[2024] KEHC 10278 (KLR)

Lutumba v Tamasha Corporation Limited & 7 others (Civil Case E116 of 2022) [2024] KEHC 10278 (KLR) (Commercial and Tax) (15 August 2024) (Ruling)

Neutral citation: [2024] KEHC 10278 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Civil Case E116 of 2022

PM Mulwa, J

August 15, 2024

Between

Muzinga Laure Lutumba

Plaintiff

and

Tamasha Corporation Limited

1st Defendant

Liberty Afrika Limited

2nd Defendant

Xpedia Limited

3rd Defendant

Safaricom Limited

4th Defendant

Kenya Association of Music Producers

5th Defendant

Mdundo Kenya

6th Defendant

Boom Play

7th Defendant

Apple t/a Itunes

8th Defendant

Ruling

1. The following applications by way of Notices of Motion are before the court for determination:i.1st defendant’s application dated 6th June 2022ii.2nd and 3rd defendants’ application dated 25th May 2022iii.6th defendant’s application dated 11th March 2024iv.7th defendant’s application dated 9th June 2022v.8th defendant’s application dated 3rd June 2022.

2. In the applications, the defendants respectively prayed for an order to strike out the instant suit on the grounds that the plaintiff lacks the capacity to institute the suit and further that the plaint does not disclose a reasonable cause of action against the defendants.

3. The plaintiff filed replying affidavits sworn by herself in opposition to the aforementioned applications.

4. She contended that she filed the instant suit as the administrator of her late father’s estate and with full mandate to pursue the royalties of her father’s music from all over the world; that the defendants are actively engaged in selling and distributing her late father’s musical works without authority and that the plaint discloses reasonable causes of action against the defendants with regard to the alleged infringement of her late father’s intellectual property rights.

5. In response to the applications, the plaintiff asserted that the defendants were hiding behind procedural technicalities to avert substantive justice as stipulated under article 159(2) (d) of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act.

Analysis and determination 6. The court has considered the pleadings and written submissions filed in this matter.

7. I will start by determining the issue of whether the plaintiff has the locus standi to file the suit herein.

8. The plaintiff instituted this suit vide a plaint dated 4th April 2022, as administrator of the estate of the late Simon Lutumba Ndomanueno seeking to protect her deceased father’s musical works from infringement by the defendants.

9. She claimed that the defendants had been selling the musical creations of the deceased without any right to do so. The plaintiff prayed inter alia for $ 10,000,000 as damages.

10. To prove that she is the administrator of her late father’s estate, the plaintiff relied on a grant of representation issued in the Democratic Republic of Congo (DRC). It is produced as exhibit ‘LLN-1’ in the supporting affidavit sworn on 4th April 2022.

11. Section 77(1) of the Law of Succession Act states:“Where a court or other authority, having jurisdiction in matters of probate or administration in any Commonwealth country or in any other foreign country designated by the Attorney-General by notice in the Gazette, has, either before or after the commencement of this Act, granted probate or letters of administration, or an equivalent thereof in respect of the estate of a deceased person, such grant may, on being produced to, and a copy thereof deposited with the High Court, be sealed with the seal of that court, and thereupon shall be of like force and effect, and have the same operation in Kenya, as if granted and confirmed by that court.”

12. In this case, the DRC, where the grant was allegedly issued, is not a member of the Commonwealth, there is also no evidence that it was designated by the Attorney General by notice in the Gazette in order for the grant to be sealed and have the force and effect as if granted by this court.

13. Even if the conditions mentioned above were met, the plaintiff has not demonstrated, or otherwise adduced any evidence to prove that the said grant of representation had been resealed in Kenya in accordance with section 77(1) of the Law of Succession Act.

14. In the case of Kipngetich Kalya Kones (Suing as the Administrator of the estate of Kipkalya Kiprono Kones (deceased) v Wilson Kiplangat Kones [2021]e KLR it was held:“The issue of locus standi being a point of law which goes to the root of any suit, its absence therefore renders a suit fatally defective. The issue of the lack of locus standi cannot therefore be termed as a mere technicality as the Plaintiff/Respondent herein would want us to believe and therefore the provisions of Article 159 (2) (d) of the Constitution cannot in the present circumstance salvage this suit. For this reason, I strike out the suit.”

15. In the absence of a valid resealed foreign grant of representation, the plaintiff lacks locus to file this suit on behalf of her late father. This means that the suit is fatally defective and on this ground alone this suit is struck out with costs.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 15TH DAY OF AUGUST 2024. P. MULWAJUDGEIn the presence of:Mr. Osendi for PlaintiffMr.Odiero for 1st DefendantMr. Imbuga for 2nd & 3rd DefendantsMr. Opole for 4th DefendantMr. Bowry for 6th DefendantMr. Lwande for 7th DefendantMr. Odhiambo h/b for Mr. Karuti for 8th DefendantCourt Assistant: Lilian