https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9134

Republic v Kenya Copyright Board & another; Kamp Copyright and Related Rights Ltd (Ex parte) (Judicial Review E109 of 2026) [2026] KEHC 9134 (KLR) (Judicial Review) (26 June 2026) (Judgment) Neutral citation: [2026] KEHC 9134 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E109 of 2026 WM Musyoka, J June 26, 2026 Between Republic Applicant and Kenya Copyright Board Respondent and Performing and Audio-Visual Rights Society Of Kenya (Pavrisk) Limited Interested Party and Kamp Copyright and Related Rights Limited Ex parte Judgment 1.These Judicial Review proceedings were initiated under certificate of urgency, by way of an ex parte chamber summons, dated 9th April 2026, for leave to commence proceedings for the judicial review orders of certiorari and mandamus, directed at the respondent, with respect to issuance of licences for sound recording rights for performers and audio-visual rights. The leave sought was granted, on 13th April 2026. The substantive Motion was filed herein, dated 28th April 2026. It is supported by the statutory statement and the affidavit verifying it, filed at the leave stage. 2.According to the statutory statement and the verifying affidavit, the ex parte applicant, as a collective management organisation, had applied for renewal of its licence, on 18th September 2025, for, among others, the categories of producers of sound recordings, performers and audio-visual producers. The respondent, as the licensing body, communicated its decision to only licence the ex parte applicant for producers of sound recording category, and, thereby, it is alleged, splitting producers of sound recording and performers rights, contrary to the Copyright Act, Cap. 130, Laws of Kenya. The complaint, by the ex parte applicant, is that it was not licensed for audio-visual producers, and the communication of the decision, by the respondent, did not set out the evaluation criteria or reasons upon which that decision was based. 3.The ex parte applicant was aggrieved by that process, and lodged an internal appeal, to the respondent, on the said issues, on 24th October 2025 and 27th October 2025. The appeals were acknowledged, on 1st November 2025, and an invitation was sent out for a meeting on 3rd November 2025. On 3rd November 2025, and before hearing the ex parte applicant, the respondent wrote, indicating that the issues would be tabled before it, and a decision communicated, but that never happened, instead a partial licence was issued, on 15th December 2025, to apply retrospectively from 5th November 2025. 4.The ex parte applicant sought redress with the Copyright Tribunal, on 4th January 2026, but that appeal was dismissed, on 3rd February 2026, purely on jurisdictional timelines, on the basis that the 60-day window had lapsed. On 2nd March 2026, the ex parte applicant wrote to the respondent, requesting for the evaluation criteria, process and results for licensing of collective management organisations, under the Fair Administrative Action Act, Cap. 7L, Laws of Kenya, to ascertain the basis upon which the rights had been discriminatorily awarded or denied. On 9th March 2026, there was communication of the resolutions by the respondent, from the meeting of 6th March 2026, but the issues raised around evaluation criteria, audio-visual works and performers rights were ignored. 5.It is on that basis that the ex parte applicant seeks the quashing of the decisions of 14th October 2025 and the certificates renewed on 15th December 2025, and orders to compel the re-issue of the licences for performers rights and sound recordings, re-issue of licences for producers of audio-visual works, formulation of operational guidelines and sectoral allocations for licences, and provision of an evaluation criteria process, and the results used in the 2025 licencing cycle. 6.The grounds upon which the judicial review orders are sought are summarised into illegality and ultra vires, unlawful exclusion, breach of statutory duty and legitimate expectation, unreasonableness, procedural impropriety and violation of fair administrative action, and exhaustion of remedies. 7.A bundle of documents is attached to the application. There is a copy of an application for registration of the ex parte applicant, as a collective management organisation, dated 18th September 2025. There is a copy of the application for renewal of registration as a collective management organisation, also dated 18th September 2025. There are copies of certificates of renewal of the registration of a collective management society, dated 31st December 2018 and 1st February 2019. There is also a copy of the decision of the respondent, dated 14th October 2025, renewing the licence of the ex parte applicant, to collectively manage and represent the producers of sound recording category of copyright and related rights. There is a copy of the appeal, dated 24th October 2025, addressed to the respondent. There is also a copy of a letter dated 24th October 2025, appreciating the partial renewal of the licence, and raising the issues on appeal. There is also the appeal, dated 27th October 2025, with respect to denial of the multi-rights licence. 8.The other documents in the bundle include a letter, from the respondent, acknowledging receipt of a letter dated 28th October 2025, and another, dated 3rd November 2025, acknowledging receipt of the appeal, dated 27th October 2025. There is a copy of the certificate of renewal of registration of a collective management society, dated 5th November 2025. There is a copy of a ruling, in a matter before the Copyright Tribunal, between the ex parte applicant and the respondent, delivered on 3rd February 2026. There is also a copy of the letter, dated 2nd March 2026, written by the ex parte applicant, to the respondent, raising several issues. Then there is a letter from the respondent, to the ex parte applicant and the interested party, on review of licensing conditions. Finally, there is a copy of Legal Notice No. 4 of 29th January 2026. 9.The respondent and the interested party were served with the Motion, and have filed responses. 10.The respondent has filed a preliminary objection, dated 20th May 2026, to the motion, together with written submissions, on the preliminary points. The grounds are around jurisdiction, the judicial review proceedings being in the nature of an appeal, the claim being statutorily-barred, among others. 11.The interested party has filed an affidavit, sworn by its Chief Executive Officer, Mr. Joseph Njagih, on 28th May 2026. It is pointed out that the ex parte applicant had moved the Copyright Tribunal, challenging the decision of 14th October 2025, in Copyright Tribunal Appeal No. E001 of 2026, between itself and the respondent, which was heard, and dismissed on 3rd February 2026, on grounds of being statutorily debarred. Provisions of the Fair Administrative Action Regulations, 2024, and the Copyright Act, are cited, for arguments about timelines for filing for judicial review and jurisdiction. Various provisions of the Copyright Act are cited, in the affidavit, on the content of the copyright law on linking of various actors in the industry. A copy of the ruling, of 3rd February 2026, in Copyright Tribunal Appeal No. E001 of 2026, is annexed to the affidavit. 12.The application was canvassed by way of written submissions, filed by both sides. I have read through the said written submissions, and noted the respective arguments made in them. 13.The submissions, by the ex parte applicant, centre around the preliminary objection, on whether it reaches the threshold; whether the proceedings are a disguised appeal, and a collateral attack on the decision of the Copyright Tribunal; whether the doctrine of exhaustion applies; whether the merits of the decision should be visited; whether there was an error of law in issuing a partial licence limited to producers of sound recordings, while excluding performers and unlawfully splitting the rights that are legally intertwined under the Copyright Act; violation of the Constitution and statutory duty under the Copyright Act, by failing to licence the ex parte applicant for audio-visual procedures of sound recordings; whether the respondent should formulate issue and publish fair and equitable operational guidelines for application of licensing conditions; and whether the respondent should provide evaluation criteria process and results, and a future evaluation criteria for future licencing. 14.There is reliance on Mukisa Biscuit Manufacturing Co Ltd vs. West End Distributors Ltd [1969] EA 696, Oraro vs. Mbaja [2005] eKLR, Republic vs. Officer in Charge of Station, Karen & another ex parte [2021] eKLR, Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others [2016] eKLR, Dande & 3 others vs. Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR), Republic vs. National Environment Management Authority ex-parte Sound Equipment Limited [2011] eKLR and Commission on Administrative Justice vs. Insurance Regulatory Authority & another [2017] eKLR. 15.The respondent submits only on the matters raised in the preliminary objection, principally on jurisdiction, around the Copyright Act having expressly provided for a statutory dispute resolution mechanism, which provides for an appeal to the Copyright Tribunal. Section 9(2) of the Fair Administrative Action Act, which provides for exhaustion of internal dispute resolution mechanisms, is cited. 16.Only 2 principal issues arise for consideration, the competence of the instant proceedings, and, should I find them competent, the merits of the application. 17.The first issue arises from the preliminary objection. The argument is that these proceedings ought not have been lodged in court, prior to exhaustion of the dispute resolution mechanisms provided for under the governing legislation. 18.The licensing exercise, the subject of these proceedings, was being undertaken under the Copyright Act. Section 3 of the Copyright Act establishes the respondent, that is the Kenya Copyright Board, whose functions are set out under section 5, to include, at section 5(b), the licensing and supervision of the activities of collective management societies. The activity, which gave rise to these proceedings, falls within section 5(b) of the said Act. 19.Section 21 of the Copyright Act provides for appeals from decisions of the respondent. The said appeals lie with the Copyright Tribunal, established under section 21, to be lodged within 60 days of the making of the impugned decision, to be determined within 30 days from the date of lodging, which determination shall be final. The Copyright Tribunal is defined in section 2 of the Act, with reference to section 48 of the Act. It comprises of not less than 3 and not more than 5 members, including an Advocate of the High Court, who is the chairperson, all appointed by the Chief Justice, and its mandate is dispute resolution, in terms of section 48(4) of the Act. 20.Section 21 of the Copyright Act, no doubt, provides for a dispute resolution mechanism, relating to what the Copyright Act governs or regulates. It is now a matter of common notoriety, in the area of public law, that where a statute, such as the Copyright Act, provides for a specialised or dedicated dispute resolution mechanism, to handle any disputes arising from the activities regulated under that law, that dispute resolution mechanism ought to be exhausted first, before the issues can be, if at all, escalated to the courts. See Speaker of the National Assembly vs. Karume [1992] KLR 21 [1992] KECA 42 (KLR). 21.The requirement, that internal dispute resolution mechanisms be exhausted first, is mandatory, and suits have been struck out for non-compliance. See Talanta Institute vs. Office of the Data Protection Commissioner; Muhuga (Interested Party) [2025] KEHC 8530 (KLR), Republic vs. Kenya Revenue Authority & another; Bonuke (Ex parte Applicant) [2025] KEHC 13867 (KLR) and Hassan vs. County Government of Wajir & another [2025] KEELRC 1120 (KLR). 22.As section 21 of the Copyright Act does provide for an internal dispute resolution mechanism, whose determination is meant to be final, it should follow that any dispute, arising from a decision of the respondent, should first be placed for resolution by the Copyright Tribunal, as envisaged under section 21. The decision of the Copyright Tribunal ought to be final, by virtue of section 21, meaning that there is no opening for a further appeal to a court exercising appellate jurisdiction. 23.However, despite section 21, such determination would still be amenable to judicial review, whether sought through a constitutional petition, or Order 53 of the Civil Procedure Rules, or the provisions of the Fair Administrative Action Act, subject, of course, to exhaustion of the internal dispute resolution mechanisms under the Copyright Act. Any escalation of the dispute, beyond section 21, can only be by way of judicial review, not of the decision of the respondent, but of the determination by the Copyright Tribunal under section 21. 24.The dispute herein was completely subject to the Copyright Act, and should have been first channelled and exhausted under section 21 of the said Act. If there was need to escalate the matter to the High Court, that could only be by way of judicial review, not of the decision of the respondent, but of the Copyright Tribunal, established under section 21, challenging its final determination. 25.It would go without saying, therefore, that the instant proceedings are not properly before me. The ex parte applicant ought to have exhausted the mechanism under section 21. Even then, it could only challenge the determination of the Copyright Tribunal, created under section 21, and not the primary decision of the respondent, as it has purported to do in this case. 26.From the material before me, it would emerge that the ex parte applicant did in fact invoke section 21 of the Act, by lodging an appeal at the Copyright Tribunal, in accordance with the said Act. However, its attempt to take advantage of that internal dispute mechanism failed, for its challenge was filed outside the 60 days allowed by section 21(1), hence it was struck out for lacking competence, on account of having been filed out of time. Any judicial review challenge could only be anchored on that decision of the Copyright Tribunal. However, as fate would have it, the ex parte applicant chose to target the decision of the respondent itself. 27.There are arguments founded on the Fair Administrative Action Act. I would be reluctant to make any pronouncements on the competence of these proceedings on the basis of the provisions of the Fair Administrative Action Act. The framing of these proceedings removed them from the Fair Administrative Action Act process, and grounded them under Order 53 of the Civil Procedure Rules. These are Order 53 of the Civil Procedure Rules proceedings, and I would rather deal with them in that context. 28.I believe I have said enough to dispose of the matter before me. These proceedings are not properly conceived or founded. They are not competent. They provide no foundation, whatsoever, for grant of the orders that the ex parte applicant seeks. Consequently, I have no option, except to have the same struck out, which I hereby do. Each party shall bear its own costs. Orders accordingly. DELIVERED, VIA CTS, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 26TH DAY OF JUNE 2026.W MUSYOKAJUDGEMr. Abdirahman, Court Assistant.AdvocatesMr. Onchweri, instructed by Kurgat & Kurgat, Advocates for the ex parte applicant.Mr. Wanjohi, instructed by the Attorney General, and Mr. Kiando, Advocates for the respondent.Mr. Mburu, instructed by Morris Maina & Company, Advocates for the interested party.