On 31 August 2016, President Uhuru Kenyatta assented to the Protection of Traditional Knowledge and Cultural Expressions Bill, No.48 of 2015. The Bill was published in Kenya Gazette Supplement No. 154 on 7 September 2016 cited as Protection of Traditional Knowledge and Cultural Expressions Act, No. 33 of 2016. The date of commencement of the Act is 21 September 2016, which means the Act is now in force.
In previous blogposts here, we have tracked the development of this law aimed at creating an appropriate sui-generis mechanism for the protection of traditional knowledge (TK) and traditional cultural expressions (TCEs) which gives effect to Articles 11, 40 and 69(1) (c) of the Constitution. This blogpost provides an overview of the Act with special focus on the issues of concern raised previously with regard to the earlier Bill.
Maurice Okoth, former MCSK CEO (left) with his lawyer at the High Court for the delivery of the judgment.
Recently, the High Court delivered its judgment in the case of Republic v. The Director of Public Prosecutions and 4 Others Ex Parte Shamilla Kiptoo and 2 Others HCMA 510 of 2015 (Consolidated) in which the court granted the orders of certiorari and prohibition sought by the Applicants namely Maurice Okoth, Music Copyright Society of Kenya (MCSK) former Chief Executive Officer (CEO), James Maweu Mutisya, former MCSK Board Director, Lillian Njoki Thuo, MCSK Management Accountant, Peter Kisala Enyenze, MCSK Regional Manager and Shamilla Kiptoo, Nasratech Limited Managing Director (and Okoth’s wife).
The order of Certiorari granted by the court quashes the decision, declaration and directive of the Director of Public Prosecutions (DPP), Directorate of Criminal Investigations (CID), Inspector General of Police (IG), Chief Magistrate’s Court and the Attorney General (collectively referred to as the Respondents) to prefer criminal charges against the Applicants based on the facts contained in the Charge Sheet dated 18th November 2015 in Criminal Case No. 1904 of 2015 – Republic v. Dan Maurice Mwande Okoth & 6 others. The order of Prohibition granted by the court directed to the Respondents prohibits the prosecution of the Applicants based on the facts contained in the Charge Sheet dated 18th November 2015 in Criminal Case No. 1904 of 2015 – Republic versus Dan Maurice Mwande Okoth & 6 others. Finally, the court ordered the costs of the application to be borne by the DPP, CID and IG.
“An act, it is my view, is not ultra vires if it is found to be within the main purpose, or within the special powers expressly given by the statute to effectuate the main purpose, or if it is neither within the main purpose nor the special powers expressly given by the statute, but incidental to or consequential upon the main purpose and the act is reasonably done for effectuating mandate.” – Justice GV Odunga at paragragh 27.
In a recent High Court ruling in the case of Republic v Assistant Registrar of Trade Marks Ex Parte Strategic Industries Limited & another  eKLR, the court had to determine whether the Registrar of Trade Marks has the power under rule 52 of the Trade Marks Rules to permit further evidence to be adduced after the statutory declaration has been filed under rule 51 of the said Rules.
In the case of Kenya Revenue Authority v Doshi Iron Mongers & another  eKLR, the Court of Appeal was called upon to determine whether Section 5 of the Customs and Excise Act gives an officer of the Appellant (KRA) under the Act powers, rights and privileges akin to those given to a police officer in execution of his duties under Cap 84 of the Laws of Kenya, in particular that such an officer can enforce intellectual property (IP) rights including raids, arrests and seizure of goods not listed under Schedule 8 of the Customs Act.
In the lower court, the respondents had complained that their warehouses in Mombasa and Nairobi were raided between 1996 and 2006 by the appellant for no rhyme or reason, purporting to search for counterfeit, substandard and uncustomed goods particularly ‘BIC’ biro pens, battery cells, and other items at the behest of companies such as Haco Industries who were the assigned users of the trade mark.
At the Fifty-Fifth Series of Meetings of the Assemblies of the Member States of WIPO (October 2015), the WIPO General Assembly, at its Forty-Seventh (22nd Ordinary) Session, decided with respect to the issue of new WIPO External Offices, during the 2016/17 Biennium that priority should be given to Africa. For this purpose, Member States were encouraged to submit their hosting proposals to be considered under the Guiding Principles.
A recent judgment by the Court of Appeal in the case of Mount Kenya Sundries Ltd v Macmillan Kenya (Publishers) Ltd  eKLR involved a copyright infringement claim with respect to two maps of Kenya produced between 1985 and 1990 by the Respondent, Macmillan (now known as Moran Publishers). At the High Court, Macmillan had successfully proved that Mount Kenya had reproduced and sold its maps without its authorisation contrary to the Copyright Act. This High Court decision has been discussed previously here.
In the present appeal, the court reconsidered the evidence, evaluated the submissions of both parties in order to determine several key issues including locus standi (standing to sue), copyright ownership of the maps and copyright infringement of the maps.
A recent judgment by the High Court in the case of Albert Gacheru Kiarie T/A Wamaitu Productions v James Maina Munene & 7 others  eKLR is likely to have profound ramifications for the enforcement of intellectual property (IP) rights in Kenya. At the heart of this case is a catalogue of widely popular vernacular songs such as “Mariru (Mwendwa Wakwa Mariru)” which is featured in the video above by Gacheru and produced by the latter’s company, Wamaitu.
According to Gacheru, his music and those of other rights holders he was involved with through his Wamaitu label have all been the subject of piracy and copyright infringement for many years. From 2004, Gacheru was the complainant in a criminal copyright infringement case (Criminal Case No. PP 06 of 2004) and was later granted permission to privately prosecute the case but he was then barred from continuing to undertake the private prosecution for the reason that he intended to serve as a witness in the same case. Gacheru appealed this decision insisting that he should be allowed to act as private prosecutor and witness in his case. The present judgment settles this 12 year old dispute on this matter.