BY REBECCA WANJIKU
Third Global Mobile Service (GSM) is now ready for roll out after Communications Commission of Kenya (CCK) and Econet wireless won the latest legal battle seeking to delay the process until monetary issues are sorted out.
High court judge Mary Kasango struck out a suit filed by Kenya National Federation of Cooperatives Limited on a technicality. KNFC was seeking the court’s indulgence in its effort to avoid the month’s notice required before the suit can be filed. The procedure is prescribed under the Communications Act (1998).
Justice Kasango ruled that the law does not allow her to waive notice adding that the constitution allows her to be guided by written laws. She also declined to exrcise the inherent jurisdiction because such powers only exist where the law is not written or is unclear.
“KNFC finds itself without a leg to stand on. It can not obtain a waiver since the Act does not provide for such waiver. The court’s inherent powers can not salvage the situation,” justice Kasango found.
The Federation moved to court under a certificate of urgency seeking to block CCK from issuing frequencies and other technical fulfilments that were agreed under the licence.
The licence was awarded to KNFC together with its partners, Econet Wireless Kenya, Econet Wireless International Limited and Corporate Africa Limited in 2003 but the consortium has faced a rocky union because KNFC could not raise its required financial quota.
Justice Kasango was ruling on a preliminary objection raised by CCK contending that the court had no powers to issue any orders based on the papers filed by the Federation.
Lawyer Walter Amoko representing CCK told justice Kasango that the Communications Act provides for a period of six months within which an aggrieved party is expected to lodge the dispute. He argued that the Federation had slept on its rights for two years before filing the suit.
Lawyer Njoroge Regeru representing Econet told justice Kasango that the Federation had failed to disclose that there were other proceedings that had been argued before high court judge Mohammed Ibrahim. The consortium was invoved in a protracted legal tussle over shareholding but the case was decided against KNFC. The Federation has filed its appeal.
When the Federation was supposed to present its case on why the suit should be sustained, the lawyer, C.N Kihara did not appear at the appointed time. He only turned up after the judge had waited for half an hour and closed the proceedings of that day. The case was therefore based on the arguments presented by CCK and Econet.