https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12981

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEAL NO. E077 OF 2025** **MUSIC COPYRIGHT SOCIETY OF KENYA..................APPELLANT** **VERSUS** **KENYA COPYRIGHT BOARD...........................1ST RESPONDENT** **PERFORMING AND AUDIO VISUAL** **RIGHTS SOCIETY OF KENYA LTD………………..2ND RESPONDENT** **RULING** **A. Introduction** 1. Before this Court are three interlocutory applications filed pending the hearing and determination of the substantive appeal lodged by the Appellant against the Judgment of the Copyright Tribunal delivered on 17th November 2025 in Copyright Tribunal Appeal No. E003 of 2025. 2. The appeal arises from the decision of the 1st Respondent, the Kenya Copyright Board (KECOBO), refusing to grant the Appellant a licence to operate as a Collective Management Organisation (CMO) for the licensing period commencing 5th November 2025. The refusal was communicated vide a letter dated 14th October 2025 after the Board found that the Appellant had failed to satisfy the statutory requirements prescribed under Section 46 of the Copyright Act and the Copyright (Collective Management) Regulations, 2020. The Appellant challenged that decision before the Copyright Tribunal which dismissed the appeal and upheld KECOBO's decision on 17th November 2025. 3. Being dissatisfied with the Tribunal's determination, the Appellant lodged the present appeal before this Court together with two interlocutory applications one dated 10/12/25 and another dated 14/1/26, principally seeking, to preserve its ability to continue collecting royalties pending determination of the appeal, while the 1st Respondent filed an application dated 27/1/26 seeking to restrain the Appellant from undertaking any royalty collection on the ground that it lacks a valid statutory licence. 4. The three applications arise from substantially the same factual matrix and raise interrelated questions concerning the exercise of this Court's appellate jurisdiction, the grant of interlocutory injunctive relief, the availability of stay orders, and the balance between preservation of statutory regulation under the Copyright Act and protection of the proprietary interests of copyright holders pending appeal. Given their close nexus, the Court considers it appropriate to determine the three applications simultaneously. **B. The Background to the Dispute** 1. The material facts giving rise to the appeal are largely uncontested. The 1st Respondent is a State Corporation established under Section 3 of the Copyright Act and is charged, inter alia, with licensing and supervising Collective Management Organization’s pursuant to Sections 5(b), 46 and 48 of the Copyright Act. Via a letter dated 4th September 2025, it invited applications from entities wishing to operate as licensed CMOs for the licensing period commencing on 5th November 2025. 2. The Appellant submitted an application for licensing. Following evaluation, KECOBO, the 1st respondent concluded that the Appellant had not satisfied the mandatory statutory requirements governing licensing and communicated its decision rejecting the application by a letter dated 14th October 2025. The Board maintained that the Appellant had failed to comply with several mandatory licensing conditions under the Copyright Act and the Copyright (Collective Management) Regulations, 2020. 3. Aggrieved by that administrative decision, the Appellant appealed to the Copyright Tribunal in Copyright Tribunal Appeal No. E003 of 2025. On 17th November 2025, the Tribunal dismissed the appeal and affirmed the Board's decision declining to issue the licence. 4. The Appellant thereafter instituted the present appeal before this Court contending that both the decision of KECOBO and the Tribunal's judgment were unlawful, procedurally unfair, disproportionate and inconsistent with the Constitution and the Copyright Act. Simultaneously, it sought interim relief designed to preserve the status quo pending determination of the appeal. 5. The Respondents, on the other hand, contend that once the Tribunal affirmed the Board's decision, the Appellant ceased to possess any lawful authority to collect royalties or perform the statutory functions of a Collective Management Organisation. According to them, any continued collection of royalties by the Appellant amounts to an ongoing breach of Section 46 of the Copyright Act and ought to be restrained pending the determination of the appeal. **C. The Applications before the Court** 1. The Court is called upon to determine the following three applications: 2. ***The Appellant's Notice of Motion dated 10th December 2025;*** 3. ***The Appellant's Notice of Motion dated 14th January 2026; and*** 4. ***The 1st Respondent's Notice of Motion dated 27th January 2026.*** 5. Each application is summarized below. **I. The Notice of Motion Dated 10th December 2025** 1. The Motion is brought by the Appellant, Music Copyright Society of Kenya (MCSK) supported by the supporting affidavit of its chief executive officer, Richard Sereti. The Appellant principally seeks: An order staying the decision of the Kenya Copyright Board dated 14th October 2025 pending hearing of the application; Pending hearing of the appeal, temporary injunctions restraining both Respondents, their servants and agents, from interfering with the Appellant's collection and distribution of royalties and administration of copyright on behalf of its members; Stay of implementation of KECOBO's decision pending hearing and determination of the appeal and costs of the application. 2. The Appellant states that grounds are that: it represents over 15,000 authors, composers, publishers and copyright owners; the Tribunal's judgment has effectively paralysed its operations and deprived thousands of copyright holders of representation; unless interim protection is granted, its members will continue suffering irreparable prejudice; the intended appeal raises serious constitutional and statutory questions with overwhelming prospects of success and unless restrained, the Respondents will continue implementing an unlawful administrative decision thereby rendering the appeal nugatory. 3. Following the filing of the Respondents' replying affidavits, the Appellant filed a Further Affidavit dated 18th February 2026 reiterating that; the 2nd Respondent's affidavit selectively presents facts while ignoring broader regulatory failures; KECOBO has contributed to instability within collective management of copyright in Kenya; the refusal to license the Appellant has undermined the interests of copyright holders and weakened royalty collection; the Appellant continues to enjoy support from thousands of copyright owners and therefore deserves interim protection pending appeal. **II. The Notice of Motion Dated 14th January 2026** 1. This application is also brought by the Appellant. It principally seeks priority hearing and variation of directions earlier issued by this Court after the Appellant became apprehensive that the hearing date of 21/7/26 fixed by the Court would expose its members to continuing infringement of their copyright interests pending the hearing of the main Motion. It is supported by Dr. Duncan M. Okubasu, Advocate, who depones that urgent intervention was necessary because the earlier directions had deferred inter partes hearing to a later date despite continuing exploitation of the Appellant's repertoire **III. Notice of Motion Dated 27th January 2026** 1. The third application is brought by the 1st Respondent, Kenya Copyright Board. The application is supported by the affidavit of George Nyakweba, the Acting Executive Director of KECOBO. The application seeks temporary injunction restraining the Appellant, its servants, agents or any person acting on its behalf from: collecting; demanding; invoicing; receiving; levying royalties or licence fees from users of copyrighted works pending determination of the application and ultimately pending determination of the appeal. **D. Consolidation of the Applications** 1. Although filed by different parties and seeking different forms of relief, all three applications revolve around one central question: **Whether, pending determination of the substantive appeal, the Appellant should be permitted to continue exercising the functions of a Collective Management Organisation notwithstanding the Tribunal's decision affirming KECOBO's refusal to grant it a licence, or whether it should instead be restrained from collecting royalties until the legality of that decision is finally determined.** 1. The determination of that question necessarily requires consideration of the competing applications together, having regard to the statutory framework governing collective management of copyright, the principles governing interlocutory injunctions and stay pending appeal, and the public interest in orderly regulation of copyright administration. **RESPONSES TO THE APPLICATIONS AND THE PARTIES' SUBMISSIONS** **E. Responses to the Notice of Motion dated 10th December 2025** 1. The Appellant's application dated 10th December 2025 was opposed by both Respondents through replying affidavits and written submissions. **(i) The 1st Respondent's Response** 1. The 1st Respondent opposed the Motion through the Replying Affidavit sworn by **George Nyakweba**, the Acting Executive Director of the Kenya Copyright Board. 2. The deponent avers that the Kenya Copyright Board is established under Section 3 of the Copyright Act and is statutorily mandated under Sections 5(b), 46 and 48 of the Act to license and supervise Collective Management Organisations (CMOs). 3. He explains that following publication of the public notice inviting applications for CMO licences for the licensing period commencing 5th November 2025, the Appellant submitted its application which was evaluated against the mandatory statutory requirements contained in Section 46 of the Copyright Act and the Copyright (Collective Management) Regulations, 2020. The application was rejected because it failed to satisfy the prescribed licensing criteria. 4. The deponent further states that the Appellant appealed to the Copyright Tribunal, which upheld the Board's decision on 17th November 2025. Consequently, the Appellant presently has no licence authorising it to undertake the statutory functions of a Collective Management Organisation. 5. According to the 1st Respondent, despite the Tribunal's judgment, the Appellant has continued collecting royalties, issuing invoices and presenting itself as a duly licensed CMO, conduct which it terms unlawful and contrary to Section 46(12) of the Copyright Act. 6. The Board therefore contends that the Appellant cannot seek equitable relief from the Court while allegedly engaging in continuing statutory violations. 7. The Respondent further deposes that there is no executable decision capable of being stayed, the Appellant has not demonstrated any arguable appeal, the appeal will not be rendered nugatory if the orders sought are refused and lastly that the Court ought not issue orders whose effect would be to authorise conduct expressly prohibited by statute. **(ii) The 2nd Respondent's Response** 1. The Motion was similarly opposed through the Replying Affidavit sworn by **Joseph Njagi**, Chief Executive Officer of the 2nd Respondent (PAVRISK). 2. The deponent states that the Appellant applied for a licence but failed to satisfy the mandatory statutory conditions prescribed under Section 46 of the Copyright Act and Regulations 3 and 5 of the Copyright (Collective Management) Regulations. 3. Among the deficiencies identified were failure to submit audited financial statements, failure to submit annual returns and failure to pay prescribed statutory fees. 4. The deponent further avers that those findings were considered by the Copyright Tribunal which dismissed the Appellant's appeal and affirmed KECOBO's decision. 5. It is further deposed that the Appellant presently has no licence to administer copyright or collect royalties, the application seeks to obtain indirectly what the Appellant failed to obtain through the statutory licensing process, granting the orders sought would effectively authorise unlawful collection of royalties contrary to Section 46 of the Copyright Act, the Appellant continues issuing invoices despite lacking statutory authority and lastly that the continued use of the 2nd Respondent's name in certain invoices has caused confusion within the market. 6. The 2nd Respondent therefore maintains that the Appellant has not established a prima facie case, irreparable injury or any basis for grant of interlocutory injunctive relief. 7. Following service of the two replying affidavits, the Appellant filed a Further Affidavit sworn by Richard Sereti. The Appellant disputes virtually every allegation made by the Respondents. 8. It contends that the replying affidavits selectively present facts while omitting the wider regulatory challenges affecting collective management in Kenya; KECOBO has itself contributed to instability through inconsistent regulatory decisions; MCSK remains the oldest and largest collective management organisation representing more than 15,000 authors, composers and publishers; refusal to license MCSK has disrupted copyright administration nationwide; copyright owners continue to vest their rights in MCSK through assignment agreements; the refusal to grant a licence does not extinguish the underlying proprietary rights of authors protected under Article 40 of the Constitution and unless interim protection is granted, the appeal will be rendered academic because the music industry will be irreversibly restructured before the appeal is heard. 9. The Appellant also disputes allegations that it is fraudulently collecting royalties and contends that the Respondents have exaggerated alleged market confusion. **G. Parties' Written Submissions on the Motion dated 10th December 2025** **(i) Appellant's submissions** 1. The Appellant submits that the Court possesses jurisdiction to grant both stay and injunction pending appeal even where no express statutory provision exists, relying on its inherent jurisdiction and Sections 1A, 1B and 3A of the Civil Procedure Act. It argues that: the appeal raises substantial constitutional and statutory questions; the refusal to grant a licence fundamentally affects Article 40 property rights and Article 47 fair administrative action rights; unless protected, the appeal will be rendered nugatory because the copyright market will have been irreversibly reorganised before judgment and public interest favours preservation of existing royalty collection structures pending appeal. 2. The Appellant maintains that it has established: a prima facie case; irreparable injury; overwhelming prospects of success; and that the balance of convenience favours maintenance of the prevailing status quo. **(ii) 1st Respondent's submissions** 1. The 1st Respondent submits that the Motion is legally untenable. Its principal arguments are that: ***(a) the Appellant presently has no licence under Section 46 of the Copyright Act;*** ***(b) the Tribunal merely dismissed the appeal and therefore issued a negative order incapable of stay;*** ***(c) the Court cannot grant injunctive relief whose practical effect would be authorising continuing breach of statute;*** ***(d) only licensed CMOs may collect royalties;*** ***(e) permitting the Appellant to continue operating would undermine statutory regulation and public confidence in copyright administration;*** ***(f) the appeal has not been shown to be arguable or capable of being rendered nugatory.*** The Board urges dismissal of both the Motion and the substantive appeal. **(iii) 2nd Respondent's submissions** 1. The 2nd Respondent substantially supports the position taken by KECOBO, the 1st Respondent. It argues that: the licensing framework under Section 46 of the Copyright Act is mandatory; no person may lawfully operate as a Collective Management Organisation without a licence; the Appellant failed to satisfy the statutory licensing conditions; those findings have already been confirmed by the Copyright Tribunal; the Appellant's continued collection of royalties amounts to unlawful conduct which this Court ought not protect through equitable relief and public interest requires preservation of an orderly copyright licensing system pending determination of the appeal. **H. Response to the Notice of Motion dated 14th January 2026** 1. The Respondents did not file separate substantive replying affidavits directed specifically at this Motion. Instead, both Respondents treated the application as ancillary to the principal Motion dated 10th December 2025 and relied upon their replying affidavits opposing the substantive Motion and their written submissions already filed in opposition to interim relief. 2. Their position remained that no urgency capable of justifying alteration of the Court's earlier directions had been demonstrated and that the Appellant could not invoke urgency founded upon conduct which the Respondents maintained was itself unlawful. **I. Response to the Notice of Motion dated 27th January 2026** 1. The 1st Respondent's application seeking an injunction against the Appellant was opposed through two principal affidavits. **(i) Appellant's Replying Affidavit** 1. The Appellant opposes the Motion through the Replying Affidavit dated 10th February 2026 sworn by Richard Sereti. The Appellant contends that the application is intended to defeat the pending appeal by obtaining final relief at an interlocutory stage. 2. It argues that KECOBO is attempting to sidestep the appellate process; the Appellant's appeal raises substantial constitutional questions concerning Article 40, Article 47 and fair administrative action; refusal of a licence does not extinguish copyright owners' proprietary interests; KECOBO has failed to establish that MCSK is fraudulently collecting royalties; the alleged public confusion is exaggerated and can be addressed through regulatory communication rather than injunctive orders; and granting the injunction would irreparably prejudice over 15,000 authors, composers and publishers whose economic rights depend upon royalty collection. 3. The Appellant concludes that the balance of convenience overwhelmingly favours maintaining the existing arrangements until the appeal is determined. **(ii) 2nd Respondent's Replying Affidavit** 1. The 2nd Respondent filed a Replying Affidavit sworn by Joseph Njagih dated 12th February 2026 supporting KECOBO's application. It reiterates that the Appellant lacks statutory authority to collect royalties; the issue has already been conclusively determined by both KECOBO and the Copyright Tribunal; invoices continue to be issued notwithstanding absence of a licence; continued royalty collection exposes users to double payment and undermines confidence in the statutory licensing framework and the Court ought to restrain the Appellant pending determination of the appeal. **J. Parties' Written Submissions on the Motion dated 27th January 2026** **(i) 1st Respondent's submissions** 1. The 1st Respondent submits that the Motion satisfies the principles governing interlocutory injunctions. It argues that: a clear prima facie case has been established because the Appellant has no licence; irreparable harm will occur if unlawful royalty collection continues; the balance of convenience favours preserving the lawful regulatory framework and public interest strongly supports restraining unlicensed collection of royalties. 2. The Applicant further submits that permitting continued collection would amount to judicial approval of ongoing statutory breaches. **(ii) Appellant's submissions** 1. The Appellant urges dismissal of the Motion. It submits that KECOBO seeks final relief before determination of the appeal; the application effectively asks the Court to affirm the Tribunal's judgment before hearing the appeal; the Court ought instead to preserve the subject matter of the appeal by maintaining the existing position until the appeal is determined and public interest is best served by protecting the rights of thousands of authors and composers represented by the Appellant. **(iii) 2nd Respondent's submissions** 1. The 2nd Respondent supports the Motion and submits that statutory licensing under Section 46 is mandatory; only duly licensed CMOs may collect royalties; continuing collection without a licence is unlawful; the Appellant has failed to establish any legal entitlement to continue operating pending appeal and lastly that the Court should restrain further royalty collection until the appeal is heard and determined. 2. Conversely, the **Respondents** maintain that the Appellant has no lawful authority to operate as a Collective Management Organisation following the Tribunal's affirmation of KECOBO's licensing decision. They argue that the Court cannot, through interlocutory relief, sanction conduct prohibited by Section 46 of the Copyright Act, and that public interest requires preservation of the statutory licensing regime by restraining the Appellant from collecting royalties pending the appeal. **ISSUES FOR DETERMINATION AND APPLICABLE LEGAL PRINCIPLES** **L. Issues for Determination** 1. Having carefully considered the three applications, the responses thereto, and the extensive submissions filed by all the parties, the Court is of the considered view that the applications raise common questions of law and fact which may conveniently be determined together. 2. Although each application seeks distinct reliefs, the ultimate controversy revolves around whether the Appellant, whose application for licensing as a Collective Management Organisation (CMO) was rejected by the Kenya Copyright Board and whose appeal before the Copyright Tribunal was dismissed, should be permitted to continue exercising the functions of a CMO pending the hearing and determination of the substantive appeal, or whether it ought to be restrained from doing so. 3. In the Court's view, the following **issues arise for determination:** 4. ***Whether this Court has jurisdiction to grant the interlocutory reliefs sought pending the determination of the appeal.*** 5. ***Whether the Notice of Motion dated 10th December 2025 satisfies the legal threshold for:*** 1. ***stay pending appeal; and*** 2. ***injunction pending appeal.*** 6. ***Whether the Notice of Motion dated 14th January 2026 raises any independent issues requiring determination.*** 7. ***Whether the 1st Respondent has satisfied the requirements for grant of the temporary injunction sought in the Notice of Motion dated 27th January 2026.*** 8. ***Where the balance of convenience and public interest lie.*** 9. ***What orders ought to issue.*** 10. The Court shall consider each issue sequentially. **M. Applicable Legal Principles** **(i) Jurisdiction of the High Court Sitting as an Appellate Court** 1. The first issue concerns the Court's jurisdiction to entertain the interlocutory applications. 2. The appeal is brought from the Copyright Tribunal pursuant to Sections 21 and 48 of the Copyright Act. It is settled that once an appeal is properly before the High Court, the appellate court possesses incidental jurisdiction to make such interlocutory orders as may be necessary to preserve the subject matter of the appeal and ensure that the appeal is not rendered nugatory. 3. That jurisdiction flows from Article 165 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6, Order 40 of the Civil Procedure Rules and the Court's inherent jurisdiction. 4. The Supreme Court in **Board of Governors, Moi High School Kabarak & Another v Malcolm Bell (2013) eKLR** emphasized that courts possess inherent powers necessary to safeguard the administration of justice and preserve proceedings pending determination of disputes. It further reiterated that applications for injunction pending appeal form part of the common law and equitable jurisdiction received into Kenya through Section 3(1) of the Judicature Act, and where no express statutory procedure exists, Sections 3A of the Civil Procedure Act and the Court's inherent jurisdiction remain available. 5. The Court therefore finds, as a preliminary matter, that it possesses jurisdiction to entertain all three applications. **(ii) Principles Governing Stay Pending Appeal** 1. The Appellant seeks, among other reliefs, an order staying the decision of KECOBO pending determination of the appeal. The applicable law is principally found in Order 42 Rule 6 of the Civil Procedure Rules. The well-established principles require the Applicant to demonstrate; substantial loss; prompt filing of the application and lastly willingness to furnish security where applicable. 2. However, where the order sought to be stayed is not executable, a different consideration arises. The Court of Appeal has consistently held that **a negative order cannot be stayed because there is nothing capable of execution.** Among the leading authorities are: * **Western College of Arts and Applied Sciences (WECO) v Oranga & Others [1976] KLR**; * **Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2008] eKLR**; * **Raymond M. Omboga v Austine Pyan Maranga [2010] eKLR.** 1. These authorities establish that where a court merely dismisses proceedings without directing any positive act to be undertaken, there exists nothing capable of execution and therefore nothing capable of being stayed. 2. This principle assumes particular importance because both Respondents contend that the Copyright Tribunal merely dismissed the Appellant's appeal and therefore issued a purely negative order incapable of being stayed. Whether the Tribunal's judgment falls within that category is an issue the Court shall revisit during the substantive analysis. **(iii) Principles Governing Injunction Pending Appeal** 1. The Appellant equally seeks an injunction pending appeal while the 1st Respondent seeks a converse injunction restraining the Appellant. Although Order 42 Rule 6 expressly deals with stay, the jurisprudence regarding injunctions pending appeal has considerably evolved. Historically, courts relied upon their inherent jurisdiction. 2. In **Republic v Cabinet Secretary Ministry of Transport and Infrastructure & 4 others Ex-Parte Kenya Country Bus Owners Association & 8 others [2014] eKLR** the recognised that the High Court possesses jurisdiction to grant injunctions pending appeal where justice demands. The guiding principles substantially mirror those applied under Rule 5(2)(b) of the Court of Appeal Rules. 3. The Applicant ordinarily demonstrates: an arguable appeal; that absent the injunction the appeal would be rendered nugatory; and where appropriate, consideration of public interest. These principles were authoritatively discussed in: * **Patricia Njeri & 3 Others v National Museum of Kenya [2004] eKLR** * **Gatirau Peter Munya v Dickson Mwenda Kithinji & Others (Supreme Court).** 1. The Court will therefore evaluate whether the competing applications satisfy those principles. **(iv) Principles Governing Temporary Injunctions** 1. The Motion dated 27th January 2026 seeks a temporary injunction under Order 40. The applicable law remains settled. The classic test in **Giella v Cassman Brown & Co. Ltd [1973] EA 358** requires proof of: ***(a) a prima facie case with probability of success;*** ***(b) irreparable injury;*** ***(c) if in doubt, determination on the balance of convenience.*** 1. The Court of Appeal revisited and refined those principles in **Nguruman Limited v Jan Bonde Nielsen & Others [2014] eKLR**, emphasizing that the three requirements are sequential and not alternatives. Failure to establish a prima facie case ends the inquiry. 2. The Court stated that a prima facie case is not one which must succeed but one disclosing an apparently infringed legal right; irreparable injury refers to harm incapable of adequate compensation by damages and the balance of convenience only arises where the Court remains in doubt. 3. The definition of a prima facie case remains that stated in **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125**, namely: ***"A case which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed..."*** 1. Those principles equally inform the Court's determination of the Appellant's application seeking injunctive relief. **(v) Exercise of Judicial Discretion** 1. The grant or refusal of interlocutory relief is ultimately discretionary. However, judicial discretion is never exercised arbitrarily. The Supreme Court has repeatedly emphasized that judicial discretion must: advance substantive justice; be exercised upon sound legal principles and avoid determining the substantive appeal prematurely. 2. Similarly, the Court of Appeal in **Butt v Rent Restriction Tribunal [1982] KLR 417** observed that discretionary relief pending appeal should be exercised in a manner that neither renders the appeal nugatory nor prejudges its ultimate merits. 3. Consequently, while considering these applications, the Court must avoid making definitive findings upon contested issues reserved for the substantive appeal. **(vi) Public Interest** 1. An important dimension of this dispute concerns public interest. Unlike ordinary commercial disputes, this appeal concerns the statutory regulation of collective management organisations, collection of royalties and protection of copyright owners. Both sides invoke public interest. 2. The Appellant argues that over 15,000 authors, composers and publishers depend upon its operations and would suffer severe prejudice if restrained from administering their rights pending appeal. 3. Conversely, the Respondents contend that permitting an entity lacking a statutory licence to continue collecting royalties undermines the Copyright Act, exposes users to multiple payment claims and erodes confidence in the regulatory framework. 4. The Supreme Court in **Gatirau Peter Munya v Dickson Mwenda Kithinji & Others** **[2014] KESC 30 (KLR)** recognised that where litigation implicates public governance and statutory administration, courts must take into account the wider public interest alongside private rights. 5. The Court must therefore strike a careful balance between: preserving the efficacy of the statutory licensing regime; protecting constitutional and proprietary rights asserted by copyright holders and ensuring that neither the appeal nor the regulatory framework is rendered futile by interlocutory orders. **N. Whether the Notice of Motion dated 10th December 2025 is Merited** 1. The Appellant seeks, principally, an order staying the decision of the Kenya Copyright Board dated 14th October 2025 and temporary injunctive orders restraining the Respondents from interfering with its collection and distribution of royalties pending the hearing and determination of the appeal. 2. The Respondents oppose the application on the grounds that the Appellant has no valid licence under Section 46 of the Copyright Act, that the Tribunal merely dismissed the Appellant’s appeal and therefore issued a negative order incapable of stay, and that the Court cannot sanction continued collection of royalties in the absence of statutory authority. 3. The Court shall consider the prayers for stay and injunction separately. **(a) Whether the Tribunal’s Judgment is Capable of Stay** 1. The Appellant seeks a stay of the decision of KECOBO dated 14th October 2025. By the time the present appeal was lodged, however, that administrative decision had already been considered and affirmed by the Copyright Tribunal in its Judgment delivered on 17th November 2025. The operative judicial decision now challenged before this Court is therefore the Tribunal’s judgment. 2. The Respondents submit that the Tribunal merely dismissed the Appellant’s appeal and consequently made a negative order incapable of execution. I agree. In Western College of Arts and Applied Sciences (WECO) v Oranga & Others [1976] KLR, the Court of Appeal held that where a court merely dismisses proceedings, no positive obligation arises capable of execution and there is consequently nothing capable of being stayed. The same principle was reaffirmed in Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah [2008] eKLR and Raymond M. Omboga v Austine Pyan Maranga [2010] eKLR. 3. Having considered the Tribunal’s judgment as described in the record before this Court, I find that it dismissed the Appellant’s appeal and upheld the decision of KECOBO. No positive decree requiring execution has been demonstrated. The prayer for stay is therefore incompetent in the circumstances and cannot succeed. 4. For avoidance of doubt, the foregoing conclusion concerns only the prayer for stay. It does not determine whether the Court may, in an appropriate case, grant independent interlocutory injunctive relief to preserve the subject matter or effectiveness of an appeal. That question falls for separate consideration below. **(b) Whether the Court Should Grant an Injunction Pending Appeal** 1. The Appellant alternatively seeks temporary injunctions restraining the Respondents from interfering with its collection and distribution of royalties pending determination of the appeal. An injunction is a distinct equitable remedy and must be considered on its own principles. The Court accepts that the appeal raises substantial questions regarding the interpretation and application of Section 46 of the Copyright Act, the legality of KECOBO’s licensing decision, alleged procedural unfairness and constitutional questions touching on Articles 40 and 47. 2. An arguable appeal does not mean one that must necessarily succeed. As stated by the Court of Appeal in Stanley Kang’ethe Kinyanjui v Tony Ketter & Others [2013] eKLR, an arguable appeal is one which raises at least one bona fide point deserving judicial consideration. The present appeal plainly raises questions deserving determination. That, however, is not the end of the inquiry. 3. The nature of the positive relief sought is material. The Appellant asks the Court to restrain the Respondents from interfering with its collection and distribution of royalties, notwithstanding that KECOBO declined its application for a licence and the Copyright Tribunal subsequently affirmed that decision. In practical terms, the order sought would place the Appellant in a position to continue exercising functions for which the licensing authority has presently declined to authorize it. 4. The Appellant contends that its members’ underlying proprietary rights survive independently of the licensing decision. That contention may require determination in the substantive appeal. At this interlocutory stage, however, the Court must distinguish between the existence of underlying copyright interests and the statutory authority to exercise the functions of a Collective Management Organisation on behalf of users of copyrighted works. 5. The present regulatory position is that KECOBO declined the licence, the Copyright Tribunal upheld that decision, and no subsequent licence has been shown to have been issued to the Appellant. Those decisions have not been set aside. The Court must approach the interlocutory applications on that existing legal position without expressing a final view on whether the refusal of the licence was lawful. 6. The difficulty facing the Appellant is therefore not merely that the injunction may affect the outcome of the appeal. It is that the order sought would confer upon the Appellant, for the duration of the appeal, the practical authority to continue performing statutory functions which the licensing authority has declined to authorize and which decision has subsequently been affirmed by the Copyright Tribunal. 7. The Court should be slow to issue an interlocutory order which has the practical effect of conferring the equivalent of a statutory licence where none presently exists, particularly where the legality of the refusal to issue that licence constitutes the central question in the substantive appeal. 8. I therefore find that, although the appeal is arguable, the Appellant has not demonstrated a sufficient basis for the positive injunctive relief sought. The injunction would materially alter the existing regulatory position pending determination of the very question whether the Appellant was entitled to be licensed. The prayer for injunction accordingly fails. **II. Whether the Notice of Motion dated 14th January 2026 is Merited** 1. The second application principally sought variation of earlier directions and priority hearing of the Motion dated 10th December 2025. Following the filing of that application, the substantive Motion dated 10th December 2025 was fully canvassed through affidavits and written submissions by all parties and has now fallen for determination together with this ruling. 2. The procedural relief sought has therefore been overtaken by events and serves no remaining practical purpose. The application is accordingly dismissed as spent. No separate determination of its merits is necessary. **III. Whether the Notice of Motion dated 27th January 2026 is Merited** 1. The 1st Respondent seeks a temporary injunction restraining the Appellant from collecting, demanding, invoicing, receiving or levying royalties pending determination of the appeal. The application is founded upon allegations that the Appellant continues collecting royalties despite lacking a valid statutory licence. The Appellant disputes those allegations and argues that the relief would effectively determine the appeal before hearing. The Court therefore applies the principles in Giella v Cassman Brown & Co. Ltd [1973] EA 358, Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 and Nguruman Limited v Jan Bonde Nielsen & Others [2014] Eklr. **(a) Prima Facie Case** 1. The material before the Court establishes, prima facie, that the Appellant’s application for a licence was declined by KECOBO, that the Copyright Tribunal affirmed that decision, and that no subsequent licence has been shown to have been issued to the Appellant. Those matters are not disputed. The Appellant maintains that the decisions are unlawful, a question reserved for the substantive appeal. 2. The Respondent has further placed before the Court evidence alleging that, notwithstanding the absence of a licence, the Appellant has continued to invoice users and collect royalties. The Appellant disputes that conduct and its legal consequences. At this interlocutory stage, I need not make a final finding on the disputed factual allegations. It is sufficient that the Respondent has demonstrated a prima facie basis for contending that the Appellant is exercising statutory functions which, under the licensing regime, require authorization. **(b) Irreparable Harm** 1. The injury relied upon by the 1st Respondent is not merely financial. Its complaint concerns the continued exercise of statutory functions without the licence contemplated by the statutory framework, with the attendant risk of regulatory uncertainty and competing claims upon users of copyrighted works. Such consequences are not readily measurable or adequately remedied by an award of damages after the appeal. 2. The Appellant, on the other hand, contends that thousands of authors, composers and publishers depend upon it for royalty collection and would suffer financial prejudice if it is restrained. The Court does not discount that concern. However, the material before the Court does not demonstrate that any financial loss occasioned by the interim restraint would necessarily be incapable of compensation or other appropriate relief should the appeal ultimately succeed. 3. I therefore find that the requirement concerning irreparable harm has, in the circumstances, been satisfied. **(c) Balance of Convenience and Public Interest** 1. The balance of convenience presents a more difficult question because both sides invoke competing public interests. The Appellant relies on the interests of copyright owners whose works form part of its repertoire. The 1st Respondent relies on the integrity of the statutory licensing regime and the need for users to know which entities are lawfully authorized to undertake collective management functions. 2. At this interlocutory stage, the Court is not called upon to determine whether KECOBO acted correctly in refusing the licence. The question is which position better preserves the existing regulatory framework and the effectiveness of the appeal without prejudging its merits. 3. In my view, the balance of convenience favours preservation of the existing regulatory position. The Appellant presently has no licence, and the refusal of its application has been affirmed by the Copyright Tribunal. Granting the Appellant positive authority to continue operating as a CMO would alter that position, whereas restraining the exercise of functions requiring a licence merely maintains the position resulting from the existing licensing decisions pending appeal. 4. Public interest points in the same direction. Copyright holders require effective administration and protection of their economic rights. Equally, the public has a legitimate interest in ensuring that entities which undertake statutory collective management functions comply with the licensing framework enacted by Parliament. The Court must not, through an interlocutory order, create regulatory uncertainty or confer the practical equivalent of a licence where the licensing question remains pending before the appellate Court. 5. For avoidance of doubt, this finding does not determine the legality or merits of KECOBO’s refusal of the licence. Nor does it extinguish or adjudicate any proprietary, contractual or other rights which individual copyright owners may have. It is confined to the interlocutory position pending determination of the appeal. **IV. Overall Conclusion on the Three Applications** 1. Having considered the three applications, the affidavits, annexures, rival submissions and the applicable principles, I reach the following conclusions: 2. ***The Motion dated 10th December 2025 fails in respect of the prayer for stay because the Tribunal’s judgment, being a dismissal of the Appellant’s appeal without a positive executable order, is incapable of stay. The alternative injunction also fails because the positive relief sought would materially alter the existing regulatory position by permitting the Appellant to exercise functions for which it presently has no licence.*** 3. ***The Motion dated 14th January 2026 has been overtaken by events following the hearing and determination of the substantive Motion dated 10th December 2025 and is therefore spent.*** 4. ***The Motion dated 27th January 2026 satisfies the requirements for an interlocutory injunction. The order is necessary to preserve the existing regulatory position pending determination of the appeal and does not constitute a final determination of the legality of KECOBO’s decision or the Tribunal’s judgment.*** 5. ***Nothing in this ruling should be construed as a determination that KECOBO’s decision or the Copyright Tribunal’s judgment is ultimately correct. Those questions remain open for determination in the substantive appeal. Equally, nothing in this ruling extinguishes or diminishes the proprietary or contractual rights of individual copyright owners; those rights are not the subject of final determination in these interlocutory proceedings.*** 6. ***Given the national regulatory implications of the dispute and the competing interests of copyright owners, users and the regulatory authority, the substantive appeal ought to be heard and determined expeditiously.*** **Final Orders** 1. Accordingly, the Court makes the following orders: ***1. The Notice of Motion dated 10th December 2025 is hereby dismissed.*** ***2. The Notice of Motion dated 14th January 2026 is hereby dismissed as having been overtaken by events.*** ***3. The Notice of Motion dated 27th January 2026 is hereby allowed.*** ***4. Pending the hearing and determination of the substantive appeal, the Appellant, whether by itself, its servants, agents, officers or any person acting under its authority, is restrained from holding itself out as a licensed Collective Management Organisation or from undertaking the statutory functions of a Collective Management Organisation, including collecting, demanding, invoicing, receiving or levying royalties or licence fees from users of copyrighted works, where the exercise of such functions requires a licence under Section 46 of the Copyright Act.*** ***5. For avoidance of doubt, this order does not determine or extinguish any proprietary, contractual or other rights which individual copyright owners may have against the Appellant or against users of copyrighted works.*** ***6. The orders granted herein are purely interlocutory and shall remain in force pending the hearing and determination of the appeal or until further orders of this Court.*** ***7. The Deputy Registrar shall forthwith give priority to the preparation of the record and list the appeal for case management on a priority basis, with a view to securing its expeditious hearing.*** ***8. The costs of the Notice of Motion dated 10th December 2025 and the Notice of Motion dated 14th January 2026 shall be borne by the Appellant.*** ***9. The costs of the Notice of Motion dated 27th January 2026 shall abide the outcome of the appeal.*** Order accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF AUGUST, 2026.** **HON. L. P. KASSAN** **JUDGE**