[2015] KEHC 1081 (KLR)
The conviction was quashed because the prosecution was conducted by a person not duly appointed for purposes of the Copyright Act, rendering the proceedings incompetent. Additionally, there was no evidence presented to prove the existence of the copyright allegedly infringed or that the confiscated equipment...
Source-derived case information.
- Citation
- [2015] KEHC 1081 (KLR)
- Parties
- Appellant: John Muchora Mwangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 275 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; fine to be refunded
- Judges
- DW Mbuteti
- Legal Topics
- Copyright Infringement, Prosecutorial Appointment, Burden of Proof, Evidence of Copyright
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Muchora Mwangi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the prosecutor was duly and specifically appointed for purposes of the Copyright Act.
- 2 Whether there was sufficient evidence of the existence of the copyright allegedly infringed.
- 3 Whether the evidence established that the confiscated equipment contained infringing music belonging to the complainant.
Ratio Decidendi
The conviction was quashed because the prosecution was conducted by a person not duly appointed for purposes of the Copyright Act, rendering the proceedings incompetent. Additionally, there was no evidence presented to prove the existence of the copyright allegedly infringed or that the confiscated equipment contained infringing material. The cumulative effect of these deficiencies meant that the offence was not proved beyond reasonable doubt, making the conviction unsafe. The respondent properly conceded the appeal, and the court found no basis to uphold the conviction or sentence.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; fine to be refunded
Orders
- The appeal is allowed in its entirety.
- The conviction of the appellant is quashed.
Full Case Text
Judgment text and source record
16 paragraphs
IN THE HIGH COURT OF KENYA AT MURANG’A
CRIMINAL APPEAL NO 275 OF 2013
(Appeal from Conviction and Sentence in Kangema PM Criminal Case No 374 of 2012 – A Too, RM )
JOHN MUCHORA MWANGI………………..………APPELLANT
VERSUS
REPUBLIC...........................................................RESPONDENT
J U D G M E N T
1. The Appellant John Muchora Mwangi, was convicted after trial of the alternative charge of By way of Trade Exposed Infringing Copies of a Copyright Work contrary to section 38(1) (b) as read with section 38(5)of the Copyright Act, 2001”. It was alleged in the particulars of the offence that on the 13th day of August 2012 at Kanyenyaini Trading Centre in Kangema District within Murang’a County, he was found have made for sale infringing copies of local music copyright work of the Assignors John Njagi Macharia, in contravention of the provisions of the Copyright Act. He was fined KShs 50,000/00 and in default of payment to serve 12 months imprisonment. He paid the fine. He has appealed against both conviction and sentence.
2. The main ground of appeal disclosed in the petition and in the submissions of learned counsel for the Appellant is that the prosecutor had not been duly and specifically appointed for purposes of the Copyright Act, Cap 30 and was thus incompetent to prosecute the Appellant. That point is conceded by the Respondent.
3. Learned Prosecution Counsel for the Respondent also pointed out that infringement of copyright under sections 35 and 38 of the Act presupposes existence of a copyright, and that in this case there was no evidence of existence of the copyright allegedly infringed by the Appellant. Learned Prosecution Counsel also pointed out that there was no evidence placed before the trial court that the equipment confiscated from the Appellant (computers, memory sticks, etc.) contained any music belonging to the complainant.
4. Upon my own assessment of the evidence placed before the trial, court I am not satisfied that the same was sufficient to sustain the conviction. The offence charged was not proved beyond reasonable doubt. The conviction is unsafe and cannot be allowed to stand. Learned Prosecution Counsel properly conceded the appeal.
5. I will in the event allow the appeal in its entirety. The conviction of the Appellant is quashed and the sentence set aside. The fine imposed, if paid, shall be refunded to the Appellant. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 18TH DAY OF NOVEMBER 2015
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 27TH DAY OF NOVEMBER 2015