CA’s bid to sue Royal Media over frequency breach turned down

By ABIUD OCHIENG

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Summary

• The CA was challenging the decision by the DPP in 2013, not to prosecute Royal Media Services Ltd (RMS) for use of the alleged unauthorised frequencies to broadcast in parts of the country.
• Court of Appeal judges William Ouko, David Musinga, and Gatembu Kairu, have upheld a High Court decision on the matter which had said the DPP had acted within his powers.
• The appellate judges held that the DPP does not require consent or authority of any person for commencement of any criminal proceedings; but is subject only to the Constitution.

The Communications Authority of Kenya (CA) has lost its bid to have the Director of Public Prosecutions (DPP) compelled to prosecute a media house for alleged use of unauthorised frequencies five years ago.

The CA was challenging the decision by the DPP in 2013, not to prosecute Royal Media Services Ltd (RMS) for use of the alleged unauthorised frequencies to broadcast in parts of the country.

Court of Appeal judges William Ouko, David Musinga, and Gatembu Kairu, have upheld a High Court decision on the matter which had said the DPP had acted within his powers.

The appellate judges held that the DPP does not require consent or authority of any person for commencement of any criminal proceedings; but is subject only to the Constitution. The decision whether or not to institute criminal proceedings is purely discretionary, that discretion must however be exercised by the DPP within the constitutional limits, they ruled.

“We are not persuaded that the DPP did not act within the Constitution or the settled policy; or was so unreasonable that no reasonable prosecutor could have arrived at such a decision,” said the judges.

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They explained that in their view, the DPP acted within his powers and cannot be said to have acted excessively in directing the Director of Criminal Investigations (DCI) to close his file. The judges also said that there is no legitimate expectation that all complaints once investigated must lead to prosecution.

The decision as to whether or not to commence criminal proceedings does not lie with a complaint but within the discretion of the DPP and is dependent upon the evidence available.

“We add that whereas generally speaking a complainant would ordinarily expect the DPP to prosecute a suspected offender based on the evidence availed to or gathered by the police, the DPP, in exercise of the discretion conferred upon him by the Constitution and statute, cannot be accused of having breached a complainant’s legitimate expectation if he chooses not to institute criminal proceeding.”

On January 30, 2013 the CA had applied and obtained orders from the Magistrate’s Court to seize Royal Media’s broadcasting equipment that it said were being used to make unauthorised transmissions in Migori, Enchoro Hills in Borabu, Narok, Menengai Hill in Nakuru, Nanyuki, Gatere in Murang’a, Mukuyuni, Mwingi, Karue Hill in Embu, Mambrui in Malindi and Vuria in Taita.

Later on February 15, 2013 the DCI wrote to the DPP recommending that the media house and its directors be arrested and charged for the use of unauthorised frequencies.

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