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.
Before delving into the present judgment, many readers will recall that Gacheru has previously obtained a High Court judgment in his favour in case of Albert Gacheru Kiarie T/A Wamaitu Productions v Simon Muiruri Kirehu T/A One Step Nduti Music Store  eKLR in which he successfully claimed the defendant had infringed on his copyright by reproducing the recorded music and sold the music in the form of CDs. The court’s judgment was in favour of the plaintiff, Gacheru and granted him the injunctive orders sought. The court considered the plaintiff’s evidence of the cassettes he had produced and found it satisfactory in answering the question of whether the defendant had infringed the plaintiffs’ copyright. However, regarding loss of business and profits and damages and royalties claimed, the court found that there was insufficient evidence to enable a fair assessment of the same and therefore ordered an inquiry into damages to be undertaken before the Deputy Registrar of the court.
Returning back to the present judgment, the High Court found in Gacheru’s favour on the crucial question of whether one can undertake private prosecution and serve as a witness in the same criminal case. In this regard, the learned judge stated as follows:
“In that context [Section 88 of the Criminal Procedure Code, Cap 75], Subsection 3 above is of note and it provides that a person conducting private prosecution may do so personally or by an Advocate. As it is worded, this provision affords the person conducting a private prosecution the option to choose to conduct it himself / herself or by way of an Advocate. There is no prescription that compels a person conducting such private prosecution to engage an Advocate for the same purpose. I therefore do not find that the Magistrate was correct in ordering that the Petitioner, having been properly granted permission to conduct the private prosecution, must conduct the same by way of an Advocate or not conduct it at all if he wished to serve as a witness in the case. But even having said that, I note that there is also no universal prohibition in law, known to me, against a person conducting a private prosecution also serving as a witness in the criminal case that he/she is privately prosecuting.”
The court went further to address itself to several contentions made against Gacheru’s petition including: (1) that there are difficulties arising when the Petitioner takes the witness stand in a case which he is privately prosecuting; and (2) that Gacheru does not meet the requirement of not being motivated by malice.
With regard to the first contention, the court disagreed with the respondents find that that there are no difficulties that may impair and therefore interfere with apposite private prosecution of the case, even with the private prosecutor serving as a witness for himself. On this point, the judgment states:
“From a pragmatic perspective, the process would certainly be feasible and uncomplicated because the private prosecutor would commence his case by calling his witnesses. Being the primary witness in this case, the Petitioner would leave the prosecutor’s table and proceed to the witness dock to submit his witness testimony. The Court may interrupt him if need be for clarification of any unclear evidence and the Petitioner would do then be cross-examined by the defence Counsel and thereafter clarify issues arising as he normally would under cross-examination if he so wishes. He would then go back to the prosecutor’s table and call other prosecution witnesses to testify on his behalf. The witnesses would also be cross-examined, and re-examined by the Petitioner if necessary. The Petitioner would then close his case and the remainder of the trial process would proceed as usual.”
With regard to the second contention, the crux of the Respondents’ submission was that the Petitioner was being driven by some ulterior motive and malice as he had vested interest in the matter and he therefore cannot conduct the prosecution in good faith. While dismissing this contention as unfounded, the court stated as follows:
“(…) even without delving into the considerations at the Magistrates’ Court that led to the first decision that the Petitioner can privately prosecute Criminal Case No. PP 06 of 2004, I do not take issue with the Petitioner having a vested interest in the matter because this is the basis upon which he likely suffered injury and is therefore testament to the fact that he indeed has standing to allow him to seek and be granted permission to prosecute the case. Such interest, I resolve, cannot be arbitrarily equated to ulterior motive and malice. This Court would in nay event be remiss in disqualifying one from privately prosecuting a matter personally within the confines of the law (and in this case effectively prevent private prosecution of the matter entirely) on the very same basis which informed the decision of the Magistrate to grant him permission to privately prosecute.
(…) I am not blind to the fact that the vested interest may manifest itself in the form of bias during the conduct of the private prosecution. But even in consideration of this fact, there still does not exist sufficient reason at this point to interfere with the private prosecution of the case by the Petitioner, and his serving as a witness in the case, so that only when such bias manifests in the course of trial, can the Court interfere. The import of this in the present context is that, only when the Petitioner allows his interest (the current basis of his standing) to negatively impact the neutral and fair conduct of the trial, can the Court intervene and proceed to terminate such a private prosecution.”
The court was also quick to point out that all prosecutions are subject to the Constitution and the law which allows interference or termination of any private or public prosecution which is in contravention of a person’s constitutional rights and freedoms.
In a media report earlier this year, we are told that 50 year old Gacheru has already successfully graduated from law school and is preparing to sit his bar exams this year so that he can better equip himself to pursue his IP rights in court. We wish him all the best!