The High Court of Kenya sitting at Nakuru has recently handed down an interesting judgment in the case of Republic v Kenya Association of Music Producers (KAMP) & another Ex-Parte Nakuru Municipality Pubs, Bars, Restaurants and Hotel Owners Association (Suing Through Their Trustees)  eKLR. A copy of the judgment is available here. In this case, Nakuru Municipality Pubs, Bars, Restaurants and Hotel Owners Association sought judicial review orders of prohibition to restrain two collective management organisations (CMOs) from collecting licence fees and or levies from the membership of the Association. The CMOs in question: Kenya Association of Music Producers (KAMP) and Performers Rights Society of Kenya (PRiSK), two related rights CMOs representing owners of sound recordings and performers respectively.
The crux of the Association’s case against the CMOs is as follows:
“It is argued that the proposed levies and licences were never communicated to their association or any of the members, and that as they were not notified, or invited to participate in their formulation and approval nor gazetted/published, the Respondents [CMOs] failed in their duty to communicate the passage and approval of the levies to them, they are in breach of rules of natural justice by withholding information that would affect them economically and financially and a breach of their constitutional rights as enshrined in Article 43 of the Constitution. (…)”
It is trite law that the CMOs being private entities have no obligation to perform public duties, and therefore Judicial Review proceedings were inappropriate. On this basis alone, the learned judge dismissed the suit against the CMOs in line with the earlier precedent set in the PERAK case, involving the same two CMOs – previously discussed here.
Administrative law aside, this blogger submits that Nakuru Association may have had better chances challenging the constitutionality of section 30A of the Copyright Act from a consumer protection perspective anchored on Article 46 of the Constitution.
Finally, this blogger is of the view that this judgment may have opened room to use judicial review proceedings to the approval and gazettement of tariffs under section 46A of the Copyright Act. The relevant obiter remarks by the court read as follows:
“I further proceed to state that had I found that the Respondents had an obligation to perform public duties, and therefore Judicial Review proceedings were appropriate, I would have held them liable for departure from rules of natural justice and contravention of the principle of public participation, communication and consultation with the Applicants who are stakeholders in the matter of the levies and licence fees, in addition to contravening Article 47 of the Constitution that gives every person a right to fair administrative action that is efficient, lawful, reasonable and procedurally fair.”
It is submitted that the above statement may be construed as a clear warning to the Attorney General to take into account the rights of users when gazetting tariff but also when exercising powers under section 46A to exempt users from paying royalty to CMOs.