https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8328

Oyier v Safaricom PLC (Commercial Case E495 of 2024) [2026] KEHC 8328 (KLR) (Commercial and Tax) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 8328 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E495 of 2024 MO Ado, J June 4, 2026 Between Peter Oyier Plaintiff and Safaricom PLC Defendant Ruling 1.Before the Court is the Defendant’s Notice of Motion dated 28th November 2025 brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 1 Rule 10(2), Order 2 Rule 15(1)(a) and (d) and Order 51 Rule 1 of the Civil Procedure Rules seeking an order that the suit against it be struck out with costs. 2.The application is premised on the ground that the Plaint discloses no reasonable cause of action against the Defendant. The Defendant contends that the Plaintiff’s claim is founded upon various Model Release Agreements entered into between the Plaintiff, MGM Studios Limited and Za Kikwetu Productions Limited and that the Defendant was not a party to those agreements. It therefore argues that there is no privity of contract between the parties capable of giving rise to enforceable rights and obligations. 3.The Plaintiff opposed the application through a Replying Affidavit sworn on 28th November 2025. He contends that the suit is not founded on breach of contract but on copyright infringement arising from the Defendant’s continued use of his Interactive Voice Response (IVR) works after the expiry of the licences under which they had been used. He maintains that the pleadings disclose triable issues which can only be determined at trial. 4.The parties filed written submissions which I have considered together with the pleadings and affidavits on record. 5.The issue for determination is whether the Plaint discloses a reasonable cause of action against the Defendant and ought therefore to be struck out. 6.The jurisdiction to strike out pleadings under Order 2 Rule 15 of the Civil Procedure Rules is a drastic one which must be exercised sparingly and only in the clearest of cases. The Court must refrain from embarking upon a trial of disputed facts at this stage. If a pleading discloses even one bona fide triable issue, the matter ought to proceed to hearing. 7.The Court of Appeal in D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1 stated that:“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment.” 8.The Plaintiff’s case as pleaded in the Plaint dated 29th July 2024 is that he is a professional voice artist who created and licensed IVR works which were used by the Defendant through various agents. He alleges that the licences were for limited durations and that upon expiry thereof, the Defendant continued using the works without his consent or remuneration. 9.The Plaintiff therefore claims that the Defendant’s continued use of the works amounts to copyright infringement and conversion. He seeks declaratory reliefs and damages arising from the alleged infringement. 10.It is evident from the Plaint that the gravamen of the Plaintiff’s claim is not breach of contract. Rather, the Plaintiff alleges infringement of rights protected under the Copyright Act arising from the Defendant’s continued use of his works after the expiry of the licences under which such use was authorised. 11.Whether the Plaintiff is the owner of the alleged copyright, whether the licences expired as pleaded, whether the Defendant continued using the works thereafter, and whether such use amounted to infringement are all matters that can only be determined upon consideration of evidence at trial. 12.In those circumstances, the Defendant’s argument on lack of privity of contract does not, by itself, dispose of the Plaintiff’s claim. Even assuming there was no direct contractual relationship between the parties, the Plaint nonetheless pleads a statutory cause of action founded on alleged copyright infringement. 13.I am therefore satisfied that the Plaint discloses a reasonable cause of action and raises triable issues requiring determination by the Court. This is not one of those plain and obvious cases in which the Court should exercise its power to strike out a suit. 14.The Notice of Motion dated 28th November 2025 is accordingly dismissed with costs to the Plaintiff. 15.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026HON. MR. JUSTICE MOSES ADOJUDGE OF THE HIGH COURTIn the Presence of:Moses C/AKiche………………for the Defendant/ApplicantMinayo……………for the Plaintiff/Respondent