https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11273

Odek v Communications Authority of Kenya & another (Judicial Review E134 of 2026) [2026] KEHC 11273 (KLR) (Judicial Review) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11273 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E134 of 2026 WM Musyoka, J July 24, 2026 Between Wilson Julius Odek Applicant and Communications Authority Of Kenya Respondent and Airtel Networks Kenya Limited Interested Party Judgment 1.The Applicant moved this court by way of originating motion, dated 7th May 2026, in which he seeks a declaration that the failure by the respondent to determine his complaint, lodged on 22nd August 2025, was unlawful, unreasonable and procedurally unfair; a declaration that the respondent had violated its statutory obligations, under the Kenya Information Act, by failing to process and determine the his complaint within reasonable timelines; and an order of mandamus , to compel the respondent to conclude investigations and render a determination within 14 days after upon entry of judgement. 2.The application is supported by the grounds on the face of it, and by the supporting affidavit of the applicant, sworn on 7th May 2026. It is contended that upon discovering that his mobile line was unlawfully deactivated, the applicant lodged a complaint with the respondent. The respondent acknowledged receipt of the complaint on 5th September 2025, and represented that investigations were underway. 3.The respondent has opposed the application, by filing a notice of preliminary objection, dated the 15th June 2026, and a replying affidavit, sworn by Ms. Caroline Murianki, the Deputy Director Consumer Protection, of the Respondent herein. It was averred that the complaint by the applicant was received on 22nd August 2025, and the respondent had been following up with the interested party, on several occasions for a response to the complaint. It is further averred that the respondent sent an email to the interested party, requesting it to urgently address the matter, having noted that the respondent had made a commitment to resolve the complaint. The interested party responded, informing the Respondent that the applicant’s number had been registered under a new subscriber, due to being inactive or dormant, which information the respondent duly relayed to the applicant. It is averred that the applicant responded to the email, by the respondent, disputing and rejecting the assertions made by the interested party, surrounding the deregistration and reassignment of his mobile number, and a follow up was made by the respondent, with the interested party, informing it that the applicant had disputed the report, and requested it to review the concerns raised by the applicant, and provide a resolution within 7 days. 4.The application was canvassed by way of written submissions. 5.The written submissions, by the applicant, are dated 10th June, 2026, and it is contended that he had lodged his complaint with the respondent, on 22nd August 2025, and that, as at the date of filing his application, 9 months had lapsed, without a determination being made, and that the failure by the respondent to comply with its own statutory and regulatory obligations, amounts to breach of section 4(6) of the Fair Administrative Action Act, Cap. 7L, Laws of Kenya. 6.The written submissions, by the respondent, are dated 16th June, 2026. It is argued that the applicant ought to have made a complaint to the Communications and Multimedia Appeals Tribunal, established under section 102 of the Kenya Information and Communications Act, which tribunal has jurisdiction to handle matters arising out of acts and omissions of the respondent. The respondent relies on William Odhiambo Ramogi & 3 Others vs. Attorney General & 4 Others; Muslim for Human Rights & 2 others (Interested Parties) [2020] eKLR, in which the court held that the exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters, to ensure that a party is, first of all, diligent in the protection of his own interest, within the mechanisms in place for resolution outside courts, and thereby encouraging alternative dispute resolution mechanism in line with Article 159 of the Constitution. Based on the above arguments, the respondent urges that the application be dismissed with costs. Based on the above arguments, the Respondent urged that the application be dismissed with costs. 7.I have considered the application, as filed, together with the parties’ pleadings, and the rival submissions by both parties. The issues that arise for determination are around jurisdiction of the court and the merits of the application. 8.Let me start with the matter of jurisdiction. The respondent filed a preliminary objection; it raises the issue of the jurisdiction of this court to determine the dispute herein. This calls for determination because section 102A of the Kenya Information and Communications Act, provides a right to appeal to the Communications and Multimedia Appeals Tribunal, which has jurisdiction to handle matters arising out of acts or omissions of the respondent. It is trite that jurisdiction is everything, and without it a court cannot act or move one more step, as was held in Owners of the Motor Vessel ‘Lilian S’’ vs. Caltex Oil (Kenya) Ltd [1989] KLR 1. In Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Ltd & 2 others [2012] eKLR, it was stated that, “A court’s jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 9.The powers of the Communication and Media Appeals Tribunal are set out under section 102E (1) of the Kenya Information and Communications Act, Cap 411A, as follows:The Tribunal may, after hearing the parties to a complaint—a.order the offending party to publish an apology and correction in such manner as the Tribunal may specify;b.order the return, repair, or replacement of any equipment or material confiscated or destroyed;c.make any directive and declaration on freedom of expression;d.issue a public reprimand of the journalist or media enterprise involved;e.order the offending editor of the broadcast, print or on-line material to publish the Tribunal's decision, in such manner as the Tribunal may specify;f.impose a fine of not more than twenty million shillings on any respondent media enterprise and a fine of not more than five hundred thousand shillings on any journalist adjudged to have violated this Act;g.in its reasons for its findings, record a criticism of the conduct of the complainant in relation of the complaint, where such criticism, is in its view, warranted;h.recommend the suspension or removal from the register of the journalist involved;i.make any supplementary or ancillary orders or directions that it may consider necessary for carrying into effect orders or directives made. 10.It is clear, from the above, that the Communication and Media Appeals Tribunal does not have the power to address the concerns that the applicant raises in this application. By its nature, judicial review can only be invoked where there is no other alternative remedy that is as convenient, beneficial and effective. It follows that instituting a complaint before the Communication and Media Appeals Tribunal would not have provided the applicant with a sufficient and efficient remedy for resolution of the dispute herein. I, therefore, find that the court has jurisdiction to determine the dispute herein, for there was no alternative mechanism for the applicant. 11.I will now turn to determine the next issue, and that is the merits of the application. It is trite that a court cannot issue orders in vain. In the instant case, it is not disputed that the respondent carried out its own investigations, with the interested party, on the complaint by the applicant, and delivered a response to the applicant. The respondent is a competent body, with the mandate to determine complaints, emanating from matters governed by the Kenya Information and Communications Act, such as the complaint lodged by the applicant. The applicant has failed to demonstrate that the respondent has refused, neglected, or in any way acted unlawfully or unreasonably, in the handling of his complaint. It has not been demonstrated that there is more that the respondent could do, or is under a duty to go beyond what it has done so far. 12.In the end, I am not persuaded that the applicant has established a case, for grant of the orders that he seeks in his originating motion, dated 7th May 2026, and the same is hereby dismissed, with no orders as to costs. Orders accordingly. DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 24TH DAY OF JULY 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.Ms. L Wafula, Legal Researcher.Mr. Wilson Odek, the applicant, in person.AdvocatesMs. Kiage, instructed by Chepkuto Advocates LLP, for the respondent.Mr. Okello, instructed by Kiptiness & Odhiambo Associates LLP, Advocates for the interested party.