https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10225

Kigame & 2 others v Kenya Copyright Board & 8 others (Petition E332 of 2023) [2026] KEHC 10225 (KLR) (Constitutional and Human Rights) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10225 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E332 of 2023 PM Nyaundi, J July 9, 2026 IN THE MATTER OF: CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 2 (1) & (4), 10 (2) (b) & (d), 11 (2) (c), 27 (1) & (2) & 40 (5) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: CONSTITUTIONALITY OF SECTION 30 B OF THE COPYRIGHT ACT, 2001 AND IN THE MATTER OF: DISCRIMINATION OF A CATEGORY OF RIGHTS IN THE DISTRIBUTION OF A CATEGORY AND CLASS OF RIGHTS Between Reuben Kigame 1st Petitioner Celestine Wambui Mbogo 2nd Petitioner Stanley Ahoya 3rd Petitioner and Kenya Copyright Board 1st Respondent Kenya Trade Network 2nd Respondent Kenya Revenue Authority 3rd Respondent The Cabinet Secretary-youth, Sports And Arts 4th Respondent The Honourable Attorney General 5th Respondent and Performer Rights Society of Kenya 1st Interested Party Music Copyright Society of Kenya 2nd Interested Party Kenya Association of Music Producers 3rd Interested Party and Filmmakers Rights Achievers of Kenya Intended Interested Party Ruling 1.This ruling is with regard to Notice of Motion dated 31st October 2020 (sic) presented pursuant to Sections 1A, 1B, 3 & 3A of the Civil Procedure Rules, Order 12 Rule 7, Order 10, Order 51 rule 1 of the Civil Procedure Rules and the Constitution of Kenya (Protection of rights and fundamental freedoms) practice and procedure rules and the Constitution of Kenya, 2013. 2.The applicant seeks the reinstatement of a petition dismissed on 2nd October 2025 for want of prosecution. The applicants contend that the dismissal occurred in circumstances fundamentally inconsistent with the requirements of natural justice. They aver, “applicants were never served with a notice to show cause why this matter should be dismissed” and further, “this matter has never been set down for hearing”. 3.The application is supported by the affidavit of Reuben Kigame sworn on 31st October 2025. The affidavit reinforces these grounds by tracing the chronology of the matter from its filing in September 2023, through multiple mentions, to its eventual dismissal. The deponent explains that the petitioners changed advocates, discovered upon perusal of the court file that “no efforts had been taken to set this matter for trial”. 4.The 1st Respondent opposes the application and has filed affidavit sworn on 5th November 2025 by Paul Kaindo, its Acting Assistant Executive Director for Legal and Technical Services. He asserts that the dismissal of the petition was properly occasioned by the petitioners’ prolonged failure to progress their case, despite multiple mentions and a duly issued Notice to Show Cause. He maintains that the record demonstrates service of the notice, that the petitioners bore the continuing duty to set the matter down for hearing, and that their inaction from September 2023 to October 2025 was both unreasonable and prejudicial. He further contends that the legislative process referenced by the applicants did not bar them from prosecuting their matter, that attributing delay to former counsel is insufficient, and that reinstatement would undermine the public interest in finality and procedural discipline. 5.The 1st Interested Party has filed an affidavit in opposition sworn on 26 March 2026, by Joseph Njagih, the Chief Executive Officer of the Performers and Audio‑Visual Rights Society of Kenya. He maintains that the petition was rightly dismissed after a prolonged period of inactivity for which the petitioners alone were responsible. He explains that despite their former advocates ceasing to act in September 2024, the petitioners neither regularised their representation nor appeared during multiple mentions, and ultimately failed to respond to a duly issued Notice to Show Cause listed for 2 October 2025. He asserts that the record demonstrates proper service, that the petitioners’ claim of non‑service is inconsistent with the facts, and that attributing delay to former counsel cannot excuse their inaction. He concludes that reinstatement would undermine the disciplined conduct of litigation, prejudice other parties, and offend the principle that judicial proceedings must be prosecuted diligently and within a reasonable time 6.The 2nd Interested Party’s ground of opposition are dated 12th November 2025. The 2nd respondent urges that the motion discloses no lawful basis for the exercise of the Court’s discretion, noting that the applicants have offered no credible explanation for their absence during “the seven (7) consecutive mentions alluded to”. They argue that the threshold for reviving a matter dismissed for want of prosecution has not been met, and further observe that since there is a related matter pending, in which the Petitioners are participating, they will suffer no prejudice if the matter is not reinstated. 7.The Application was canvassed by written submissions. Analysis And Determination 8.Having considered the pleadings and submissions, the sole issue for determination is whether the Petition ought to be reinstated for hearing. That question, though procedural in posture, carries substantive weight: allowing it means that parties who assumed that they were freed of having to defend and participate in this Petition would be compelled to retrieve their files and proceed as though the Petitioner had never fallen into delay. It is not lost on the Court that reinstatement may impose renewed burdens on respondents who believed the matter concluded. Yet the Court must also remain attentive to whether the dismissal itself rested on a foundation that fully accords with the demands of justice. 9.The parties do not dispute that the Petition was dismissed for want of prosecution. The applicants seek to place responsibility on their former counsel, while the respondents and Interested Parties urge that the applicants have been indolent and therefore undeserving of the Court’s discretion. 10.The record shows that previous counsel applied to cease acting on the basis of insufficient instructions. The delay by the applicants is, candidly, not well explained. Ordinarily, such unexplained inertia would weigh heavily against reinstatement. And I would have dismissed the application but for one critical fact: upon reviewing the record more closely, I found that on 29 January 2024, this file was consolidated with Petition E361 of 2023, with this matter designated as the lead file. That order, clear on its face, was never implemented. The two matters have proceeded on separate tracks, contrary to the Court’s own directive. 11.It is now evident that Petition E361 of 2023 is slated for highlighting of submissions on 26 October 2026. Allowing this Petition to remain dismissed would fracture the intended unity of the consolidated matters and risk inconsistent or incomplete adjudication. The oversight in implementing the consolidation order is not attributable to the parties alone; it reflects a procedural lapse that the Court cannot ignore. 12.Rule 3(8) of the Constitution of Kenya (Protection of rights and fundamental freedoms) practice and procedure rules and the Constitution of Kenya, 2013 vests the Court with inherent jurisdiction to make orders necessary to advance the cause of justice. I therefore reinstate the Petition and direct that parties comply with filing timelines so that this matter is heard alongside Petition No. E361 of 2023 when it comes up for highlighting of submissions on 26 October 2026. SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF JULY, 2026.P.M. NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantAmutallah for Petitioners/ApplicantsKaindo for 1st RespondentNaliake holding brief for Okubasu for 2nd Interested PartyMburu for 1st, Interested PartyWeche for 5th Respondent