[2022] KEHC 11690 (KLR)

Guardian Coach Limited & another v Performers Rights Society of Kenya (PRISK) & another (Petition 249 of 2019) [2022] KEHC 11690 (KLR) (Constitutional and Human Rights) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11690 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 249 of 2019

HI Ong'udi, J

May 17, 2022

CHAPTER FOUR OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF RULES 11, 12 & 13 OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL (HIGH COURT PRACTICE AND PROCEDURE RULES 2006) AND IN THE MATTER OF CONTRAVENTION AND OR ALLEGED CONTRAVENTION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 22, 23, 27, 40, 43, 46 AND 47 OF THE CONSTITUTION AND IN THE MATTER OF COPYRIGHTS ACT NO. 12 OF 2001 LAWS OF KENYA, 2010

Between

Guardian Coach Limited

1st Petitioner

Nyamira Luxury Express Company Limited

2nd Petitioner

and

Performers Rights Society of Kenya (PRISK)

1st Respondent

Kenya Copyrights Board (KECOBO)

2nd Respondent

Judgment

1. The two petitioners filed the petition dated 17th June 2019 claiming a violation of their rights under Articles 22, 23, 27, 40, 43, 46 & 47 of the Constitution, and the Copyright, Act No. 12 of 2001 Laws of Kenya.

2. They claim that on 23rd May 2019 the 1st Respondent conducted calculated moves by stopping movement of their vehicles. That this was despite their compliance with all the requirements or regulations of the national transport & Transport & Safety Authority & the Traffic laws.

3. They further claim that the respondents’ acts were without notice were unjustified, illegal arbitrary & unprocedural. As a result of the 1st respondents’ acts the Petitioners’ driver Edward Tumangi was arrested and charged in criminal case No. 2072 of 2019 and Kibera Cr. Case No. 1934 of 2018.

4. They further state that the respondents have never notified them to register their musical instruments and any music played in their vehicles. Further that the radios fixed to their vehicles were done by the manufacturer and supplier of the said vehicles.

5. The respondents acts are therefore an infringement which triggered the raid and inspection not based on a data base or enforcement of a specific copyright. They relied on Article 47(1) of the Constitution of Kenya, to argue their case.

6. They therefore seek the following prayers:-a.A Declaration that the act of the respondents jointly and severally is irregular, arbitrary, unfair null and void, ab initio.b.A permanent order of injunction restraining the Respondents jointly and severally, their agents, servants, functionaries, members and or officers by whatever name called from disrupting, intercepting, entering onto, inspecting, searching, stopping, obstructing, immobilizing or in any manner hampering mobility of vehicles or any vehicle registered in the name of the petitioners.c.A declaration that the respondents had a duty to give notices to the petitioners regarding proposed searches and that the search if any be undertaken at the bus terminus of the petitioners and not along the roads plied by the petitioners in the course of their business.d.Costs of this Petition to the petitioners.

The Petitioners case 7. This petition was said to have been supported by the sworn affidavit of Julius Mokaya Ong’era which was not filed. Instead the petitioners filed a written statement by the same person.

The Respondents case 8. The 1st Respondent filed a replying affidavit dated 12th September 2019 by Diana Pere 1st respondent’s Legal Officer. She averred that the 1st respondent collects remuneration on behalf of the copyright holders from various users of performers’ works and distributes royalties to the said rights holders who comprise of both musicians and actors.

9. She deponed that three (3) collective Management Organizations (the CMOs) within the music industry are currently licenced by Kenya Copyright Board (2nd respondent) under Section 46 of the Copyright Act to represent different classes of rights.

10. She further deponed that the 1st respondent is duly registered and licenced to collect licence fees to enforce rights of performers of sound recording and/or audio visual works respectively. It also collects royalties on behalf of the right holders of the specific class they hold.

11. She averred that the petitioners are the users of various copyrighted music and have a statutory obligation to ensure that they comply with the law prior to playing music in their public service vehicles (PSVs) (categorized under Joint Collections Tariff as commercial vehicles) by obtaining a joint licence from the CMOs.

12. She deponed that she was aware that on 22nd May 2019 or thereabout licensing officers from the three CMOs were inspecting public service vehicles along Nairobi-Kericho highway assisted by police from Kericho Central Police Station.

13. She further averred that she is aware that the driver of the motor vehicle KCM 781A Edward Tumangi was found playing music without a licence. He refused to pay for the licencing fees prompting the police officers to arrest him and he was booked at Kericho Central Police Station.

14. She deponed that the petitioners have not proved any breach of provisions of statute or the constitution. That the Petitioners have breached Rule 11 (1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 by failing to support their application with an affidavit. Instead a written statement was filed.

15. She further depones that no administrative decision was undertaken by the 1st Respondent as the arrest of the drivers was done by the Police. The charging was by the ODPP who is not a party herein.

16. She denied all the allegations in paragraphs 1 – 13 of the Petition. She adds that the 1st petitioner’s driver was properly charged for infringement of the copyrighted musical works and sound recordings contrary to Section 38 (2) as read with Section 38(7) of the Copyright Act. She avers that the 1st respondent has no mandate to issue notices while exercising its legal mandate.

17. She depones that the Petitioners have not set out with specificity the fundamental rights and freedoms allegedly violated.

18. The 2nd respondent filed the following grounds of opposition dated 15th July 2019. a.The 2nd Respondent is neither a collective Management Organization nor is it involved in collecting and/or distributing royalties;b.The 2nd Respondent has not instituted any criminal proceedings against nor has it been involved in any raids involving the petitioners’ agents and/or representatives as alleged in the petition;c.The petition does not expressly disclose any breach of fundamental rights of the petitioners by the 2nd respondent; andd.The 2nd respondent herein has therefore been wrongfully joined in the matter.

19. A replying affidavit sworn by George M. Nyakweba on 15th July 2019 was also filed. He averred to being the 2nd respondent’s deputy executive director. He averred that the 2nd respondent is a statutory corporation established under the Copyright Act and is mandated to administer and enforce copyright and related rights. It is also responsible for licensing and supervising the activities of collective management organizations (CMO’s) under the Act. He deponed that the 1st respondent is a CMO duly registered to collect royalties on behalf of the 1st respondent. It has never interacted with the petitioners and is a stranger to the alleged events of 23rd May 2019. That the 2nd respondent should not have been enjoined in this petition.

Parties Submissions 20. The petitioners filed their submissions dated 18th February through Mose Nyambega & Co. Advocates. Counsel identified one issue for determination. The issue is whether the respondent’s action is contrary to Article 47 of the Constitution of Kenya 2010 thus irregular, arbitrary, unfair, null and void.

21. He referred to the provisions of Articles 47, 22(1), 23(1) of the Constitution and Section 4(3) of the Fair Administrative Act. He further referred to the case of Kenya Human Rights Commission & another vs. Non-Governmental Organizations Co-ordination Board & Another [2018] eKLR where it was held that:-“It would appear the 1st petitioner was deregistered without being accorded an opportunity to be heard as required by Article 47 …there is no doubt in my mind, that acting as it did, the respondent violated 1st petitioner’s right to a fair Administrative Action contrary to Article 47 of the Constitution. Administrative Actions that flow from statues, must now meet the constitutional test of legality, reasonableness and procedural fairness. According a party a hearing before taking action against him is no longer discretionary. It is firmly entrenched in our constitution as an inviolable right. It is an important safeguard against capricious and whimsical actions that lead to abuse of authority by public bodies exercising administrative and quasi-judicial functions. These no longer have place in our constitutional dispensation.This court can only emphasize that it is no longer even a mere legal requirement but a constitutional one that a person is entitled to be heard…. Such conduct was inexcusable, amounted to abuse of power and must not be allowed in a democratic state as to quantum, I consider general damages of Kenya Shillings two million appropriate.”(emphasis added)

22. He equally cited the case of Mohammed Sheria & 2 others v. Simon Kipkorir Sang & 5 others [2018] eKLR where it was held:-“that the various actions and decisions of the 1st Respondent, the 2nd Respondent and 2nd Respondent’s Officials and Organs, against the Petitioners, were in contravention of the Petitioners’ fundamental rights and freedoms under Article 41 and 47 of the constitution of Kenya.”

23. Counsel submits that the respondents conduct was calculated to halt, stop etc the movement of the petitioners motor vehicles without reasonable notice. That the petitioners were never given an opportunity to make representation hence a violation of their right to be heard. The respondents’ action led to the arrest and charging of the petitioners drivers vide Kericho Criminal Case No. 2072 of 2019 and Kibera Criminal Case No.1934 of 2018. The respondents also confiscated the driver’s driving licence with no justification. This amounts to abuse of power he submits.

24. The 1st respondent’s submissions dated 5th October 2020 were filed by J. M. Waiganjo and Co. advocates Counsel raised five (5) issues for determination namely;i.Whether the Petition meets the threshold set out in the Anarita Karimi Case.ii.What is the 1st Respondent’s statutory mandate and whether it was acting within its mandate in carrying out the impugned inspections.iii.Whether the 1st Respondent was entitled to the issuance of a notice prior to conduct of inspection?iv.Whether the Petitioners are entitled to the prayer’s sought.v.Who should bear the costs of the petition herein.

25. On the first issue he submits that a petitioner is required to set out with a degree of precision the provisions alleged to have been violated. He relied on the cases of; Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemo v. Trusted Society of Human Rights Alliance [2013] eKLR. Counsel submits that the petitioners merely made a general and blanket allegation that their rights were infringed with nothing more. They don’t state how the said rights were infringed.

26. He contends that the farthest they got was mentioning Article 47(1) of the Constitution. They do not explain how the administrative action taken by the 1st respondent affected their rights. Failure to particularize therefore rendered the petition defective. To support this submission he cited Kiambu County Tenants Welfare Association v Attorney General and another [2017] eKLR where Mativo J stated:-“Courts have over the years established that for a party to prove violation of their rights under the various provisions of the Bill of rights they must not only state the provisions of the Constitution allegedly infringed in relation to them, but also the manner of infringement and the nature and extent of that infringement [14] and the nature and extent of the injury suffered (if any).”

27. On the second issue Counsel set out the 1st Respondent’s mandate under Article 11(2)(c) read together with Article 40(5), CopyrightAct and Section 46, 46A part VII Section 35, 38 outlining the functions of the 1st respondent.

28. The 2nd respondent did not file any submissions. Counsel informed the court that they would rely on the 1st respondent submissions.

Analysis and determination 29. I have carefully considered the Petition, affidavits, grounds of opposition, rival submissions, cited authorities and the law. I find the issues falling for determination to be as follows:i.Whether the petition meets the threshold set out in the Anarita Karimi caseii.Whether the Petitioners have proved a violation of their rights by the respondents.iii.Whether the Petitioners are entitled to the reliefs sought.iv.Who should bear the costs of the petitioner.

Issue no. (i) & (ii)i.Whether the petition meets the threshold set out in the Anarita Karimi caseii.Whether the Petitioners have proved a violation of their rights by the respondents. 30. The Petitioners filed this petition alleging violation of their rights. The petitioners are registered companies who own a fleet of buses plying a number of routes in Kenya and crossing over to Kampala – Uganda. The petition was field alongside a verifying affidavit by one Julius Mokaya Ongera a director of both companies. At paragraph 13 of the petition it is indicated thus:-“Which Petition is further supported by the duly sworn affidavit of Julius Mokaya Ongera and on other grounds to be adduced at the hearing hereof.”

31. The record clearly has no supporting affidavit annexed to the petition. Together with the petition was filed a Notice of motion of even date. The said application had an accompanying affidavit by the said Julius Mokaya Ongera. The record shows that this application was abandoned and parties proceeded to hear the petition. On further perusal of the record I do not see anywhere indicated that the petitioners would rely on the affidavit of the abandoned application to support the petition.

32. Besides this, the petitioners filed a witness statement which can not for obvious reasons replace a supporting affidavit. Rule 11(1) of the constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice and Procedure Rules 2013 provides:-“11. (1)The petition filed under these rules may be supported by an affidavit.”Under this Rule a petition requires a supporting affidavit. This has not been complied with.

33. This being a petition claiming a violation of constitutional rights it must adhere to the set principles. This is the petitioner’s petition. Its their duty to set out clearly what rights have been infringed and how they have been allegedly infringed. In the case of Anarita Karimi Njeru (supra) the Court of Appeal stated:-“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complaints, the provision said to be infringed, and the manner in which they are alleged to be infringed.”

34. This principle was reiterated in the case of Mumo Matemu v. Trusted Society of Human Rights Alliance (supra). The Court of Appeal stated as follows;-“…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court…Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle.”

35. The respondents have argued that the Anarita principle was not complied with in this petition. That the petitioners just made general claims against the respondents. Upon perusal of the petition its noted that the petitioners have not set out provisions of the law that have allegedly been violated. Its only at paragraph 12 of the petition that they state as follows:-“In making this petition, the petitioners rely inter alia on Article 47(1) of the Constitution of Kenya, 2010 which states that,Every person has the right to administrative action that is expeditious, lawful, reasonable and procedurally fair.”Para 13“In pursuance of the above-mentioned provisions, the respondents are/is obligated to abide within the precincts of the constitution and constitutionalism. The decision pursued and the process attendant thereto flies the face of the law and violates the petitioners’ rights.”

36. Even the alleged violation of Article 47(1) has not been particularized, by the petitioners. The petitioners in their petition and submissions seem to blame a number of people for whatever they claim happened. At first they lay blame on the inspection of their buses by unknown persons who were accompanied by police officers. Next is the arrest of their drivers who were charged before Kericho and Kibera Law Courts with criminal charges. Its not even clear what has happened to the charges and the said drivers. Whether the cases have been heard and determined is not known, to this court.

37. The drivers are not parties to this Petition to be able to explain what may have happened to them. The director was not present and he is not here to agitate for the drivers’ rights.

38. The petitioners claim that the respondents have never notified them of the need to register their music instruments or any music played in their vehicles. Further that the radios in their vehicles were so fixed by the vehicle manufacturers. The petitioners have not cited any provisions of the law, that were breached by virtue of the inspection of the vehicles. It is not also clear from what is presented to this court what mistake or offence the respondents committed. The petitioners as users of copyrighted music have to ensure compliance with the law before playing music in their public service vehicles. There is no requirement for the respondents to notify them.

39. As stated in the Anarita and Mumo Matemo cases, pleadings play a key role in determination of the key issues in controversy. In this particular case the 1st respondent’s mandate under the copyright Act is not disputed. They carried out an inspection as authorized by the law. It was the duty of the petitioners to plead in their petition what the violation of the law was on this aspect.

40. All in all I find that the petition herein did not comply with the principle of setting out with a reasonable degree of precision the provisions allegedly violated and the manner in which they were allegedly infringed.

41. Even if for a moment the court were to overlook that, would one say that Article 47(1) of the constitution at paragraph 12 of the petition sets out anything specifically to show that the respondent’s actions were not expeditious, lawful, reasonable and procedurally fair? The petitioners failed to clearly set out in the petition what each respondent specifically did which was contrary to the law.

42. Was it unlawful for the 1st respondent’s officers to carry out an inspection under the Copyright Act? The Petitioners admit they have Music instruments and music is played in their buses. It is not the 1st respondent’s officers who arrested the drivers. They were arrested by police officers and lawfully so.

43. It has also been noted that the petition is not supported by any affidavit. A witness statement cannot replace an affidavit as it is not sworn.

44. Lastly there is nothing in the pleadings showing what right of the petitioners, the 2nd respondent violated and how it was violated.

45. The above being the position I find that:-i.The petition herein falls short of what is expected of a petition.ii.The petitioners have failed to demonstrate which rights if any were violated and how their said rights were allegedly violated.iii.The petitioners are not entitled to any of the reliefs sought.iv.The petition lacks merit and is dismissed with costs.Orders accordingly.

DELIVERED VIRTUALLY, SIGNED AND DATED THIS 17TH DAY OF MAY, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT