[2016] KEHC 7316 (KLR)
The court found that the affidavits and written submissions on record were insufficient to resolve the central issue of whether the deceased was the exclusive owner of the copyright in the music or whether the applicants were joint owners as members of the band. The evidence presented was inadequate to determine the...
Source-derived case information.
- Citation
- [2016] KEHC 7316 (KLR)
- Parties
- Applicant: Sijali Salum Zuwa; Applicant: Rashid Juma; Applicant: Tommy Malanga; Applicant: Joseph Justi Shayo; Applicant: Hassan Mohamed Ngao; Respondent: Pamela Akinyi Atieno
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause Cause1676 of 2009
- Procedural Posture
- Succession Cause / Ruling on Sufficiency of Evidence and Directions for Oral Hearing
- Outcome
- Matter to proceed by oral hearing; implementation of confirmed grant stayed; royalties to be deposited in court.
- Judges
- AO Muchelule
- Legal Topics
- Succession of Estates, Grant Revocation, Copyright Ownership, Joint Authorship, Music Royalties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sijali Salum Zuwa
Applicant
Rashid Juma
Applicant
Tommy Malanga
Applicant
Joseph Justi Shayo
Applicant
Hassan Mohamed Ngao
Applicant
Pamela Akinyi Atieno
Respondent
Procedural Posture
Succession Cause / Ruling on Sufficiency of Evidence and Directions for Oral Hearing
Legal Issues
- 1 Whether the deceased was the exclusive composer and owner of the music works or whether the works were a joint effort of the Les Wanyika band including the applicants.
- 2 Whether the applicants are entitled to joint copyright ownership of the music works forming the estate.
- 3 Whether the grant issued to the respondent should be revoked based on the applicants' claims.
Ratio Decidendi
The court found that the affidavits and written submissions on record were insufficient to resolve the central issue of whether the deceased was the exclusive owner of the copyright in the music or whether the applicants were joint owners as members of the band. The evidence presented was inadequate to determine the nature of the band's formation, the roles of the parties, and the authorship of the music. In the interests of justice, the court held that the matter required an oral hearing with viva voce evidence, allowing parties and witnesses to testify and be cross-examined, and for all relevant documentary evidence to be scrutinized. The court therefore set aside the previous direction...
Court Disposition
Matter to proceed by oral hearing; implementation of confirmed grant stayed; royalties to be deposited in court.
Orders
- The order for disposal by written submissions is reviewed and set aside.
- The matter shall be determined by way of oral hearing (viva voce) with parties and witnesses testifying and being cross-examined.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 1676 OF 2009
IN THE MATTER OF THE ESTATE OF OMAR SHABAN SALIM (DECEASED)
SIJALI SALUM ZUWA…..........................................1ST APPLICANT
RASHID JUMA….....................................................2ND APPLICANT
TOMMY MALANGA…............................................3RD APPLICANT
JOSEPH JUSTI SHAYO….......................................4TH APPLICANT
HASSAN MOHAMED NGAO….............................5TH APPLICANT
VERSUS
PAMELA AKINYI ATIENO……………………..RESPONDENT
RULING
On 26th May 2014 directions were taken that this matter be disposed of by way of written submissions based on the affidavits that had been filed. It is on that basis that on 2nd December 2015 the Court indicated that judgment be delivered on 20th January 2016.
However, on perusing the affidavits I found that they contained insufficient evidence to enable a just and fair decision on this crucial matter. Basically, the respondent obtained a grant, which was confirmed, on the basis that she was the widow of the deceased whose only asset were forty eight (48) songs in respect of which he had exclusive copyright. By the grant, therefore, the copyright was transferred to her to be able to receive royalties over the songs.
The applicants came to court to seek the revocation of the grant. Their case was that they, along with the deceased and others, were members of a band called Les Wanyikaand that, together, they were the authors, composers, and performers of the music. Therefore, they said, they were jointly entitled to the copyright in the music. The respondent, on the other hand, was saying that the band was exclusively formed by the deceased who employed the applicants as sessional musicians to help perform and/or produce the songs; that the applicants were paid for their work and had no claim to the music; and that it was the deceased who composed all the songs, and therefore was the copyright owner.
The question that the parties want resolved is whether the deceased was the exclusive composer and owner of the music works, or whether the music works was the joint effort of the Les Wanyika band whose members included the applicants. It is when this question is answered that a determination can be made whether or not the applicants are joint copyright owners of the works. The court would have to consider the agreement or arrangement under which the band was formed, whether the applicants were employees or joint members, or whether the deceased was the absolute owner. The court would have to determine when the applicants and the deceased, or any of them, joined and/or left the band, if at all. This is because the applicants stated that they remained in the band from 1978 to 1998, and the deceased joined in 1978 and left in 1983. Against that evidence, the respondent stated that the deceased was in the band throughout and that it was the applicants who were in the band for only a few years after its inception and left altogether. There must be third parties who would testify to what happened to the band regarding its composition from its inception up to 1998. The producers of the music, for instance, would know one or two things about the band and the composers of the respective music. All this evidence would be tested against the Copyright Act, all other relevant laws and decided cases.
With respect to the parties and their counsel, I do not think that there is sufficient evidence and material on record to help substantially decide the case one way or the other.
It is for these reasons that, in the wider interests of justice, I review the order that was made on 26th May 2014 and in its place make order that this matter be determined by way of oral hearing (“viva voce”)where the parties and their witnesses can testify and be cross-examined, and all relevant documentary evidence received and scrutinized. I ask that this matter be mentioned on 22nd February 2016 by which time parties will have filed and exchanged witness statements and/or documents to enable the taking of a hearing date.
In the meantime, and in the wider interest of justice, I direct that the implementation of the confirmed grant be stayed and any royalties that are due be deposited into Court from now till the matter is determined.
DATED and DELIVERED at NAIROBI this 20TH JANUARY 2016
A.O. MUCHELULE
JUDGE