The High Court has struck down a government directive that restricted public advertising in ministries and state agencies to Kenya Broadcasting Corporation (KBC).
Justice Lawrence Mugambi ruled that the directive, issued on March 7, 2024, by Broadcasting Principal Secretary Prof. Edward Kisiang’ani, was unlawful since the PS lacked the legal authority to enforce such a policy.
“The second respondent (PS Kisiang’ani) unlawfully assumed powers that do not exist. Under the Public Procurement and Asset Disposal Act, he has no capacity to exercise such authority, making his directive null and void from the outset,” Justice Mugambi stated.
The court criticized Kisiang’ani for excluding private media houses from accessing government advertisements, arguing that public funds should not be directed solely to KBC.
Justice Mugambi further observed that the PS’s directive appeared to be an attempt to suppress independent media by cutting off their primary source of revenue.
Additionally, the court ruled that any policy enforcing discriminatory exclusion in public procurement is illegal.
“For the State to make such a fundamental policy shift affecting the procurement of advertising services that excludes privately-owned enterprises…such a decision is not a mere internal matter to be effected without the involvement of the public, whose concerns must be heard and taken into account before the policy is made,” the judge stated.
The judge also found that PS Kisiang’ani misinterpreted public procurement laws and overstepped his authority by assuming powers that legally belong to the Treasury Cabinet Secretary. Only the Treasury CS, the ruling stated, has the mandate to formulate policies and issue guidelines on how government entities procure goods and services.
