Safaricom has won a court battle to join a dispute challenging the Communications Authority of Kenya’s move to increase spectrum fees for radio frequencies that carry mobile calls and internet services.
Justice John Anuro allowed Safaricom to join the suit where Jamii Telecommunications Limited is fighting the 2025 regulatory fee schedule, which has remained suspended since April last year.
The dispute concerns how the regulator charges telecommunications operators for access to radio frequencies that carry mobile calls and internet data.
The revised spectrum-fee schedule introduced band-based charges calculated according to the amount of spectrum assigned to an operator, moving away from a system based on the number of transmitters in its network.
The Authority says the review is accounting for inflation, technological changes, efficient spectrum use and the need to support investment and connectivity.
Safaricom paid CA Sh16.3 billion in the year to March as licence fees for the year to March, up from Sh14.6 billion a year earlier, making changes to the spectrum charges a driver of costs.
The Authority notified licence holders on March 10, 2025, that revised annual fees would take effect on July 1 that year. Jamii appealed, arguing that the pricing system favoured larger operators and weakened competition.
Jamii told the Communications and Multimedia Appeals Tribunal that the schedule “advantages the more dominant market players with greater resources and revenue share”, making the structure “discriminatory, uncompetitive, unfair, unsustainable, and unreasonable”.
It also argued that the Authority had conducted only superficial public participation and perpetuated existing market inequalities.
Jamii asked the tribunal to overturn the CA’s revised spectrum-fee schedule, arguing that it unfairly favoured dominant telecommunications operators, undermined competition and was introduced without adequate public participation.
The tribunal suspended the schedule on April 24, 2025, pending determination of Jamii’s application.
Safaricom sought to join the case but the tribunal rejected the request, saying the company had not adequately explained the prejudice it would suffer if excluded or disclosed whether it supported or opposed Jamii’s appeal.
Safaricom appealed that decision in the High Court, arguing that the outcome could affect its regulatory obligations, costs, business plans and competitive position.
It also offered to address the technical and economic basis of spectrum pricing and its effects on competition and service delivery.
The Communication Authority opposed Safaricom’s entry, saying the company had not attached material setting out its intended case and had not clarified its position.
It warned that admitting Safaricom could prejudice the regulator, which had responded to Jamii’s appeal, and amount to litigation by ambush.
The Authority reckoned that Safaricom had not identified a justifiable reason to be joined in the suit. Jamii Telecommunications did not oppose Safaricom’s appeal. The tribunal proceedings were suspended on September 19, 2025 following Safaricom’s appeal.
Justice Anuro found that the tribunal had applied the legal test too rigidly and overlooked material in Safaricom’s application. He said the tribunal had acknowledged that Safaricom would be affected by the dispute but then concluded that it had shown no prejudice.
The court said Safaricom’s affidavit stated that the appeal could affect its “regulatory obligations, financial outlay, business planning, and competitive position in the sector”.
“That is a statement of prejudice. It may not have been elaborate, but it is certainly not absent,” said the court.
The court also rejected the view that Safaricom had to declare whether it backed or opposed Jamii’s challenge before being admitted.
“A proposed interested party is not a proposed co-appellant or co-respondent,” said the judge, explaining that an interested party could support some arguments and oppose others, or focus on how the dispute affected its position.
The court also found that the Tribunal erred in treating Safaricom’s offer of sectoral knowledge as a reason to refuse joinder, as that reference to “expertise” was simply a subsidiary reason.
“Its (Safaricom’s) application was not founded solely upon its expertise, its primary contention being that it was itself subject to the fee regime under challenge. I understood its avowed ability to provide technical and industry context to have been merely an additional reason advanced in support,” said the judge.
Safaricom’s role will, however, be limited. The court ordered that it must stick to issues already raised by Jamii and cannot introduce a new claim, ground of appeal or remedy, or take control of the case.
The tribunal is expected to set timelines for Safaricom’s affidavit and submissions and allow the other parties to respond.
A draft market review published by the Communications Authority and ICT Authority says spectrum fees form a significant operating cost and notes that the pricing changes are being litigated.
It warns that a new structure could raise fees for operators with smaller networks, while stressing that pricing should not risk excluding smaller rivals.
