Dishon Macharia Waweru Alias Wachira Wa Karangatha v Lawrence Wagura Alias Dj Fatxo & 8 others

6th, 7th, 8th and 9th Defendants) vide a plaint dated 31.01.2025 seeking various reliefs including general and special damages, in respect of a claim for alleged infringement of copyright of the Plaintiff’s/ Respondent’s music works. The Notice of Motion 2. Subsequently, the 4th Defendant/Applicant filed its statement of defence dated 18.06.2025 accompanied by the Notice of Motion dated 18.06.2025 (the Motion) seeking an order to have it struck out from the suit and further seeking an order for provision of costs to be made. The Motion is brought under Sections 1A, 1B and 3 of the Civil Procedure Act (CPA); Order 1, Rule 10(2) of the Civil Procedure Rules (CPR) and Article 159 of the Constitution. 3. The Motion is supported by the grounds on the face of it and in the Supporting Affidavit sworn by Cerere Kihoro, a Legal Officer of the 4th Defendant/Applicant, who has deposed that the 4th Defendant/Applicant was improperly enjoined in the suit and that no reasonable cause of action exists against it; that there is no privity of contract between the Plaintiff/Respondent and the 4th Defendant/Applicant; that the onus of uploading music on the Skiza Platform managed by the said Defendant/Applicant ordinarily rests with the 3rd Defendant herein, pursuant to an agreement entered into between the two (2) Defendants and that it is the 3rd Defendant who enters into contract with the respective music owners, for use and remuneration purposes. 4. The 4th Defendant/Applicant has stated that in the stated circumstances, the present suit is incompetent as relates to the 4th Defendant/Applicant and that it would save judicial time for the said Defendant/Applicant to be removed from the proceedings. Grounds of Opposition 5. The Plaintiff/Respondent has opposed the Summons by filing the Grounds of Opposition dated 31.08.2025 citing the following grounds: i. That the Application is frivolous, vexatious, and an abuse of the court process, brought with the sole aim of delaying and derailing the fair determination of the Plaintiff’s legitimate claim. ii. That the 4th Defendant, Safaricom Limited, is properly joined in these proceedings as its digital platform “SKIZA Tunes” is one of the primary avenues through which the Plaintiff’s musical works have been unlawfully reproduced, distributed, and monetized. iii. That the Plaintiff’s claim against the 4th Defendant is not founded on contract but on tortious infringement of copyright, which prohibit unauthorized reproduction, distribution, and monetization of copyrighted works. iv. That privity of contract is irrelevant to this case. Copyright liability attaches to any person or entity who, without authorization, reproduces, communicates to the public, or otherwise deals with protected works — whether directly or indirectly. Safaricom cannot evade statutory responsibility under the guise of lack of contractual relationship. v. That the 4th Defendant’s Skiza Platform hosts, distributes, and derives revenue from the Plaintiff’s musical works, as particularized in paragraph 21 of the Plaint. The Plaintiff’s songs are accessible and monetized through Safaricom’s https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7455/eng@2026-04-21 2

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digital systems, which directly connect Safaricom to the acts of infringement complained of. vi. That the 4th Defendant’s own terms of service and content licensing arrangements require due diligence on ownership of uploaded content. Safaricom’s failure to verify or seek authorization from the Plaintiff before commercializing his works amounts to negligence, unjust enrichment, and statutory violation. vii. That the Plaintiff has pleaded clear, triable issues against Safaricom, including unauthorized conversion of his musical works into digital formats for commercial gain; failure to account for royalties and revenues accrued from the Plaintiff’s works and Refusal to remove or regularize the Plaintiff’s content despite formal requests. viii. That the 4th Defendant is a necessary and proper party within the meaning of Order 1 Rule 10(2) of the Civil Procedure Rules, as its participation is essential for the complete and effective adjudication of the dispute. Without Safaricom’s involvement, the court cannot grant full relief or trace proceeds of the Plaintiff’s exploited works. ix. That the question of liability, whether direct or contributory, is a matter for trial, not for summary determination at the interlocutory stage. The application improperly invites the court to make findings of fact and law prematurely. x. That the 4th Defendant’s argument that striking it out will “save judicial time and costs” is misconceived. The overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution is to ensure substantive justice, not technical elimination of parties with clear roles in the alleged wrongdoing. xi. That the Plaintiff has pleaded a reasonable cause of action against the 4th Defendant. Consequently, the application is devoid of merit and should be dismissed with costs.” sic 6. Additionally, the Plaintiff has sworn a Replying Affidavit in opposition to the Motion in which it is deposed that contrary to the averments made earlier, the 4th Defendant/Applicant has played an active role in the hosting and commercialization of at least 10 of his musical works without his consent or authorization; that the 4th Defendant/Applicant has directly benefited from the continued exploitation of the Plaintiff’s musical works and that having its name struck out from the present suit would defeat the course of justice and further that the issue raised in the instant Motion constitutes triable issues that ought to be determined on their merits at the trial. 7. In A rejoinder, Cerere Kihoro, by way of her Further Affidavit sworn on 26.01.2026, has reiterated her earlier averments that the music content played via the 4th Defendant’s/Applicant’s Skiza Platform is supplied by licensed Content Service Providers (CPS) or Premium Rate Service Providers (PRSP) pursuant to agreements entered into between the respective Providers and the 4th Defendant/ Applicant; that in the present instance, a CPS Agreement was executed between the 3rd Defendant and the 4th Defendant/Applicant, thereby causing the Plaintiff’s/Respondent’s cause of action to lie against the 3rd Defendant as opposed to the 4th Defendant/Applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7455/eng@2026-04-21 3

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8. The deponent has deposed, further, that no material has been placed before the court to demonstrate that the Plaintiff/Respondent is the true owner of the music works purported to have been misused; that the 4th Defendant/Applicant has at all material times operated under the presumption that the 3rd Defendant has obtained the requisite authorization from the respective music artists, for use of their music works on the Skiza Platform; that contrary to the averments made by the Plaintiff/ Respondent, she has no knowledge of any steps being taken by the Plaintiff/Respondent to engage the 4th Defendant/Applicant prior to filing suit, in relation to the alleged infringement of his music copyright and that no basis has been laid for including the 4th Defendant/Applicant in the present suit and therefore the claim against it cannot stand. Submissions 9. The Motion was canvassed through written submissions. In support of the Motion, the 4th Defendant/ Applicant has anchored its submissions on Order 1, Rule 10(2) of the CPR which lays down the principles for consideration by a court in determining whether to strike out a party from a suit. It also relied on the case of George Stephen Muhoro v Catherine Wanjiku & 5 others [2014] KEHC 6772 (KLR) where the court in determining whether to strike out a party from the suit in question, addressed the issue whether the presence of such party was necessary in adjudicating and determining the issues arising in the suit. 10. The 4th Defendant has argued that in order for one to be deemed a necessary party to a suit, it ought to be demonstrated that the issues in contention cannot be adequately determined without the presence of such party, as was held in the case of Donald Muhonda Andolo v Pinnacle Developers Limited & 3 others [2018] KEHC 7148 (KLR). 11. In that regard, the 4th Defendant/Applicant submitted that it is not a necessary party to the present suit, for the reasons earlier set out in the respective affidavit material supporting the Motion; That the cause of action in the instant suit primarily lies against the 3rd Defendant and not the 4th Defendant/ Applicant, the latter being the entity that merely provides the telecommunications network for the music works but does not source out or upload the same; that no privity of contract exists between itself and the Plaintiff/Respondent, in order for the claim to be tenable as against it and that prior to the suit, the 4th Defendant/Applicant was unaware of any infringement of the alleged music copyright. 12. It was further submitted that in the circumstances and pursuant to Section 35(5) of the Copyright Act, the Plaintiff would thus not be entitled to claim damages from the 4th Defendant/Applicant and that Section 56 of the Computer Misuse and Cybercrimes Act, a service provider is excused from any liability arising from a third party’s contravention through use of its systems. 13. On the part of the Plaintiff/Respondent, it was submitted that a suit should not be summarily dismissed unless it is shown that the same does not disclose a reasonable cause of action, as was determined in the case of DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1; that a party should not be struck out from a suit, where it is likely that a relief may be claimed against such party and where substantive disputed issues are yet to be resolved, as was stated in the case of George Stephen Muhoro v Catherine Wanjiku & 5 others [2014] KEHC 6772 (KLR). 14. The Plaintiff/Respondent has contended that contrary to the averments and submissions brought forward by the 4th Defendant/Applicant, several claims have been made against it in the pleadings and several reliefs are likewise sought against it together with the remaining Defendants, jointly and severally; that the 4th Defendant/Applicant has been the primary user and commercial exploiter of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7455/eng@2026-04-21 4

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his music works thereby making it a necessary party to the suit and that the 4th Defendant/Applicant cannot refute liability at this stage of the proceedings. 15. The Plaintiff’s/Respondent has submitted, in the overall, that the threshold for striking out a party from the suit has not been met in the instant Motion and urged that the same be dismissed with costs. 16. The record shows that the 1st, 2nd, 3rd, 5th, 6th, 7th, 8th and 9th Defendants did not participate in the proceedings relating to the instant Motion. Analysis and Determination 17. I have considered the Motion and the grounds in support. I have considered the Grounds of Opposition and the Replying Affidavit of the Plaintiff, as well as the rival submissions. The singular issue arising from these proceedings is whether the 4th Defendant/Applicant has met the threshold for grant of the prayer sought. 18. Order 1, Rule 10 (2) of the CPR offers guidance on the above issue. It provides that: The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added. 19. 20. To my mind, the court in deciding whether to strike out or to add a party to a suit, has to determine the following issues as stipulated in Order 1 Rule 10(2) CPR: a. Whether or not the party to be substituted or struck out is a necessary party to the suit; and b. Whether or not the presence of such party will assist the court in effectively adjudicating upon and settling all questions arising out from the suit. In determining whether or not to strike out a party from the suit, the court must exercise caution to avoid prejudicing any party in the suit. The issue of striking out the 4th Defendant/Applicant at this stage of the proceedings before hearing the entire suit on merit may lead to injustice, hence the need for caution. The Court of Appeal in the case of DT Dobie and Company (K) Ltd vs Joseph Mbaria Muchina & Another (1982) KLR 1 stated as follows in respect of the issue: “ The power to strike out should be exercised only after the court has considered all the facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial judge...” 21. Regarding the first issue on the necessity of a party to a suit, the court in the case of Donald Muhonda Andolo v Pinnacle Developers Limited & 3 others [2018] KEHC 7148 (KLR) defined who constitutes a ‘necessary party’ whilst borrowing from the decision in Jan Bolden Nielsen Versus Herman Phillipus Steyn & 2 others (2012) eKLR thus: “ In my view, a necessary party is a person who ought to have been joined as a party and in whose absence no effective decree can be passed in a proceeding by the court if a necessary https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7455/eng@2026-04-21 5

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party is not impleaded, the suit may be a non-starter as the reliefs sought if granted may be ineffective.” 22. In the instant Motion, the 4th Defendant/Applicant on the one hand has denied that it is a necessary party to the present suit for the reasons explained in this Ruling, whereas the Plaintiff/Respondent has maintained that the 4th Defendant/Applicant is a necessary party to these proceedings. 23. I have perused the pleadings and the material on record. I have observed that the Plaintiff’s/ Respondent’s claim against the respective Defendants is anchored on alleged infringement of his copyright in relation to his music works. Further, the Plaintiff/Respondent has stated that his music was played without his authorization or consent, on platforms owned and/or controlled by the 4th Defendant/Applicant as well as the 5th and 6th Defendants and that he did not receive any monetary benefits therefrom. 24. I have noted from the record, specifically on paragraph 5, that the 4th Defendant/Applicant is sued as the host of Skiza Tunes Platform which the Plaintiff claims that it plays over 10 of his songs. The Plaintiff, further, accuses the 3rd and 4th Defendants of jointly and severally converted the Plaintiff’s musical works into digital formats and offers these works for sale to the public without seeking authority or being licensed and that among the reliefs sought in the Plaint include provision of accounts and records of the 3rd and 4th Defendants’ downloads made on the 4th Defendant’s portals including Skiza Platform in respect of the Plaintiff’s musical works. 25. My careful consideration of the circumstances of this case as stated above leads me to the conclusion that it would defeat the cause of justice if this court were to find that the 4th Defendant/Applicant is not a necessary party to this suit. This would prejudice the case for the Plaintiff, especially at this preliminary stage, before this court has listened to the parties and determined this case on merit. 26. On the issue whether the presence of the 4th Defendant/Applicant will assist in effectively adjudicating and determining the issues pertaining to the suit, I am satisfied for the reasons given in this ruling that the presence of the 4th Defendant/Applicant is necessary for this court to adequately adjudicate and determining the issues arising from this suit. My considered view, in respect of this issue, is that it is by listening to the evidence of all the parties, analyzing and considering the same that this court will be able to render justice for all concerned. 27. Consequently, it is my considered view that it would not be a proper exercise of my discretion to strike out the 4th Defendant/Applicant from the suit and therefore it is my finding that the Notice of Motion dated 18.06.2025 cannot stand and is hereby dismissed with costs to the Plaintiff/Respondent. 28. It is so ordered. DATED, SIGNED AND DELIVERED THIS 21ST DAY OF APRIL 2026. S. N. MUTUKU JUDGE In the presence of: 1…………………………………….for the 4th Defendant/Applicant 2………………………………….for the Plaintiff/Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7455/eng@2026-04-21 6

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