[2007] KEHC 2144 (KLR)
The court found that the plaintiff had established a prima facie case as the sole author and copyright owner of the song 'Niguthondeka Njira', and that the defendant, having been served, failed to oppose the application or rebut the allegations of copyright infringement. The court was satisfied that the plaintiff...
Source-derived case information.
- Citation
- [2007] KEHC 2144 (KLR)
- Parties
- Plaintiff: Elijah Mira Wainaina alias Elijah Miller; Defendant: Interactive Media Services Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 974 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- Application allowed. Interlocutory injunction granted as prayed. Costs awarded to the applicant.
- Judges
- JL Osiemo
- Legal Topics
- Copyright Infringement, Injunctive Relief, Artistic Works, Music Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Mira Wainaina alias Elijah Miller
Plaintiff
Interactive Media Services Ltd
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to an interlocutory injunction restraining the defendant from selling ringtones derived from the plaintiff's copyrighted song.
- 2 Whether the defendant has infringed the plaintiff's copyright in the song 'Niguthondeka Njira'.
- 3 Whether costs should be awarded to the applicant.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case as the sole author and copyright owner of the song 'Niguthondeka Njira', and that the defendant, having been served, failed to oppose the application or rebut the allegations of copyright infringement. The court was satisfied that the plaintiff was entitled to the interlocutory injunction sought to restrain the defendant from further infringing his copyright by selling ringtones derived from the song. The application was therefore allowed as prayed in the relevant prayers of the Chamber Summons.
Court Disposition
Application allowed. Interlocutory injunction granted as prayed. Costs awarded to the applicant.
Orders
- The defendant, its agents, servants and/or employees are restrained by an order of injunction from selling ringtones from the Kikuyu Gospel song known as 'Niguthondeka Njira' or in any way howsoever infringing on the plaintiff’s artistic works of music/copyright until the hearing and determination of the suit.
- The costs of this application are awarded to the applicant.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Misc Appli 974 of 2006
ELIJAH MIRA WAINAINA ALIAS ELIJAH MILLER…….…........….PLAINTIFF
VERSUS
INTERACTIVE MEDIA SERVICES LTD………………….....…DEFENDANT
RULING
By way of this Chamber Summons dated 23rd June 2006, the Applicant seeks orders that the Defendant either by itself, its agents, servants and/or employees be restrained by an order of injunction from selling ringtones from the Kikuyu Gospel song known as ‘NIGUTHONDEKA NJIRA’ or in any way howsoever infringing on the Plaintiff’s artistic works of music/copyright till the hearing and determination of this suit. The applicant also seeks the costs of this application. The application is based on the grounds as stated on the body of the Chamber Summons and also supported by an affidavit sworn by the Applicant.
Mr. Kaburu counsel for the Applicant submitted that the Plaintiff is the sole author of the song known as ‘NEGUTHONDEKA NJIRA’ and he is the owner of the copyright. On 4th March 2006 he discovered that the Defendant is selling ringtones derived from his said song and when he learned of the infringement of his copyright by the Defendant he sent them a demand notice requiring them to stop the infringement of his copyright but to no avail. He was forced to file this suit and in the meantime he sought temporary injunction as prayed in this application.
The Respondent was served but did not file any papers to oppose the application. The application being not opposed, the same is allowed in terms of prayers 2 and 3 of the Chamber Summons dated 23rd June 2006.
Dated and delivered at Nairobi this 18th July 2007.
J.L.A. OSIEMO
JUDGE