The Statute Law (Miscellaneous Amendments) Bill, 2018 seeks to make various, wide-ranging amendments to existing intellectual property (IP) law-related statutes. The Bill contains proposed amendments to the following pieces of legislation: The Industrial Property Act, 2001 (No. 3 of 2001), The Copyright Act, 2001 (No. 12 of 2001), The Anti-Counterfeit Act, 2008 (No. 13 of 2008) and The Protection of Traditional Knowledge and Cultural Expressions Act, 2016 (No. 33 of 2016). The Memorandum of Objects and Reasons for the Bill is signed by Hon. Aden Duale, Leader of Majority in the National Assembly and it is dated 29 March 2018. This blogpost will focus on the proposed changes to The Anti-Counterfeit Act.
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.
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.
“We wish to underscore the importance of fostering creativity through respect and protection of intellectual property rights of others. A nation cannot be built on disregard for originality and promotion of copy cats.” – Excerpt from a press statement by Transcend Media Group.
This blogger has come across the recent case of Transcend Media Group Limited v. Saracen Media Limited & 2 Ors Civil Case No. 3644 of 2016 in which Senior Magistrate E.K Usui has granted temporary injunctive orders sought by Transcend, the applicant against Saracen and the two other respondents. The court granted Anton Piller orders allowing Transcend to enter the premises of the respondents to preserve, seize, collect and keep machines, data, documents and storage material relating to Transcend’s copyright work under the supervision of Kenya Copyright Board (KECOBO) officers. In addition, the respondents have been restrained by the court from any further infringement, alienation, distribution and storage of Transcend’s copyright work pending hearing of the suit.
According to a Business Daily report here, the genesis of this copyright dispute is a Sh208 million tender by Safaricom seeking to procure the services of an advertising agency to handle the mobile network operator’s youth segment brand communication which is now called BLAZE. Transcend submitted its strategy proposal and creative body of works to Safaricom but lost the bid to Saracen. Transcend alleges that Safaricom awarded the business to Saracen and a Company (Fieldstone Helms Limited) owned by former Transcend staff who were involved in Transcend’s bid including the team leader. As a result, Transcend claims that Fieldstone Helms is now “illegally implementing” Transcend’s intellectual property (IP).
This blogger has recently come across an astute ruling by the High Court in the case of Music Copyright Society of Kenya v Chief Magistrate’s Court & Inspector General of Police  eKLR. Justice L. Kimaru sitting in the High Court was approached by the authors’ collecting society, Music Copyright Society of Kenya (MCSK) to stay orders issued by the Magistrate’s Court freezing all the bank accounts of MCSK following a request by the Serious Crimes Unit under the Directorate of Criminal Investigations (DCI). DCI requested that MCSK’s accounts be frozen as it investigates complaints made by MCSK members in regard to alleged misappropriation and theft of funds at the collecting society.
After carefully evaluating the facts before him, Kimaru J ruled that the investigations were lawful and based on several complaints received by DCI from MCSK members and that the orders to freeze MCSK’s accounts were within the precincts of the law.