[2022] KEHC 12768 (KLR)

Mwangi v Theiya & another (Civil Case E008 of 2022) [2022] KEHC 12768 (KLR) (1 September 2022) (Ruling)

Neutral citation: [2022] KEHC 12768 (KLR)

Republic of Kenya

In the High Court at Murang'a

Civil Case E008 of 2022

K Kimondo, J

September 1, 2022

Between

Gerald Wambugu Mwangi

Applicant

and

Joseph Theiya

1st Respondent

Peter Kaburi Maina

2nd Respondent

Ruling

1. The plaintiff craves a permanent injunction to restrain the respondents from playing a campaign song composed for the plaintiff in its original or edited form pending the hearing and determination of this suit.

2. The facts giving rise to the suit are fairly straightforward: The 1st respondent is a music composer. The plaintiff contracted him to compose a campaign song to boost his campaigns to recapture the seat for Member of the County Assembly (MCA) for Kamacharia Ward in the August 2022 general elections. It was an oral contract for the consideration of Kshs 100,000.

3. The song was recorded and registered as a Sikizatune melody, a fact admitted in paragraph 15 of the 1st respondent’s replying affidavit.

4. The plaintiff contends that in breach of the contract, the 1st respondent used the same lyrics for a similar song praising the 2nd respondent titled Kaba Wakaburi. Since the 2nd respondent is also running for a political office in the neighbouring constituency, the applicant contends that it confuses his voters and may lead to the loss of his seat.

5. He avers at paragraph 5 of the supplementary affidavit that- From the lyrics ordinary members of the public cannot differentiate the two songs and majority of the voters are confused when the two songs are played. They cannot tell whether the political rally the song is being played [sic] is my rally or if it is those organized by the 2nd defendant.

6. Those matters are detailed at length in the Notice of Motion dated June 29, 2022, the supporting affidavit and the supplementary affidavit dated July 19, 2022.

7. The motion is contested by the respondents through the replying affidavit sworn by Joseph Theiya, the 1st respondent, on July 12, 2022. He does not deny the contract but raises three key objections: Firstly, that the plaintiff only paid Kshs 50,000 and the balance remains outstanding. Secondly, that he composed the song, Kaba Kaburi, for the 2nd respondent in March 2022 well before the contract with the plaintiff. Thirdly, that the oral contract did not give the plaintiff exclusive rights to the recording.

8. That argument is disputed by the plaintiff in the supplementary affidavit who asserts that the contract provided that the lyrics “will not be used for any other campaign song for any other politician pending the forthcoming general elections on August 9, 2022”.

9. The applicant’s counsel lodged submissions on July 19, 2022. The respondents’ filed their joint submissions on June 21, 2022. On July 28, 2022, learned counsel informed me that they were relying entirely on those submissions.

10. I take the following view of the matter. The main suit remains unheard. I thus decline the invitation to make any conclusive findings on the merits of the suit.

11. But I can safely say that the dispute revolves around copyright to the campaign song. Generally, the right accrues to the author of the musical work, in this case the 1st respondent. See section 22(5) of the Copyright Act.

12. However, there is an exception in section 31(1)(a) of the Act where the work is commissioned by a person, in which case the copyright shall be deemed to be transferred to the person who commissioned it subject to any agreement between the parties excluding or limiting the transfer. That would seem to be the case here. I say that very guardedly and without making a finding in view of the pending suit.

13. I have then looked at the principles governing the grant of prohibitive injunctions. See Giella v Cassman Brown and Company Limited [1973] E.A 358. Those principles are first, that the applicant must show a prima facie case with a probability of success; secondly that he stands to suffer irreparable harm not compensable in damages; and thirdly, if in doubt, the court must assess the balance of convenience.

14. In Mrao Limited v First American Bank of Kenya Ltd and others [2003] KLR 125, the Court of Appeal stated that a prima facie case is one –“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 by the opposite party as to call for an explanation or rebuttal from the latter”.

15. Like I stated, it would be prejudicial to delve too deep into the merits of the action at this stage. That will be the true province of the trial court. But in view of the admitted contract and the provisions of the Copyright Act above, I readily find that the plaintiff has established a prima facie case with a probability of success.

16. The respondents have not seriously contested that paying similar lyrics for two politicians may confuse the electorate and cause the plaintiff damage. I agree with the respondents that it is difficult to quantify how the playing of the song in praise of the 2nd respondent will make the plaintiff lose votes or his seat. But I cannot rule it out altogether. That is the nature of a loss which may not be compensable in damages.

17. Having reached that conclusion, I do not need to weigh the balance of convenience. Kenya Commercial Finance Company Ltd v Afraha Education Society[2001] 1 E.A. 86.

18. My final orders are thus as follows-i.That the applicant’s notice of motion dated June 29, 2022 is allowed.ii.The 1st and 2nd defendants, their agents or servants or by any other means whatsoever are hereby restrained by injunction from playing the campaign song styled Kaba Kaburi in its original form or in any edited version with changed words but maintaining the same lyrics or any similar song during the campaigns or rallies of the 2nd defendant pending the hearing and determination of this suit.iii.That I grant the plaintiff costs of the motion.It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANG’A THIS 1ST DAY OF SEPTEMBER 2022. KANYI KIMONDOJUDGEORDERThe date for delivery of this ruling was taken in open court in the presence of both parties or their legal counsel. Pursuant to the Practice Directions by the Hon Chief Justice; and, the parties’ consent on 28th July 2022, this ruling has been delivered to the parties by electronic mail. Both parties have accordingly waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.KANYI KIMONDOJUDGERuling read in chambers in the presence of:Ms. Susan Waiganjo, Court Assistant.