[2025] KEHC 369 (KLR)

Kirubi v Kenya Broadcasting Corporation (Civil Suit E042 of 2023) [2025] KEHC 369 (KLR) (Commercial and Tax) (23 January 2025) (Ruling)

Neutral citation: [2025] KEHC 369 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Civil Suit E042 of 2023

PM Mulwa, J

January 23, 2025

Between

Mwangi Kirubi

Plaintiff

and

Kenya Broadcasting Corporation

Defendant

Ruling

1. The Plaintiff by a plaint dated 3rd February 2023 sued the Defendant for violation of his Copy Right on his artistic works and photographs. The Defendants filed a Notice of Motion dated 5th February 2024 brought pursuant to Order 51 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, Section 46 of the Kenya Broadcasting Corporation Act and the Second schedule of the Copyright Act, and sought to dismiss/strike out the suit dated 3rd February 2023 for breach of the statutory limitation under Section 46 of the Kenya Broadcasting Corporation Act, and the Plaintiff to bear the costs of the application.

2. The application is premised on the grounds as outlined in the motion and supported by the affidavit sworn by Velma Kwanga on 5th February 2024. The Defendant takes the view that the claim is incompetent and statute barred for failure to comply with Section 46 of the Kenya Broadcasting Corporation Act.

3. The Plaintiff opposes the application vide the grounds of opposition and his sworn replying affidavit both dated 21st February 2024. He avers the infringement is still ongoing and as thus the claim is not statute barred. That the Defendant continues to monetize it’s You Tube page and infringe on his copyright.

4. The application was canvassed by way of written submissions. The Defendant filed submissions dated 27th February 2024 while the Plaintiff filed his submissions dated 5th March 2024.

5. The Defendant submits that the provisions of Section 46 of the Kenya Broadcasting Corporation Act are in mandatory terms and ought to be strictly adhered to. It also submits the suit violates Section 26 and the second schedule of the Copyright Act which provides that the exclusive rights under the Act do not include the right to control the reproduction and distribution of copies or the inclusion in an audio-visual work or broadcast or an artistic work situated in a place where it can be viewed by the public.

6. The Plaintiff on the other hand contends that the issuance of a notice to sue was not necessary as doing so would defeat the substratum of the suit. He argues Section 46 of the Kenya Broadcasting Corporation Act is unconstitutional and bad in law and the failure to comply does not render a suit incompetent. He cited the cases of: Council of Governors and 5 others v The Senate & Anor (2019) eKLR and Bob Thompson Dickson Ngobi v Kenya Ports Authority and others (2017) eKLR.

7. The Plaintiff further submits that the infringement is a continuous injury as the Defendant continues to use the infringed copyright on its news broadcast. Section 46 (b) of the Broadcasting Corporation Act provides that in instances of a continuous injury or damage, the action ought to be brought within six (6) months of the cessation of the continuing damage or injury. He cited the case of Thomas Kibe and 114 others vs Kenya Ports authority (2011) eKLR.

8. According to the Plaintiff the Defendant has misinterpreted the wording of “already lawfully made accessible to the public” of Section 26 of the Copyright Act. He states the subject photograph cannot be classified as an artistic work that was already lawfully made accessible to the public for reasons that; the Plaintiff did not utilize the subject photograph privately and free of charge, the subject photograph was not created strictly for a charitable or religious organization, the Plaintiff did not permit the use of the subject photograph to the Defendant and the use of the subject photograph prejudices the interest of the Plaintiff.

Determination 9. Section 46 of the Kenya Broadcasting Corporation Act provides as follows:Where any action or other legal proceeding is commenced against the Corporation for any act done in pursuance or execution, or intended execution of this Act or of any public duty or authority, or in respect of any alleged neglect or default in the execution of this Act or of any such duty or authority, the following provisions shall have effect:a.The action or legal proceeding shall not be commenced against the Corporation until at least one month after written notice containing the particulars of the claim and of the intention to commence the action or legal proceedings, has been served upon the Managing Director by the Plaintiff or his agent;b.The action or legal proceeding shall not lie or be instituted unless it is commenced within twelve months next after the act, neglect, default complained of or, in the case of a continuing injury or damage, within six months next after the cessation thereof.

10. I concur with the Defendant that the provisions of the above section are couched in mandatory terms. I also appreciate the fact that it is settled law that any provisions of law that hinders the right to access to justice under Article 48 of the Constitution is bad in law to that extent. In the case of Kenya Bus Service Ltd & Anor v Minister for Transport & 2 Others [2012] eKLR the court held as follows:‘‘The provisions for demanding prior notice before suing the Government is justified on the basis that the government is a large organization with extensive activities and fluid staff and it is necessary for it to be given the opportunity to investigate claims laid against it and decide whether to settle or contest liability taking into account the public expense. While the objectives are laudable, the effect of mandatory notice provisions cause hardship to ordinary claimants. I am aware that pre-litigation protocols, for example Order 3 Rule 2 of the Civil Procedure Rules, require that notice be given before action is commenced but the penalty for non-compliance is not to lose the right to agitate the cause of action but to be denied costs incurred in causing the matter to proceed to action.Viewed against the prism of the Constitution,…where the state is at the front, left and centre of the citize’s life, the law should not impose hurldes on accountability of the Government through the Courts. An analysis of the various reports from Commonwealth which I have cited clearly demonstrate that the requirement for notice particularly where it is strictly enforced as a mandatory requirement diminishes the ability of the citizen to seek relief against the government. It is my finding therefore that Section 13A of the Government Proceedings Act as a mandatory requirement violates the provisions of the Article 48 of the constitution.’’

11. I am persuaded by the above decision that indeed the mandatory provisions of the Section 46 of the Kenya Broadcasting Corporation Act serves as an impediment to justice and contradicts Article 48 of the Constitution. This court must be seen to do justice to the parties and ought to balance the rights of both parties in trial. The court will not shut parties from the seat of justice merely on a procedural technicality.

12. Further, the Court of Appeal in Council of Governors and 5 others v The Senate & Anor [2019] eKLR confirmed the above position when it held as follows:‘‘Next, we turn to whether failure to serve a 30 days’ notice as required by Section 13A of the Government Proceedings Act rendered the suit incompetent. Our view in respect of counsels’ assertion that the declaration by Majanja, J in the case of Kenya Bus Service Ltd & Another Minister for Transport & 2 Others (Supra), that the provision was unconstitutional is that, much as this may have been the case, the decision has not been overturned on appeal. It therefore remains a valid decision, and courts are at liberty to cite it with approval…, and therefore we find that the failure to comply with Section 13 A did not render the suit incompetent.’’

13. By dint of Article 159(2)(d) of the Constitution this court ought to administer justice without undue regard to procedural technicalities. The requirement of issuing a notice prior to instituting a claim against the Defendant as envisaged under Section 46 of the Kenya Broadcasting Corporation Act is procedural in nature, the failure to comply with the said procedure should not render a suit defective.

14. In the interest of justice this court makes a finding that the provisions of section 46 of the Kenya Broadcasting Corporation Act is in violation of Article 48 of the Constitution and therefore unconstitutional to that extent. The issue of failure to issue a notice therefore fails.

15. I will now turn to the issue on whether the suit is statute barred? The Defendant contends the suit has been filed 2 years after the complained infringement, whereas it ought to have been brought timely within a period of one year.

16. I have perused the record; the Plaintiff argues that the infringement is continuous and he attached a copy of the You tube excerpts of 21st February 2024 to prove the continuous infringement by the Defendant.

17. Section 46 (b) of the Kenya Broadcasting Corporation provides that in case of a continuous infringement the claim should be brought within 6 months after the cessation.

18. A person whose rights have been infringed should have some zeal and motivation to enforce his or her rights. The party should move the court in a timely manner. In the instant case, the claim was filed on 6th February 2023 during a time when the infringement subsisted. It cannot therefore be said the claim is filed outside the statutory timelines. In my view, the claim was brought timely.

19. The upshot is I find the Notice of Motion dated 5th February 2024 is bereft of merit. The same is dismissed with costs to the Plaintiff.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JANUARY 2025. P.M MULWAJUDGEIn the presence of:Mr. Odongo h/b for Mr. Akello for Plaintiff/respondentMr. Gitau for Defendant/applicantCourt Assistant: Carlos