Mhubiri Productions Ltd v Safaricom Ltd & another [2020] KECA 74 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a company cannot claim copyright registered in its founder's personal name without a proper written assignment and verification letter.
What this practically means
#Executive summary
#Key legal issues
#Ownership of the copyright as between Gaudencia t/a Mhubiri Productions and the incorporated appellant
The appellant did not own the copyright; it was registered to and held by Gaudencia, a separate legal person, and no assignment transferred her rights to the appellant
Applying the Salomon principle as restated in Gilgil Telecoms Industries Ltd v Duncan Nderitu, the court held that a company is independent of its founders and promoters. The 2009 agreement and the copyright certificate were in Gaudencia's name, and the court found no agreement or assignment transferring her rights to the appellant. The 2010 agreement was with the appellant but its contents differed from the 2009 agreement, so there was no novation or adoption.
Compliance with section 33(3) of the Copyright Act regarding foreign works
A letter of verification from the Board is a mandatory statutory requirement for assignments of copyright works from outside Kenya; a mere application for verification is insufficient
Section 33(3) requires the written assignment of copyright of foreign works to be accompanied by a letter of verification from the Board. The court held that an application for verification is distinct from the letter itself, and the statutory requirement cannot be downplayed as a technicality, its possible purpose being to guard against plagiarism or piracy of foreign works.
Non-joinder of the composer and KECOBO and pleading lapses
Failure to sue Upendo Nkone, the actual copyright holder, and KECOBO, the accused issuing body, were fundamental procedural lapses fatal to the claim, and parties are bound by their pleadings
Relying on the Supreme Court's statement in Raila Amolo Odinga v IEBC on the essence of pleadings, the court held that a party cannot travel beyond its pleadings. The composer, who allegedly breached the 2009 agreement and dealt with the 2nd respondent, was not sued; KECOBO, accused of issuing a certificate without verification, was also not joined. These lapses went to the root of the matter and were not mere technicalities.
Interference with the trial court's factual findings
An appellate court will not lightly differ from findings of the trial court that saw and heard the witnesses, and will interfere only where findings are based on no evidence or wrong principles
Invoking Rule 29 of the Court of Appeal Rules, the court conducted a re-evaluation of the evidence as on retrial while according due respect to the trial judge's findings. Citing Jabane v Olenja and Mwangi v Wambugu, it reiterated the settled standard for interference with first-instance factual findings and found no justification to depart from them.
Legal principles established
#- A written assignment of copyright works from outside Kenya must be accompanied by a letter of verification from the Kenya Copyright Board to have effect; a mere application for verification does not suffice
- A limited company has a legal existence independent of its members, directors and promoters, and rights acquired by a promoter before incorporation do not automatically accrue to the company upon incorporation absent an assignment or valid adoption
- Parties are bound by their pleadings and failure to join necessary parties such as the copyright holder and the issuing Board are fundamental lapses going to the root of the matter
Court orders
#- 1.The appeal is dismissed for the same reasons given by the trial Judge
- 2.Each party shall bear its own costs in the appeal
- On appeal from
- High Court of Kenya, Commercial & Admiralty Division
- H.C.C.C. No. 340 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29 invoked); appeal against the judgment and decree of the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mhubiri Productions Ltd v Safaricom Ltd & another [2020] KECA 74 (KLR)", Case Analysis (2020). Civil Appeal No. 299 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/74/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.