Mobile Developer Claims Copyright over Songa Music App by Safaricom, Radio Africa

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The recently reported High Court case of Evans Gikunda v. Patrick Quarcoo & Two Others [2018] was born out of a business deal gone bad. At the heart of this dispute is a music application (app) that the plaintiff (Gikunda) claims to have conceptualised, designed and developed between 2012 and 2016. However Gikunda joined the employ of the 2nd Defendant (Radio Africa Group Limited) in 2013 where the 1st Defendant (Quarcoo), the Chief Executive at Radio Africa, ‘persuaded Gikunda to partner with him to ensure that the product gets to market’.

According to Gikunda, Quarcoo proposed that that once Radio Africa’s Board of Directors sanctioned its participation in his app, they would share out the ownership of the app as follows: Radio Africa – 40%; Gikunda- 30%; Quarcoo- 20%; and the remaining 10% to a strategic partner. However, in mid-2016, Gikunda resigned from Radio Africa after which he alleges that Quarcoo and Radio Africa sold the app, without his knowledge, to the 3rd Defendant (Safaricom).

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Goodwill as Constitutionally Protected Property: High Court Case of Bia Tosha Distributors v Kenya Breweries, EABL, Diageo

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“I am acutely aware of the far reaching consequences of my conclusive finding that purely constitutional issues and questions have been borne out of a hitherto commercial relationship and hence the court’s jurisdiction rather than agreed mode of dispute resolution. I however do not for a moment view it that the framers of our Constitution intended the rights and obligations defined in our common law, in this regard, the right to freedom of contract, to be the only ones to continue to govern  interpersonal relationships.” – Onguto, J at paragraph 101 of the ruling.

A recent well-reasoned ruling by the High Court in the case of Bia Tosha Distributors Limited v Kenya Breweries Limited & 3 others [2016] eKLR  tackled the complex question of horizontal application of the Constitution to private commercial disputes governed by contracts with private dispute resolution mechanisms. More interestingly, the court had to consider whether the amount of Kshs. 33,930,000/= paid by the Petitioner to acquire a ‘goodwill’ over certain distribution routes or areas of the Respondents’ products can be defined as ‘property’ held by the Petitioner and as such protected under Article 40 of the Constitution.

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