A broadcasting licence can determine whether a media business enters a market, expands its reach or remains commercially viable. That makes licensing disputes look, at first, like contests about who deserves a permit. The Supreme Court of Kenya’s Digital Migration decision shows that the better legal question is different. It asks who has lawful power to decide, what process that decision-maker must follow, and what an applicant can reasonably expect from earlier statements by public officials.

That distinction matters well beyond television. The same problem appears whenever a regulator controls access to a scarce public resource, a regulated market or a statutory permission. An applicant may have invested money, discussed its plans with government officers and built a business model around an anticipated approval. None of those facts, by themselves, create a licence. But neither can a regulator hide behind technical power while ignoring constitutional fairness. The law protects a fair, lawful and reasoned decision-making process, not a shortcut to a preferred result.

The case behind the rule

In Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others, Petition 14, 14A, 14B and 14C of 2014 (Consolidated) [2014] KESC 53 (KLR), decided on 29 September 2014, Kenya was moving from analogue to digital terrestrial television. Established free-to-air broadcasters had invested in content and transmission infrastructure. Digital migration separated content production from signal distribution, and the regulator licensed signal distributors to carry digital signals.

Royal Media Services, Nation Media Group and Standard Group challenged aspects of that arrangement. Their complaints raised media freedom, licensing, procurement, copyright, legitimate expectation and fair administrative action. The Court of Appeal had given them substantial relief, including an order that they receive a signal-distribution licence. The Supreme Court took a more institutionally careful approach.

The Court held that the then Communications Commission of Kenya did not become powerless merely because the institutional reforms contemplated by Article 34(5) of the 2010 Constitution had not yet been completed. Existing law continued during the constitutional transition, subject to interpretation that brought it into conformity with the new Constitution. The Court was unwilling to create a regulatory vacuum in a sector that depended on continuous administration.

What an applicant can legitimately expect

The most practical part of the judgment concerns legitimate expectation. The broadcasters relied in part on assurances and on the scale of their historical investments. The Supreme Court rejected the idea that those circumstances automatically entitled them to a licence. It stated that an enforceable legitimate expectation must rest on a clear and unambiguous representation, must be reasonable, must come from an authority with legal power to make it, and cannot contradict the Constitution or statute.

That is a useful courtroom test because it separates understandable commercial hope from legal entitlement. Suppose a ministry official tells a company that a broadcasting licence will be issued, but the statute gives licensing authority to an independent regulator. The statement may explain why the company acted as it did, but it cannot transfer statutory power from the regulator to the ministry. A court cannot use legitimate expectation to make lawful what the law has reserved for another decision-maker.

The Supreme Court later reaffirmed this disciplined approach in Kenya Revenue Authority v Export Trading Company Limited [2022] KESC 31 (KLR). The doctrine protects fairness where government has made a sufficiently precise and lawful representation. It is not a device for enforcing an assurance that the speaker had no power to give, or for bypassing a mandatory legal process.

Fairness still controls the regulator

Rejecting an automatic entitlement did not mean the regulator won an unrestricted discretion. The Supreme Court treated broadcasting licensing as administrative action. Articles 10, 34 and 47 required legality, transparency, reasonableness and procedural fairness. The Court criticised an approach that reduced the dispute to procurement formalities without adequately absorbing constitutional values.

That part of the decision has become even more practical since Parliament enacted the Fair Administrative Action Act 2015. Section 4 gives every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Where a decision may adversely affect rights or interests, the Act requires prior notice of the proposed action, an opportunity to be heard, notice of available review or appeal, and reasons in appropriate cases. The Fair Administrative Action Rules 2024 now provide the current procedural framework for judicial review under that Act.

For a licence applicant, this means the first legal question should rarely be, “Can the court order the regulator to give me the licence?” The better sequence is to ask whether the correct authority decided the application, whether the applicable criteria were disclosed and applied, whether relevant information was considered, whether the applicant had a reasonable opportunity to respond to adverse material, and whether reasons reveal a lawful connection between the evidence and the result.

The position in Kenya today

Broadcasting remains a licensed activity under the Kenya Information and Communications Act and the regulatory framework administered by the Communications Authority of Kenya. The Authority’s current public licensing materials continue to distinguish broadcasting service categories and to maintain a register of licensed broadcasting service providers. Its register was current to 30 June 2026 when this article was prepared.

That current framework makes the Digital Migration case more, not less, relevant. The identity of the regulator and the details of licensing have evolved, but the constitutional discipline survives. Scarce frequencies and signal-distribution infrastructure may legitimately be regulated. Media freedom does not abolish licensing, while licensing does not place the regulator above Articles 10, 34 and 47.

The African Commission on Human and Peoples’ Rights’ 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa adds a useful regional perspective. Adopted to elaborate Article 9 of the African Charter, the Declaration treats freedom of expression and access to information as rights that require an enabling legal environment. It is soft law rather than a Kenyan licensing statute, but it supports interpretation that guards regulatory independence, transparency and media pluralism.

How to use the case in practice

For an applicant, the strongest file is built before litigation. Written applications, published criteria, correspondence, meeting records, representations made by identified officials, reasons for decisions and any internal review steps should be preserved. If legitimate expectation is later pleaded, the exact promise should be identified, together with who made it, when it was made, why that person had authority, how the applicant relied on it and why enforcing it would remain consistent with the governing statute.

For a regulator, a defensible record should show more than a conclusion. It should identify the legal source of power, the criteria used, material considered, participation or representations received, conflicts or disqualifying factors, and the reasons connecting those matters to the outcome. A decision is much easier to defend when the administrative record already demonstrates fairness instead of trying to reconstruct it after a petition is filed.

For a court, the case encourages remedial restraint. In Digital Migration, the Supreme Court did not simply substitute itself for the regulator by granting the broadcasters the licence. It required constitutionally compliant reconsideration while preserving the decision-maker’s statutory role. That is often the proper distinction between correcting unlawful administration and taking over administration.

Why the decision matters

The enduring lesson is that licensing disputes contain two different interests that should not be confused. The applicant has an interest in lawful and fair treatment. The public has an interest in decisions being made by the institution to which Parliament and the Constitution entrusted them. A court protects both interests when it insists on fair procedure without manufacturing a licence that the legal process has not produced.

For media businesses, that is especially important because regulation touches both commerce and constitutional freedom. A licence is not a favour, but neither is it an automatic reward for investment. It is a legal decision that must come from the right authority through a process capable of public-law scrutiny. The Digital Migration case remains valuable because it explains that balance in a way that can be applied to regulators far beyond broadcasting.

Source note

This article is based on Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), the Constitution of Kenya 2010, the Kenya Information and Communications Act, the Fair Administrative Action Act 2015, the Fair Administrative Action Rules 2024, current Communications Authority of Kenya licensing materials and broadcasting register, Kenya Revenue Authority v Export Trading Company Limited [2022] KESC 31 (KLR), and the African Commission on Human and Peoples’ Rights’ Declaration of Principles on Freedom of Expression and Access to Information in Africa 2019.

Suggested citation:

Ronald Serwanga, “A Broadcasting Licence and Fairness under Kenya Law” East Africa Legal Insight (7 September 2026).