Kadi Media Limited & another v Wananchi Group Limited (Tribunal Case E001 of 2024) [2024] CPT 1862 (KLR) (28 November 2024) (Order)
Neutral citation:
[2024] CPT 1862 (KLR)
Republic of Kenya
Tribunal Case E001 of 2024
EM Lenjo, Chair, H Kiande, JN Kihanya & WO Lusi, Members
November 28, 2024
Between
Kadi Media Limited
1st Complainant
Diana Mbondo
2nd Complainant
and
Wananchi Group Limited
Respondent
Order
1.This matter coming up before the Hon Tribunal, today 28th November, 2024 for Mention pursuant to the Order of Transfer of the High Court made on 4th November, 2024 by the Hon Lady Justice C.W. Meoli in HCC E770 of 2024 Kadi Media Ltd and Another v Wananchi Group Limited, transferring the said Suit for disposal by the Hon Copyright Tribunal.
2.Whereas the Mention was scheduled for purposes of issuance of directions on the disposal of the Complaint, Learned Counsel for the Complainants Mr Richu, drew the Tribunal’s attention to an intent by the Complainant via a Miscellaneous Application, which we were advised has been lodged at the High Court, and which seeks are transfer of the subject Claim from the Tribunal back to the High Court for hearing and determination. Learned Counsel Mr Richu did indicate that his Clients sought an injunction against the unauthorised user of their copyrighted works by the Respondent, which under Section 35D, Copyright Act can only be issued by the High Court. Further Learned Counsel Mr Ndichu observed that the subject matter of the Claim lay outside the Tribunal’s jurisdiction under Section 48(4), Copyright Act. On his part Learned Counsel Mr Ogara for the Respondent observed that the issue raised is purely on a point of law to be determined by the Court, and upon enquiry did confirm that the issue he refers to is as raised by Learned Counsel Mr Richu for the Claimant. Learned Counsel Mr Ogara then urged the Tribunal to stand over the matter, until the determination by the High Court of the Application for retransfer of the subject Claim from the Tribunal to the High Court.
3.The Tribunal has considered the request as urged the Learned Counsel vis-à-vis the Order of Transfer of the High Court made on 4th November, 2024 by the Hon Lady Justice C.W. Meoli in HCC E770 of 2024 Kadi Media Ltd and Another v Wananchi Group Limited, the applicable law and determines as follows:
4.It is hereby ordered:1.The Tribunal is minded as a preliminary issue to satisfy itself that indeed it does have jurisdiction, before a merit consideration of any dispute lodged before it. Indeed variously before the Tribunal has suo moto asked Parties in different matters lodged before it to address it on the question of jurisdiction where it appeared doubtful that the Tribunal’s jurisdiction had been properly invoked before proceeding a step further.2.Indeed through various previous decisions, the Tribunal has addressed the question of its jurisdiction and observed that the Copyright Act (the Act) provides definite instances where the Tribunal may assume and exercise its jurisdiction:i.First, under Section 21(1), Copyright Act,
- “A person aggrieved by the decision of the Board under this Act may, within sixty days from the date of the decision, appeal to the Copyright Tribunal.”
- Therefore where the Kenya Copyright Board (KECOBO) makes a decision under the Act, the Tribunal may assume and exercise jurisdiction over an appeal by any aggrieved person.
- “where a broadcasting authority broadcasts audio-visual works in which a musical work is incorporated, the owner of the right to broadcast the musical work shall, subject to the provisions of this Act, be entitled to receive fair compensation from the broadcasting authority, and in the absence of an agreement the amount of compensation shall be determined by the Copyright Tribunal appointed under section 48.”
- Therefore, where a broadcasting authority incorporates a musical work in an audio-visual broadcast, absent authorization from owner of the broadcast over the musical work, the Tribunal may assume and exercise jurisdiction over a complaint to determine the amount of compensation payable. This provision however excludes unauthorized audio broadcasts (which may actually arise higher instances of alleged infringement).
- The broadcasting of a literary, musical, or artistic work or audiovisual works already lawfully made accessible to the public with which no licensing body (CMOs) referred to under section 46 is concerned; absent authorization from the owner of the broadcast right over the literary, musical or artistic work or audiovisual works already lawfully made accessible to the public, entitles the owner of the broadcasting right in the work to receive fair compensation determined, in the absence of agreement, by the Copyright Tribunal.
- The Copyright Tribunal shall have jurisdiction to hear and determine disputes over the registration of copyright.
- Therefore where any person disputes a decision relating to the registration of copyright by KECOBO, they may lodge a complaint or claim to the Tribunal.
- The Copyright Tribunal shall have jurisdiction to hear and determine an appeal against:
- KECOBO's refusal to grant a certificate of registration to a collective management organization (CMO);
- The imposition of unreasonable terms or conditions by the KECOBO for the grant of a certificate of registration;
- An unreasonable refusal by a CMO to grant a license in respect of a copyrighted work; and,
- The imposition of unreasonable terms or conditions by a CMO for the grant of a license in respect of a copyrighted work
- The Tribunal may assume and exercise jurisdiction, upon invocation of any of the preceding four (4) scenarios as a cause of action.
DATED AT NAIROBI THIS 28TH NOVEMBER, 2024SIGNED AND DELIVERED BY:HON. ELIZABETH LENJO - CHAIRPERSONHON. HELLEN KIANDE - MEMBERHON. JOSEPH KIHANYA - MEMBERHON. WILFRED LUSI - MEMBERIn the presence of:………………. Court AssistantMr Richu Counsel for the ComplainantsMr Ogara Counsel for the Respondent