https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12727

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO E376 OF 2021** **MUSIC COPYRIGHT SOCIETY OF KENYA .........................................PETITIONER** **AND** **THE INSPECTOR GENERAL OF POLICE .....................................1ST RESPONDENT** **THE HONOURABLE ATTORNEY GENERAL...................................2ND RESPONDENT** # JUDGMENT 1. By a Petition dated 21st September 2021, supported by an affidavit sworn by Mr Lazarus Muli, the Music Copyright Society of Kenya moved this Court seeking the following orders: 2. ***A DECLARATION that the decision of the 1st Respondent to withdraw police enforcement/support towards the Petitioner in the enforcement of intellectual property rights of authors, composers, arrangers and publishers of musical works, and the consequent failure of the State to enforce the rights of the Petitioner's members, contravenes Articles 10, 11(2), 28, 40(5), 43, 47 and 73(1)(a) of the Constitution, read together with sections 39(2), 40, 41 and 42 of the Copyright Act, 2001, and is therefore unconstitutional;*** 3. ***A DECLARATION that the Petitioner is entitled to the services, assistance and support of officers of the National Police Service in the enforcement of intellectual property rights;*** 4. ***An ORDER directing the Respondents to formulate, within a prescribed period, a framework governing the systematic manner in which National Police Service support shall be rendered to the Petitioner in the enforcement of intellectual property rights;*** 5. ***Costs of the Petition; and*** 6. ***Any other relief this Court may deem just to grant.*** 7. The Petition was opposed by the 1st Respondent through a Replying Affidavit sworn by Titi Ayiera, Assistant Inspector General of Police, dated 19th November 2024. Both parties thereafter filed written submissions # Background 1. The Petitioner is a Collective Management Organization duly incorporated as a company limited by guarantee and licensed under the Copyright Act, 2001 to administer copyright for both its resident and non-resident members. 2. The Petitioner does not itself possess statutory powers of entry, search, seizure or arrest. It relies on the assistance of police officers to act as inspectors of copyright under section 39(2) of the Copyright Act, and under sections 40, 41 and 42 of the Copyright Act to enter and inspect premises, seize infringing items, arrest offenders and to accompany and support its enforcement operations. 3. On or about August 2019, the 1st Respondent issued a directive withdrawing National Police Service officers who had been accompanying and assisting the Petitioner in its enforcement operations. It is common ground that this directive was issued without prior consultation with the Petitioner. 4. The Petitioner avers that the withdrawal of National Police Service officers has had a material effect on compliance. The Petitioner states that 18,296 users of musical works were duly notified of their obligations under the Copyright Act, and that, at the time of filing the Petition, only 7,806 had complied with those obligations. The Petitioner states that this figure is exclusive of public service, tourist service vehicles and commercial vehicles. 5. The 1st Respondent avers in paragraph 7 of the Affidavit that the directive was indeed issued, and he explains that it arose from numerous complaints from traders, advocates and other government agencies alleging that certain police officers, during operations conducted alongside the Petitioner, engaged in extortion and harassment of business owners under the guise of copyright enforcement, rather than lawfully investigating and prosecuting genuine offenders. # The Petitioner's Case 1. The Petitioner submitted extensively on Article 10 of the Constitution of Kenya, 2010. It submits that the Constitution is a value-oriented, transformative charter, and that the national values and principles of governance in Article 10 are not "lofty aspirations" but binding standards to which every State officer, including the 1st Respondent, must adhere whenever a public policy decision is made. 2. The Petitioner has relied on the decisions of the court in **George Bala v The Honourable Attorney General [2017] eKLR**, **Joseph Kimani Gathungu v Attorney General & 5 Others, and Republic v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries & 4 others Ex Parte Council of Governors & Another [2017] eKLR** to support its position. 3. The Petitioner submits that the directive was issued unilaterally, via a press announcement, without input from the Petitioner as an affected stakeholder, and that this offends the rule of law, the participation of the people, and transparency and accountability embedded in Article 10 of the Constitution of Kenya, 2010. 4. Reliance was placed on Professor Sir William Wade's Administrative Law for the proposition that, unlike a private person exercising unfettered discretion over their own property, a public authority "may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest", i.e., that the 1st Respondent's discretion, however broad, is not unfettered. 5. The Petitioner submits that Article 40(5) of the Constitution of Kenya, 2010 imposes on the State an express duty to "support, promote and protect the intellectual property rights of the people of Kenya," and that the withdrawal of the only practical enforcement mechanism available to the Petitioner constitutes a direct abdication of that duty, resulting in escalating, unchecked infringement to the detriment of the Petitioner's members. 6. The Petitioner submits that a platform for negotiation was set up between it and the 1st Respondent in good faith, that correspondence was exchanged, and that the 1st Respondent's own response of 8th November 2019 acknowledged the issues as being "under internal review" and promised a meeting once a resolution was reached. The Petitioner submits that this position remains just but a promise because it has yet to be honoured. # The Respondents' Case 1. The Respondents' case, as pleaded in the Replying Affidavit deposed to by Titi Ayiera, Assistant Inspector General of Police, dated 19th November 2024, with written submissions dated 31st March 2026, is on four linked propositions. 2. The Respondents submit that the Petition falls below the constitutional pleading threshold. That while the Petitioner cites Articles 10, 28, 40, 43 and 47, of the Constitution of Kenya, 2010, it does not plead with precision how the directive, in its actual operation, violates each of those provisions, and in particular that the alleged violation of Article 40 (property) conflates a decline in the Petitioner's private commercial revenue with a constitutional deprivation of property. 3. They relied on the decisions of **Anarita Karimi Njeru v Republic [1979] eKLR, Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR** and **Japheth Ododa Origa v Vice Chancellor University of Nairobi & 2 others [2018] KEHC 4861 (KLR).** 4. The Respondents submit that Article 245 of the Constitution of Kenya, 2010 vests in the Inspector General independent command, control and administration of the National Police Service, and expressly insulates the office from external direction in matters of enforcement and investigation. They placed reliance on the decisions of court in **Mwau v Inspector General, National Police Service & 3 others [2025] KEELRC 2951 (KLR),** **Kanchory v Service & 3 others; Law Society of Kenya & another (Interested Parties) [2025] KEHC 13792 (KLR), Jeniffer v Equity Bank of Kenya Limited & another [2025] KEELC 5740 (KLR), and Okiya Omtatah Okoiti v Cabinet Secretary, Interior and Coordination of National Government & another [2021] KEHC 1440 (KLR),** which affirm that courts must be slow to direct the Inspector General on the deployment of police personnel, as doing so would trespass on a constitutionally insulated operational sphere. 5. The Respondents submit that the directive was not arbitrary but a reasoned, proportionate response to the complaints of extortion and collusion between certain officers and the Petitioner's agents during joint enforcement operations. 6. Applying the four-part proportionality test articulated in [**Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] KEHC 7494 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/7494/eng%402018-04-19)**, they aver that** any incidental limitation on the Petitioner's operational convenience is justified. It was stated that the directive was to serve public interest in curbing police misconduct and this outweighs the Petitioner's interest in a discretionary escort arrangement that has no basis in law. 7. The Respondents submit that no private entity has an enforceable entitlement to the continuous deployment of police officers in support of its commercial operations. They state that the prior practice of accompaniment was an informal, discretionary arrangement of convenience that cannot crystallize into a legal right, and that to hold otherwise would expose the Service to capture by private commercial interests, contrary to its constitutionally public character. On this basis, the Respondents pray that the Petition be dismissed with costs. # Issues for Determination 1. Having considered the pleadings, the affidavits and the rival submissions, the following issues arise for determination: 2. **Whether the Petition discloses, with the requisite precision, a justiciable violation of the Constitution;** 3. **Whether the directive of August 2019 withdrawing police accompaniment was, in its substance, a lawful and constitutionally permissible exercise of the Inspector General's mandate under Article 245;** 4. **Whether the Petitioner is entitled, as of right, to the services, assistance and support of NPS officers in the enforcement of intellectual property rights;** 5. **Whether the Respondents' prolonged failure to conclude the internal review and engage the Petitioner amounts to unfair administrative action; and** 6. **What reliefs, if any, the Petitioner is entitled to.** **Whether the Petition discloses, with the requisite precision, a justiciable violation of the Constitution of Kenya, 2010** 1. The court agrees with the Respondents that the court's jurisdiction is not invoked by mere citing of constitutional provisions, and that the decision of the court in the Anarita Karimi Njeru case requires a Petitioner to plead, with reasonable precision, both the provision said to be violated and the manner of the violation. 2. Applying that standard here, the Court is satisfied that the Petition, read together with the Supporting Affidavit and annexures, identifies a specific administrative act (the August 2019 directive) and the manner of its enforcement. This is a materially more precise pleading than the vague, generalised assertions that Anarita Karimi Njeru and Mumo Matemu sought to exclude. The Court therefore declines to dismiss the Petition at the threshold on this ground. **Whether the directive of August 2019 withdrawing police was, in its substance, a lawful and constitutionally permissible exercise of the Inspector General's mandate under Article 245 of the Constitution of Kenya, 2010** 1. Article 245 of the Constitution of Kenya 2010 gives the 1st Respondent independent command of the National Police Service. In various decisions, courts have held that decisions about how police officers are deployed fall within that protected space and that courts should be slow to interfere with them. 2. The Respondent's averments that the directive followed genuine complaints of extortion and collusion between certain officers and individuals linked to the Petitioner's enforcement operations, and that officers were subjected to internal discipline as a result, have not been controverted by the Petitioner. On that unchallenged account, the directive was not an arbitrary or thoughtless act, as the Petitioner suggests. 3. Applying the proportionality test as set out in the decision of Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] KEHC 7494 (KLR), the directive served a real purpose by protecting the public and the integrity of the police. It was a sensible means of achieving that purpose and was narrowly tailored. It prevented police officers from accompanying the Petitioner but did not halt law enforcement altogether. Nothing in section 41 of the Copyright Act makes police accompaniment a legal precondition for the police to exercise their own search and seizure powers once a report or complaint is made to the police. 4. Article 10 of the Constitution of Kenya, 2010 sets out the national values of good governance, including the rule of law and accountability. It guides how public power is used; it does not create a separate right that overrides Article 245 of the Constitution of Kenya, 2010, which specifically governs police deployment. Disciplining officers over extortion complaints, and adjusting how they work with the Petitioner, upholds Article 10 values. It does not breach them. 5. This position is supported by the Supreme Court's opinion In the Matter of the [**In the Matter of the Interim Independent Electoral Commission (Applicant) [2011] KESC 1 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2011/1/eng%402011-12-20)**.** The opinion gave guidance on what "independence" means under Article 249(2) of the Constitution of Kenya, 2010. This also applies equally to the Inspector General's independence under Article 245 of the Constitution of Kenya, 2010. The Supreme Court held that an independence clause means a commission or office does not take orders from outside its own ambit, but that it must still operate within the Constitution and the law; independence does not mean "detachment", "isolation" or "disengagement" from the rest of public governance. 6. The court therefore holds the view that Article 245 of the Constitution of Kenya, 2010 shields the 1st Respondent from being directed by this Court on how to deploy police officers, but it does not place him outside the reach of Article 10 of the Constitution of Kenya, 2010. 7. For these reasons, the Court finds that, on the facts now before it, the August 2019 directive was a lawful exercise of the 1st Respondents' constitutional mandate. The declaration sought at prayer (a) of the Petition fails. **Whether the Petitioner is entitled, as of right, to the services, assistance and support of National Police Service officers in the enforcement of intellectual property rights** 1. The Court agrees with the Respondent’s position that neither the Constitution of Kenya,2010 nor the Copyright Act gives a private collecting society a legal right to demand that police officers accompany its enforcement operations. The National Police Service exists under Article 244 of the Constitution of Kenya, 2010 to serve the public. On the other hand, sections 39 to 42 of the Copyright Act allow police officers to act as copyright inspectors. However, this does not imply that the 1st Respondent owes a duty specifically to the Petitioner, despite the long-standing practice of convenience. It does not become a legal right, as was held in the decision of [**Jeniffer v Equity Bank of Kenya Limited & another [2025] KEELC 5740 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5740/eng%402025-07-28)**.** The declaration sought at prayer (b) that the Petitioner is entitled, as of right, to police accompaniment accordingly fails. **Whether the Respondents' prolonged failure to conclude the internal review and engage the Petitioner amounts to unfair administrative action** 1. The Respondents do not contest that the 1st Respondent's representation in the letter of 8th November 2019 that stated that the Petitioner's concerns were "under internal review" and that a formal meeting would follow "once a resolution has been reached." This representation was capable of founding a legitimate expectation of engagement and closure within a reasonable time. It is common ground that as at the time of hearing the Petition, no such meeting had taken place, and no resolution had been communicated to the Petitioner. 2. Article 47 of the Constitution of Kenya, 2010 guarantees a right to fair administrative action. The Court's reasoning relied upon by the Respondents in **Penina Wothaya Wachira v Kenya Methodist University [2018] KEHC 7522 (KLR) and Republic v Kenya Maritime Authority & another; Zam Zam Shipping Limited (Interested Party) [2021] KEHC 309 (KLR)** cuts both ways. 3. An administrative decision-maker who invokes a review process, and represents to an affected party that engagement will follow, assumes a correlative duty to conclude that process within a reasonable time or to communicate why it is not able to conclude the process. The Respondents' silence on this issue is inconsistent with what fair administrative action is. 4. The Supreme Court in [**Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/53/eng%402014-09-29) held that legitimate expectation, having been absorbed into the constitutional guarantee of fair administrative action under Article 47, of the constitution of Kenya,2010 constitutes of the following elements; i) The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification' **(ii)**The expectation must be reasonable (i**ii)**The representation must have been induced by the decision- maker, (**iv)**The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate. 5. Applying this four-part test to the uncontested facts here: the 1st Respondent's office, through its letter dated 8th November 2019, made an express and unambiguous representation that the Petitioner's request, as outlined in its letter dated 25th September 2019, was under internal review and that a resolution meeting would follow. 6. The Petitioner relied on the Respondents' representations, which were not acted upon. In my view, it is not unlawful or unconstitutional to hold the 1st Respondent liable for its representations, as this vindicates Article 245 of the Constitution of Kenya, 2010, since it does not touch the operational substance of the 1st Respondent's directive at all. 7. In my view, all four elements of the test outlined in [**Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/53/eng%402014-09-29) are made out. The Respondents' prolonged, unexplained failure to honour that representation is actionable as a breach of the Petitioner's legitimate expectation, independently of whether the underlying directive itself was lawful. 8. The Court is accordingly satisfied that, while the original directive for the reasons given by the 1st Respondent was lawful and constitutionally permissible exercise of operational discretion of the 1st Respondent, the subsequent, unexplained delay and indefinite failure to conclude the review by the 1st Respondent constitutes a distinct breach of the right to fair administrative action under Article 47 of the Constitution of Kenya,2010 and offends the values of accountability and responsiveness in Article 10(2)(c) of the Constitution of Kenya,2010. **Final Orders of the Court** 1. For the foregoing reasons, the Court makes the following orders: 2. The prayer for a declaration that the 1st Respondent's directive of August 2019 withdrawing police accompaniment from the Petitioner's enforcement operations is unconstitutional is DECLINED; 3. The prayer for a declaration that the Petitioner is entitled, as of right, to the services, assistance and support of officers of the National Police Service in the enforcement of intellectual property rights is DECLINED; 4. A declaration is hereby issued that the Respondents' continued, prolonged and unexplained failure to conclude the internal review and to engage the Petitioner is inconsistent with the right to fair administrative action under Article 47 of the Constitution of Kenya,2010 and the values of accountability under Article 10 of the Constitution of Kenya,2010. 5. Each party shall bear its own costs of the Petition. 6. It is so ordered. **Dated and signed at Nairobi this 23rd day of July 2026.** **Gregory Mutai** **JUDGE** **In the presence of:** Ms **Somba**, holding brief for Dr **O’Kubasu** for the **Petitioner**; Ms **Khadija Taib**, holding brief for Mr **Weche**, for the **Respondents**; and Ms **Neema Lwambia - Court Assistant**.