Copyright and Law of Succession: High Court Suspends Payments of Les Wanyika Royalties

 

This blogger has come across the recently reported case of Sijali Salum Zuwa & 4 others v Pamela Akinyi Atieno [2016] eKLR involving a dispute over authorship and ownership of several musical works attributed to the legendary band, Les Wanyika. From 1978 to date, several founding band members have died namely Omar ‘Professor’ Shaban, Issa Juma, Mohamed Tika, John Ngereza and Foni Mkwanyule.The surviving members of the band filed suit in the High Court challenging a grant of letters of administration obtained by Pamela Akinyi, the widow of Shabani over her late husband’s estate including some forty eight (48) songs by Les Wanyika. One such song is “Pamela” (captured in the video at the start of this post) written by Shabani and dedicated to Pamela, who is the defendant in the present suit.

The presiding judge Muchelule J had initially indicated that matter would be disposed of by way of written submissions based on the affidavits that had been filed and that he would deliver a judgment last month. However the judge has now ruled that the matter be determined by way of oral hearing where the parties and their witnesses can testify and be cross-examined, and all relevant documentary evidence received can be scrutinised. In the meantime, the court has directed that implementation of the grant obtained by Pamela be stayed and that any royalties due to Les Wanyika should not be paid to Pamela but be deposited into Court until the matter is determined.

The background of the case is as follows: Les Wanyika Band was founded by Omar Shaban Salim (now deceased), Sijali Salum Zuwa, Rashid Juma, Tommy Malanga, Joseph Justi Shayo and Hassan Mohammed Ngao. Pamela received letters of administration over the estate of Omar Shaban Salim on the basis of which she claimed all the rights under copyright relating to the musical works of Les Wanyika from the year 1978 to date. As a result, Pamela has been exclusively collecting and/or receiving all the royalties from the music of Les Wanyika.

Aggrieved by the status quo, the remaining band members challenged Pamela’s sole claim to the royalties from the said music. The band members argued that they were not only co-founders of the Band but they were also “co-creators” and “co-owners” of all the music of Les Wanyika. As a result, the band members asserted both their economic and moral rights under copyright. The band members contended that they were “being discriminated against” by “not receiving any of the royalties from the music of Les Wanyika”. With regard to their droit moral claim, they averred that they were not “given the due copyright recognition due to them with regards to the music of Les Wanyika”.

In light of the above, the present ruling by Muchelule J is a temporary victory for the surviving band members. Since it appears unlikely that the parties will opt for an out-of-court settlement in this matter, the court will have to consider afresh the basis of Pamela’s grant over the Les Wanyika music weighed against the competing rights and interests of the remaining band members. As always, this blogger will keep readers posted on the developments in this matter.

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