The High Court has dismissed a case filed by Liquid Telecommunication Kenya Ltd, questioning the Communication Authority of Kenya (CA)’s failure to give it the green light to connect Kenya to a high-speed undersea cable from China.
Justice Patricia Gichohi sitting in Nairobi ruled that the internet services provider, slept on its rights after CA declined to issue a license granting it landing rights to the 15,000km (kilometre) Pakistan-East Africa Connecting Europe Company (Peace) cable.
According to Justice Gichohi, the telco ought to have moved to the Communication and Multimedia Tribunal within a month after CA replied to it.
She observed that despite CA’s failure to give reasons why it had rejected the Beijing-backed digital Silk Road initiative, it was not a valid reason for Liquid Telecom to seek the court’s intervention late in the day.
“As per the legal provisions expounded herein, the refusal by the respondent (CA) to furnish the reasons for its decision cannot be deemed as extenuating circumstances. It is not an excuse for delay by the appellant to move the tribunal as appropriate so as to comply with timelines,” said Justice Gichohi.
Chinese tech giant Huawei is a shareholder in Peace. The cable was to give Kenyans seamless digital access to Asia and Europe.
In its case, Liquid Telcom explained that it sealed the cable deal on September 5, 2019, and the requirement was to get a Submarine Cable Landing Rights License (SCLR) from CA within 135 days after signing the agreement.
The firm said it applied for the license eight days later. However, CA got back on June 24 the following year.
Liquid Telcom pushed the regulator to explain why it had rejected its application. It is during the exchanges that the appeal time lapsed.
However, the company moved to the tribunal on December 3, 2020, blaming CA for the delay. At the tribunal, the firm complained that CA had abdicated its duty by failing to give reasons for dismissal in time. The tribunal dismissed the appeal. Liquid Telcom then moved to the High Court. It lamented that it risked losing its investment if Peace was not allowed to land in Kenya.
It argued that the tribunal erred by failing to appreciate it had presented a genuine concern.
However, the regulator said the law was clear on what Liquid Telcom ought to have done when CA declined to grant the license. According to CA, the firm ought to have alerted it for a quick remedy if there was a risk of breaching the terms of the contract.
