[2017] KEHC 1099 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CONSTITUTIONAL PETITION NO. 3B OF 2017

LABAN JUMA TOTO.......................................................................................1ST PETITIONER

DAVID AMUNGA..............................................................................................2ND PETITIONER

VERSUS

THE KENYA COPYRIGHT BOARD................................................................1ST RESPONDENT

THE HON. ATTORNEY GENERAL...............................................................2ND RESPONDENT

AND

MUSIC COPYRIGHT SOCIETY OF KENYA.......................................1ST INTERESTED PARTY

MUSIC PUBLISHERS ASSOCIATION OF KENYA...2ND INTERESTED PARTY/APPLICANT

R U L I N G NO. 4

Introduction

1. By the notice of motion dated 23. 10. 2017 brought pursuant to Rule 25 of the Constitution of Kenya (Protection of Fundamental Rights and Freedom) Practice and Procedures Rules 2013, [The Mutunga Rules] the 1st Interested Party, who is Music Copyright Society of Kenya is seeking orders of stay and discharge of the exparte- order issued by this court on the 19. 10. 2017 together with costs. The application is based on the grounds stated on the its face and it is supported by the affidavit of one MERIT SIMIYU

2. Briefly the grounds upon which the application is hinged are that the orders issued by this court on the 19. 10. 2017 are in conflict with the orders issued on the 25. 07. 2017 which are still equally in force, and that this has resulted in an outright inconsistency in the effect of the said orders and administration of justice in these proceedings. The 1st interested party claims that the 1st respondent deliberately failed to disclose to the court the existence of the earlier consent order made on 25. 07. 2017. The 1st interested party therefore says the 1st respondent is guilty of coming to court with soiled hands.

3. Accordingly, the 1st interested party contends that having failed to demonstrate equity, the 1st Respondent cannot continue to benefit from the equitable jurisdiction of this Honourable Court. They claim that the 1st respondents have abused the court process in obtaining orders against them (1st interested party). The 1st interested party also claims that they stand to suffer significantly unless the orders of 19. 10. 2017 are discharged by restraining the 1st respondent from collecting royalties and administering them on behalf of its members. The 1st Interested Party also contends that if the order sought is not granted, then the effect would be that the copyrighted content being the property of the members of the 1st respondent would be used for free by members of the public at the expense of the rightful owners of the copyrighted content.

Grounds of opposition

4. The 2nd interested party filed ten grounds of opposition to the notice of motion dated 23. 10. 2017. The court has carefully read through the same and finds no reason for reproducing the same herein, except to say that in the mind of the 2nd Interested Party, this matter should first be referred to the Chief Justice as directed on 19. 10. 2017 and second that the petitioners will suffer no prejudice if the orders sought are not granted, since the 2nd Interested Party is bound by the Law and copyright regulations to serve the interest of all copyright holders – see Nairobi HCC Constitution Petition No. 350 of 2015 and Nairobi HCC Constitutional Petition No. 317 of 2015.

Submissions

5. Parties canvassed the application orally on the 7. 11. 2017. In his submissions, Mr. Matete for the petitioner claimed that they were not served with the application which gave rise to the impugned ruling of 19. 10. 2017. He also submitted that the application dated 15. 05. 2017 proceeded for hearing in their absence yet, it had not been scheduled to proceed on that day. He further submitted that since a number of directions had been given, the application dated 25. 05. 2017 should not have been isolated for hearing on 11. 10. 2017. In Counsel’s view, there was mischief by counsel who urged the application in the absence of some of the parties in this matter. Mr. Matete urged the court to allow the application.

6. Mr. Maloba for 1st interested party and M/s. Rauto for 3rd and 11th interested parties associated themselves with the submissions of Mr. Matete for the petitioners, and urged the court to allow the application as prayed.

7. In his submission Mr. Kaindo objected to the application. He submitted that the petitioners as well as the 1st interested party were given ample time to respond to the application but they failed to do so. He added that overturning the ruling of 19. 10. 2017 would create more confusion in the music industry. Mr. Asewe for the 2nd interested party also opposed the application. He maintained that the application was defective as it contained a misrepresentation of facts. He submitted that no prejudice will be suffered by the petitioners if the orders of 19. 10. 2017 are not set aside. He adds that no benefits will accrue to the 3rd – 11th interested parties if the orders are reversed.

Determination

8. On 19. 10. 2017, and by a separate ruling, this court directed that since this suit raises substantial issues of law, it is to be placed before the Hon. The chief justice to consider empaneling a bench of more than one judge to hear and determine the s aid issues. In light of the above, and considering the fact that there will be no winners and losers in this matter until the real issues in controversy are determined, this court is of the humble view that no benefit or prejudice will accrue to the petitioners by this court reversing its orders of 19. 10. 2017. The reasons for this conclusion are that there are similar cases in other courts, and in particular Constitutional Petition No. 11 of 2017 at Kisumu in which the 1st Respondent herein has been restrained from demanding and collecting royalties for exploitation of song writers, composers, publishers and arrangers of copyrighted musical works. This court’s orders of 19. 10. 2017 have a similar effect. Secondly, this court is also of the considered view that the cat and mouse games played by counsel in this matter shall only come to an end if the matter goes to full hearing of the main petition.

9. It should however, go on record that he above is not to say that this court condones the conduct of counsel for the 1st and 2nd Respondents who have been less than candid on more than one occasion in presenting the facts of this case to the court, nor does it mean that the court is not alive to the facts of this case that the petitioners were not present in court on 11. 10. 2017

10. For the reasons given above, I decline to grant the application dated 23. 10. 2017. I accordingly strike it out so that the applicants are at liberty to file a similar application if they find it necessary for consideration by the bench to be empaneled by the Hon the Chief Justice. There shall be no order as to costs.

11. In the meantime this file shall be forwarded to the Hon. The Chief Justice immediately as per this court’s separate ruling dated 19. 10. 2017

Orders accordingly,

Ruling delivered, dated and signed in open court at Kakamega this 6th day of December,2017

RUTH N. SITATI

JUDGE

In the presence of;-

……Mr. Matere (Present)..……..………………………..……For Petitioners

……Mr. Kaindo.…………………………………………...…For Respondents

……Mr. Maloba……..………………………….….… For 1st Interested Party

……Mr. Kaindo holding brief……………….. 2nd Interested Party/Applicant

……Polycap…….………………………………………….……Court Assistant