administrative action. It transformed procedural fairness from an ordinary legal principle into an enforceable constitutional right. 2. In **Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR**, the Court of Appeal observed that Article 47 marked a transformative development in Kenyan administrative law by elevating every person's entitlement to lawful, reasonable and procedurally fair administrative action into a constitutional guarantee enforceable before the courts. 3. The Court emphasized that every public authority exercising statutory power must ensure that its decisions satisfy the constitutional requirements of legality, rationality and procedural fairness. 4. However, Article 47 does not deprive statutory bodies of their lawful powers. Rather, it regulates **how** those powers are exercised. Consequently, a court reviewing administrative action is not concerned with whether it would have reached a different decision. Its concern is whether the decision-maker acted within its statutory mandate; relevant considerations were taken into account; irrelevant considerations were ignored; due process was observed; and the ultimate decision was rational and lawful. **The Fair Administrative Action Act** 1. **Article 47** was operationalized through the Fair Administrative Action Act, No. 4 of 2015. Section 4(3) provides that where an administrative action is likely to adversely affect rights or fundamental freedoms, the administrator shall give the affected person:- prior and adequate notice of the nature and reasons for the proposed action; an opportunity to be heard and to make representations; notice of a right to review or appeal; a statement of reasons; notice of the right to legal representation where appropriate; notice of the right to cross-examine where applicable; and information, materials and evidence to be relied upon. 2. Section 7 of the Act further empowers the Court to review administrative action where the administrator acted unlawfully, irrationally, unreasonably, procedurally unfairly or in excess of statutory power. 3. The Act therefore codifies the constitutional principles governing lawful administrative decision-making. Nevertheless, procedural fairness is context-specific. It does not prescribe a uniform procedure applicable to every administrative decision. 4. In **Republic v. Kenya Revenue Authority ex parte Yaya Towers Limited** **[2008] eKLR,** the Court of Appeal held that the requirements of procedural fairness depend upon the circumstances of each case and the statutory framework under which the decision is made. The Court cautioned that judicial review is concerned with the legality of the decision-making process rather than the merits of the decision itself. 5. The Court therefore must evaluate whether, in the particular regulatory context presented by this appeal, the Respondent accorded the Appellants the procedural safeguards required by Article 47 and the Fair Administrative Action Act. **B. Kenya Information and Communications Act** 1. The Respondent is established under the Kenya Information and Communications Act (KICA) as the statutory regulator responsible for, inter alia, licensing and regulation of the communications and broadcasting sector in Kenya. The Act vests the Authority with powers to regulate the use of the radio frequency spectrum, grant licences, supervise compliance with licence conditions and ensure efficient utilization of the limited spectrum resource. 2. The radio frequency spectrum is not private property. It constitutes a scarce national resource held in trust for the public and managed by the Authority in accordance with statute. 3. In **Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR**, the Supreme Court described the frequency spectrum as a finite public resource requiring careful regulation in the public interest. 4. The Supreme Court observed that no broadcaster acquires proprietary rights over frequencies outside the regulatory framework established by statute and that continued use of frequencies remains subject to compliance with licensing conditions imposed by the regulator. 5. The Court stated that the Authority has both the statutory duty and constitutional responsibility to ensure equitable, efficient and lawful allocation of the spectrum. 6. Consequently, any entity seeking allocation or continued use of frequencies must strictly comply with the applicable statutory and regulatory requirements. Possession of one does not automatically entitle a person to the other. Likewise, possession of a broadcasting licence by one corporate entity does not automatically satisfy a licensing requirement imposed upon another separate corporate entity. The question whether an authorisation may be transferred or used by another entity is governed by the applicable statute, regulations, licence conditions and the Authority's approval. In particular, the regulatory framework prohibits transfer of assigned frequencies and the rights attached to them without the written consent of the regulator. 1. In the present case, the record contains no evidence that the Authority gave written consent to any transfer of the frequency assignment or agreed that the 1st Appellant's broadcasting licence would satisfy the licensing condition imposed upon the 2nd Appellant. 2. Possession of one does not automatically entitle a person to the other. Likewise, possession of a broadcasting licence by one corporate entity does not automatically satisfy licensing requirements imposed upon another separate legal entity. Whether one licence may lawfully benefit another corporate entity depends entirely upon statutory provisions or express approval by the regulator. 3. It is common ground in this appeal that no such approval was ever sought or granted. **Regulatory Conditions** 1. The assignment letter dated 1st March 2021 constituted the legal instrument governing the parties' relationship. The assignment was expressly conditional. Among the conditions imposed upon the 2nd Appellant were that it: obtain a broadcasting licence; operationalize the assigned frequencies within the stipulated timelines; and comply with all regulatory requirements imposed by the Authority. 2. It is also common ground that the 2nd Appellant accepted those conditions without protest and paid the requisite assignment fees. A party who voluntarily accepts regulatory conditions cannot ordinarily ignore them and later contend that compliance was unnecessary unless those conditions were varied or waived by the competent statutory authority. **C. Corporate Personality** 1. Another important issue concerns the legal relationship between the two Appellants. The Appellants maintain that the 2nd Appellant had subsequently been "absorbed" into the 1st Appellant and that the latter's broadcasting licence therefore sufficed. 2. The law regarding separate corporate personality is well settled. Since **Salomon v Salomon & Co. Ltd [1897] AC 22**, it has been accepted that every incorporated company possesses a legal personality distinct from its shareholders, directors and related companies. 3. Kenyan courts have consistently applied that principle. In **Victor Mabachi & Another v Nurtun Bates Ltd [2013] eKLR**, the Court of Appeal reaffirmed that each incorporated company is a separate legal person with its own rights and obligations irrespective of common ownership. Accordingly, a parent company and its subsidiary remain distinct legal entities unless the law or competent authority provides otherwise. Mere shareholding does not merge the legal personalities of two companies. Neither does it transfer statutory licences from one company to another. Such licences remain personal to the licensee unless lawfully transferred or varied with regulatory approval. **Issues for Determination** 1. Having considered the pleadings, the evidence on record, the judgment of the Tribunal, and the submissions of counsel, the following issues arise for determination: 2. ***Whether the Tribunal erred in holding that the 1st Appellant lacked the requisite locus standi.*** 3. ***Whether the 2nd Appellant was legally exempt from obtaining its own broadcasting licence on account of the alleged absorption into the 1st Appellant.*** 4. ***Whether the Respondent violated Article 47 of the Constitution and the Fair Administrative Action Act in revoking the assigned frequencies.*** 5. ***Whether the Respondent lawfully exercised its statutory mandate in revoking the frequency assignments.*** 6. ***Whether the Tribunal misdirected itself in dismissing the Appellants' appeal****.* I shall now consider each of these issues in turn. **Analysis and Determination** **Whether the Tribunal erred in finding that the 1st Appellant lacked locus standi and whether the 2nd Appellant was exempt from obtaining a broadcasting licence (Grounds 1 and 4)** 1. The first and fourth grounds of appeal are closely intertwined and it is therefore convenient to consider them together. The Appellants contend that the Tribunal erred in holding that the 1st Appellant lacked the requisite locus standi to institute the appeal before it. They further contend that the Tribunal failed to appreciate that the 2nd Appellant had been absorbed into the 1st Appellant and, consequently, that the broadcasting licence held by the 1st Appellant sufficed for purposes of the frequency assignment granted to the 2nd Appellant. 2. The Respondent maintains that the assignment of frequencies was made solely to the 2nd Appellant, that the conditions attached thereto were binding upon it, and that no evidence was tendered demonstrating that the Respondent had approved any merger, transfer, novation or substitution of the assignee or waived the requirement that the 2nd Appellant obtain its own broadcasting licence. 3. Resolution of these grounds requires the Court to examine three distinct but related questions: 4. ***Whether the 1st Appellant possessed sufficient standing to participate in the proceedings before the Tribunal.*** 5. ***Whether the legal relationship between the Appellants altered the obligations imposed upon the 2nd Appellant under the assignment letter.*** 6. ***Whether the Respondent was obliged to recognize the 1st Appellant's broadcasting licence as satisfying the licensing condition imposed upon the 2nd Appellant***. **(a) Whether the 1st Appellant had locus standi** 1. The Tribunal held that the 1st Appellant lacked locus standi because it was not privy to the assignment of the frequencies. The immediate question, however, is not whether the 1st Appellant was a party to the assignment, but whether it was a person aggrieved by the Authority's decision within the meaning of section 102F(2) of KICA. The constitutional provisions on standing reinforce access to justice, but the statutory test governing this appeal to the Tribunal is whether the party was sufficiently affected or aggrieved by the impugned decision. 2. Articles 22 and 258 of the Constitution demonstrate the broad constitutional approach to standing. They do not, however, dispense with the requirement that a litigant demonstrate a sufficient nexus with the dispute. In a statutory appeal under section 102F, the Court must therefore consider whether the claimant is genuinely aggrieved by the decision complained of rather than merely whether it has a general commercial interest. 3. Similarly, the Supreme Court in **Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2015] eKLR** underscored that while standing under the Constitution is generous, it is not limitless. A litigant must establish a nexus between the alleged infringement and the relief sought. 4. In the present case, the record discloses that the 1st Appellant is a shareholder in the 2nd Appellant, authorised the latter to apply for the assignment and holds a broadcasting licence which, according to its case, it intended to use in connection with the operations for which the disputed frequencies were sought. The 1st Appellant was also involved in the correspondence concerning the assignment. Those circumstances establish a sufficient direct commercial and corporate interest in the impugned decision to make it a person aggrieved for purposes of section 102F(2). 5. I therefore find that the 1st Appellant had sufficient standing to challenge the Authority's decision before the Tribunal. I respectfully disagree with the Tribunal's conclusion that the absence of privity to the assignment, by itself, deprived the 1st Appellant of standing. 6. That conclusion on standing must, however, be kept separate from the substantive merits. Standing determines whether a party may invoke the appellate jurisdiction; it does not confer upon that party substantive rights under an assignment to which it was not the assignee. The 1st Appellant's standing therefore does not transform it into the holder of the disputed frequency assignment. 7. Consequently, although I find that the Tribunal adopted an unduly restrictive approach to the question of standing, that error does not, of itself, establish that the Respondent acted unlawfully or that the Appellants are entitled to the reliefs sought. **(b) The legal effect of the assignment letter** 1. The assignment letter dated 1st March 2021, signed on 5th May 2021, constituted the legal instrument through which the Respondent assigned the disputed frequencies. That letter was addressed exclusively to the 2nd Appellant. The application for the frequencies had likewise been made solely by the 2nd Appellant in its own corporate name. 2. There is no dispute that the 1st Appellant neither applied for nor was granted the disputed frequencies. The assignment was expressly conditional upon, among other things, the 2nd Appellant obtaining a broadcasting licence and operationalizing the assigned frequencies within the stipulated period. 3. The language of the assignment letter is clear and unambiguous. The conditions imposed therein were directed at the assignee, namely the 2nd Appellant. It is a settled principle that where the language of a contractual or statutory instrument is plain, the Court must give effect to its ordinary meaning and ought not rewrite the terms agreed upon by the parties. 4. In **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR**, the Court of Appeal held that courts do not rewrite contracts for parties. Where parties have freely entered into an agreement, the court's duty is to enforce the terms as agreed unless they are illegal or contrary to public policy. 5. While the relationship between the parties herein is regulatory rather than purely contractual, the same principle applies to the conditions attached to statutory licences and assignments. Once accepted by the assignee, those conditions become binding unless varied by the competent statutory authority. 6. The evidence shows that the 2nd Appellant accepted the assignment, paid the prescribed fees and proceeded on the basis of the conditions imposed. It did not challenge the requirement that it obtain a broadcasting licence at the time the assignment was made. 7. This conclusion is reinforced by the regulatory framework. The applicable frequency-spectrum regulations treated non-utilisation as a basis for recall of an assignment, while the assignment letter itself expressly warned that failure to comply with its conditions would expose the assignment to revocation. The Authority was therefore not acting outside the regulatory framework when it acted upon prolonged non-utilisation and non-compliance. 8. Indeed, the record contains no evidence that the Appellants sought clarification from the Respondent as to whether the 1st Appellant's broadcasting licence would suffice, nor did they seek a formal variation of the conditions of assignment before the expiry of the compliance period. **(c) Whether the alleged absorption relieved the 2nd Appellant of its obligations** 1. The Appellants' principal argument is that the 2nd Appellant had subsequently been absorbed into the 1st Appellant and that, because the 1st Appellant already possessed a broadcasting licence, the 2nd Appellant no longer required one. With respect, I find no legal or evidential basis for that proposition. 2. First, no documentary evidence was placed before the Tribunal demonstrating that the alleged absorption resulted in the dissolution of the 2nd Appellant or the transfer of its regulatory obligations to the 1st Appellant. The record contains no merger agreement, court-sanctioned amalgamation, instrument of transfer, or other corporate documentation evidencing such a legal transformation. 3. Secondly, and more importantly, there is no evidence that the Respondent, the statutory regulator was notified of the alleged absorption or that it approved any transfer, novation, or substitution of the rights and obligations arising under the assignment letter. 4. Regulatory approvals and licences are not private rights capable of unilateral assignment by the licensee. They exist within a statutory framework designed to ensure that only qualified entities utilize the limited public resource of the radio frequency spectrum. Any change in the identity of the regulated entity or the person entitled to use the assigned frequencies must therefore occur in accordance with the governing statute and with the approval of the regulator. 5. The Supreme Court in **Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR** emphasized that the radio frequency spectrum is a scarce public resource whose allocation and use must be regulated in accordance with the law and in the public interest. The Court stressed that no person acquires an unfettered proprietary right to a frequency outside the statutory licensing regime. 6. Thirdly, the Appellants' argument overlooks the doctrine of separate corporate personality. Since **Salomon v Salomon & Co. Ltd [1897] AC 22**, the law has recognized that each incorporated company is a separate legal person distinct from its shareholders, directors and related companies. 7. That principle has consistently been applied by Kenyan courts. In **Victor Mabachi & Another v Nurtun Bates Ltd [2013] eKLR**, the Court of Appeal reaffirmed that each company has a distinct legal identity and that rights and liabilities belonging to one company cannot, without lawful authority, be treated as belonging to another merely because of common ownership or control. 8. The mere fact that the 1st Appellant is a shareholder in the 2nd Appellant, or that the latter is described as its subsidiary, does not extinguish the separate legal personality of the 2nd Appellant. Each company remained a distinct legal entity, with separate rights and obligations. 9. Consequently, the broadcasting licence issued to the 1st Appellant remained personal to it. It could not automatically be invoked to satisfy the licensing requirements imposed upon the 2nd Appellant in the absence of express statutory authority or approval by the Respondent. 10. To hold otherwise would permit regulated entities to circumvent statutory licensing requirements by internal corporate restructuring without the knowledge or approval of the regulator. Such an outcome would undermine the statutory scheme established under the Kenya Information and Communications Act and compromise the Respondent's ability to effectively regulate the broadcasting sector. The Court cannot sanction such a result. 11. Finally, it is noteworthy that the 2nd Appellant itself appeared to acknowledge that it remained bound by the conditions of assignment. By its letter dated 17th August 2023, it sought an extension of time to operationalize the frequencies rather than asserting that the licensing condition had become unnecessary by reason of its alleged absorption into the 1st Appellant. That conduct is inconsistent with the position now advanced on appeal and reinforces the conclusion that the Appellants themselves understood that the conditions of assignment remained operative. 12. In the premises, I find that the Tribunal correctly concluded that the 2nd Appellant was required to obtain its own broadcasting licence and that the alleged absorption into the 1st Appellant did not, in the absence of the Respondent's approval, relieve it of that obligation. 13. Although I differ with the Tribunal's narrow approach to the issue of the 1st Appellant's locus standi, that error does not affect the ultimate conclusion. The substantive rights and obligations arising from the assignment remained vested in the 2nd Appellant, which failed to comply with the express conditions governing the assignment. 14. Ground 1 therefore succeeds only to the limited extent of the standing issue, but that error does not warrant setting aside the Tribunal's ultimate decision. Ground 4 fails. The remaining grounds are addressed below. **Whether the Respondent violated Article 47 of the Constitution and the Fair Administrative Action Act (Grounds 2, 3 and 5)** 1. I now turn to the remaining grounds of appeal, namely whether the Tribunal erred in finding that the Respondent did not violate the Appellants' constitutional right to fair administrative action and whether the decision revoking the frequency assignments was unlawful, unreasonable or procedurally unfair. 2. These grounds are founded upon Articles 47 and 50 of the Constitution and sections 4 and 7 of the Fair Administrative Action Act. The Appellants contend that before revoking the assigned frequencies, the Respondent ought to have afforded them an oral hearing, permitted them to make representations, cross-examine witnesses and attend proceedings in person. 3. The Respondent maintains that the 2nd Appellant was repeatedly notified of its non-compliance, invited to regularize its position, and even afforded an opportunity to seek an extension of time before the impugned decision was made. It therefore contends that the requirements of procedural fairness were fully satisfied. **Scope of Article 47** 1. Article 47 guarantees every person administrative action that is lawful, reasonable and procedurally fair. It does not, however, prescribe a rigid or inflexible procedure applicable to every administrative decision. 2. As the Court of Appeal observed in **Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR**, procedural fairness is a flexible concept whose content depends upon the circumstances of each case, the nature of the decision to be made, the statutory framework governing the decision-maker, and the interests affected. 3. Likewise, in **Suchan Investment Ltd v Ministry of National Heritage & Culture & 3 Others [2016] eKLR**, the Court of Appeal held that judicial review is concerned with the legality of the decision-making process rather than with the merits of the decision itself. A reviewing court does not substitute its own opinion for that of the statutory decision-maker merely because another decision might also have been reasonable. 4. The Supreme Court has similarly affirmed that courts exercising supervisory jurisdiction over administrative bodies must respect the institutional competence entrusted by Parliament to specialized regulators while ensuring that constitutional standards of legality, rationality and procedural fairness are observed. 5. The Respondent, as the statutory regulator established under the Kenya Information and Communications Act, exercises technical and specialized functions relating to licensing and management of the radio frequency spectrum. In undertaking those functions, it remains subject to Article 47 and the Fair Administrative Action Act, but it is equally entitled to enforce compliance with lawful licence conditions. **Whether the Respondent accorded the Appellants procedural fairness** 1. The evidence on record is not in serious dispute. The frequency assignment was made by a letter signed on 5th May 2021 upon express conditions that included obtaining a broadcasting licence and operationalizing the assigned frequencies within the stipulated timelines. 2. It is equally undisputed that the 2nd Appellant failed to obtain the requisite broadcasting licence. It is also common ground that the assigned frequencies remained unutilized for more than two years after the assignment. 3. Faced with that non-compliance, the Respondent wrote to the 2nd Appellant on 5th July 2023 requiring it to regularize its position. Further correspondence followed, including the reminder of 31st August 2023. In the intervening period, the 2nd Appellant itself wrote on 17th August 2023 acknowledging that the frequencies had not been operationalized and requesting a further one-year extension. The Authority considered that request and declined it before issuing the revocation letter of 2nd November 2023. 4. Between those two letters, the 2nd Appellant itself wrote to the Respondent on 17th August 2023 acknowledging that the frequencies had not been operationalized and requesting an extension of one year. That correspondence is significant for two reasons. 5. Those exchanges are significant. They demonstrate not merely that the 2nd Appellant knew that it was in breach, but that it was given an opportunity to explain its position and to seek an extension before the Authority made the final decision. The issue before the Authority was therefore not determined without hearing the 2nd Appellant's response. 6. The fact that the Authority declined the requested extension does not, without more, convert the decision into an unfair one. Article 47 protects the fairness of the decision-making process; it does not confer a right to the outcome sought by the affected person. 7. In my view, the correspondence and the conduct of the parties, taken together, demonstrate substantial compliance with the requirement to afford the affected party prior notice and an opportunity to make representations. The Act does not make an oral hearing a universal prerequisite to administrative action. The content of procedural fairness depends upon the nature of the decision, the statutory framework, the interests affected and the circumstances in which the decision is made. 8. In **Dry Associates Ltd v Capital Markets Authority & Another [2012] eKLR**, Majanja J. observed that fairness is context-dependent and that written representations may, depending on the circumstances, satisfy the constitutional requirements of Article 47. 9. Similarly, in **Kenya Human Rights Commission v Non-Governmental Organisations Co-ordination Board [2016] eKLR**, the Court held that the content of procedural fairness varies with the circumstances and that not every administrative decision necessitates an oral hearing. 10. The present dispute concerned compliance with objective regulatory conditions. The principal questions were whether the 2nd Appellant had obtained the requisite broadcasting licence and whether it had operationalized the assigned frequencies within the prescribed period. These were matters capable of objective verification from the Respondent's records and from the Appellants' own correspondence. 11. The Appellants have not identified any disputed factual issue that required the calling of witnesses or cross-examination. Indeed, the facts concerning the absence of a broadcasting licence and the failure to operationalize the frequencies were admitted. In those circumstances, the absence of an oral hearing did not render the decision procedurally unfair. ### (i) The right to cross-examine witnesses under the Fair Administrative Action Act 1. The Appellants further contend that the Respondent violated section 4 of the Fair Administrative Action Act by failing to accord them an opportunity to cross-examine witnesses before revoking the frequencies. That contention must be considered in light of the nature of the administrative decision and the evidence upon which it was based. 2. Section 4(3) of the Fair Administrative Action Act sets out procedural safeguards, including an opportunity to cross-examine where applicable, while section 4(4) addresses attendance, being heard and cross-examination of persons giving adverse evidence. These provisions must be applied in the context of the particular administrative process. They do not convert every regulatory compliance decision into a trial-type proceeding where the administrator is required to call witnesses and permit adversarial cross-examination regardless of the nature of the evidence. 3. In the present case, the Authority's decision was based principally on documentary and objectively verifiable matters: the identity of the assignee, the conditions of assignment, the absence of the required broadcasting licence, the failure to operationalize the frequencies and the correspondence exchanged between the parties. There is no indication in the record that the Authority relied upon disputed testimony whose credibility required testing by cross-examination. 4. The Court of Appeal in **Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR** observed that the content of procedural fairness varies with the circumstances of each case and should not be reduced to rigid procedural formulae. Likewise, in **Dry Associates Ltd v Capital Markets Authority & Another [2012] eKLR**, the Court emphasized that fairness is a flexible concept whose content depends upon the statutory framework, the nature of the decision, and the interests affected. 5. In the present case, the Respondent's decision did not depend upon disputed oral evidence or witness credibility. The material facts were ascertainable from documentary records maintained by the Authority and were substantially admitted by the Appellants. It was common ground that the 2nd Appellant had neither obtained a broadcasting licence nor operationalized the assigned frequencies within the stipulated timelines. 6. There were therefore no witnesses whose credibility required testing in order for the Authority to determine whether the express conditions of assignment had been fulfilled. In those circumstances, the absence of a trial-type hearing did not, on the facts of this case, render the administrative decision procedurally unfair. 7. I therefore find no merit in the contention that the Respondent violated Article 47 or section 4 of the Fair Administrative Action Act merely because it did not convene a formal oral hearing or permit cross-examination. The material question is whether the 2nd Appellant had adequate notice of the case against it and a meaningful opportunity to respond. On the evidence before the Court, it did. **Whether the Respondent acted reasonably** 1. The Appellants further contend that the decision to revoke the assignment was unreasonable. The test of reasonableness in administrative law is not whether the court would have reached a different conclusion. Rather, the inquiry is whether the decision falls within the range of lawful outcomes available to a reasonable decision-maker acting within the confines of the governing statute. 2. The Court of Appeal in **Suchan Investment Ltd v Ministry of National Heritage & Culture & 3 Others [2016] eKLR** emphasized that judicial review is not an appeal on the merits and that courts should not interfere merely because another decision may appear preferable. Applying that principle to the present appeal, I am unable to conclude that the Respondent acted irrationally or unreasonably. The 2nd Appellant had been granted a conditional assignment in May 2021. More than two years later, it had neither obtained the mandatory broadcasting licence nor operationalized the assigned frequencies. It instead sought a further extension of one year without demonstrating compliance with the primary licensing requirement. 3. The Authority was also entitled, and indeed obliged, to consider the efficient utilisation of the scarce radio frequency spectrum and the public interest in ensuring that assigned frequencies are not indefinitely reserved for an entity that has failed to meet express conditions. The recall/revocation of an unused assignment after prolonged non-compliance was rationally connected to that statutory and regulatory purpose. ## (ii) Application of the distinction between a broadcasting licence and frequency assignment 1. The fourth ground fails for the additional reason that the Appellants have not demonstrated any legal basis upon which the 1st Appellant's broadcasting licence could satisfy the 2nd Appellant's obligation under the assignment. The two authorisations perform different regulatory functions and were issued in relation to different corporate entities. 2. A broadcasting licence authorizes a person to provide broadcasting services subject to the applicable regulatory requirements, whereas a frequency assignment authorizes the use of specified spectrum under prescribed technical and operational parameters. The assignment in question expressly required the 2nd Appellant to obtain a broadcasting licence before operationalizing the assigned frequencies. 3. Although complementary, the two approvals are distinct. The 1st Appellant's licence could not, without the Authority's approval or other legal basis, be treated as the licence of the 2nd Appellant. 4. The 2nd Appellant accepted that condition, paid the prescribed fees and later sought an extension of time to implement the project. Its own conduct therefore confirms that it remained bound by the conditions of the assignment. 5. More fundamentally, the regulatory framework does not permit the rights attached to a frequency assignment to be transferred to another entity without the regulator's written consent. No such consent was produced. The alleged internal corporate absorption therefore could not, by itself, alter the identity of the assignee or extinguish its outstanding regulatory obligations. 6. To accept the Appellants' argument would permit regulated entities to alter the identity of the person holding a spectrum authorisation without regulatory approval. That would undermine the statutory scheme governing allocation and efficient utilisation of the spectrum. 7. In the circumstances, I find that the Authority's decision was rationally connected to its statutory and regulatory mandate and was not shown to be unreasonable or disproportionate. **Whether the Tribunal misdirected itself** 1. Having independently reconsidered the record and the grounds of appeal, I find that the Tribunal correctly appreciated the material facts relating to the 2nd Appellant's non-compliance with the conditions of assignment. It also correctly held that no evidence had been presented demonstrating that the Authority approved any absorption, transfer, novation or substitution of the assignee, or agreed that the 1st Appellant's broadcasting licence would satisfy the conditions imposed upon the 2nd Appellant. 2. I have differed from the Tribunal only on the question of standing. In my view, the 1st Appellant was sufficiently aggrieved by the impugned decision to invoke the Tribunal's appellate jurisdiction under section 102F(2) of KICA. That finding does not, however, confer upon the 1st Appellant substantive rights in the frequency assignment, nor does it alter the fact that the 2nd Appellant failed to comply with the conditions governing the assignment. 3. The error on standing was therefore not material to the ultimate determination of the appeal. The Tribunal reached the correct result because the substantive challenge to the Authority's decision could not succeed on the undisputed evidence and the applicable statutory and regulatory framework. 4. The Court is not called upon to determine whether it would itself have granted a further extension. The question is whether the Authority acted within the law, considered the relevant circumstances, afforded the affected party a fair opportunity to respond, and reached a rational decision within the range permitted by its statutory and regulatory mandate. On the record before the Court, it did. **Disposition** 1. In light of the foregoing analysis, I make the following findings: 2. ***The Tribunal erred in holding that the 1st Appellant lacked standing merely because it was not the direct assignee of the frequencies;*** 3. ***That error did not affect the substantive outcome of the appeal and occasioned no miscarriage of justice;*** 4. ***The 2nd Appellant remained under an express obligation to obtain its own broadcasting licence and to comply with the other conditions of assignment;*** 5. ***The Authority gave the 2nd Appellant notice of its non-compliance and a meaningful opportunity to make representations and seek regularisation before the assignment was revoked;*** 6. ***The Authority acted within its statutory and regulatory mandate in recalling/revoking the frequency assignments following prolonged non-utilisation and non-compliance, and the decision was not shown to be unlawful, unreasonable or procedurally unfair;*** 7. ***Subject to the limited error on standing, the Tribunal did not commit any error warranting interference with its ultimate decision.*** 8. Accordingly, I make the following orders: * 1. ***The appeal lacks merit and is hereby dismissed.*** 2. ***The judgment of the Communications and Multimedia Appeals Tribunal in Appeal No. E003 of 2023 is hereby upheld.*** 3. ***The Respondent's decision contained in the letter dated 2nd November 2023 revoking the frequency assignments made to the 2nd Appellant is affirmed.*** 4. ***The Appellants shall jointly and severally bear the costs of this appeal.*** It is so ordered. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF AUGUST 2026.** **HON L.P KASSAN** **JUDGE**