Nyota Ndogo performing at a past event. Photos/FILE
Mobile network operator, Safaricom, and ringtone provider, Cellulant, have been restrained from distributing musical works of 11 top Kenyan artists until a case brought by the Music Copyright Society of Kenya (MCSK) on the ownership of copyright is heard and determined.
The ruling delivered by Lady Justice Martha Koome effectively stops Safaricom from distributing the music to over 10 million subscribers through their service “Skiza.”
But Lady Justice Koome declined to grant orders that court bailiffs be allowed to search the premises of Safaricom and machines to remove stored digital music.
Cellulant was enjoined in the suit after Safaricom admitted selling the music to subscribers, but claimed they were given the rights by Cellulant Kenya Ltd.
It is Safaricom that sought orders to enjoin Cellulant in the court proceedings as third parties.
MCSK submitted that unless Safaricom was restrained by an order of injunction, they would continue infringing on the society’s rights and causing irreparable damage.
Cellulant claims to enjoy the copyright owing to agreements signed with various artists.
However, they admitted using the works of Ms Mwanaisha Mohamed popularly known as “Nyota Ndogo” without authorisation. The song in contention is Watu na Viatu.
Mwanaisha swore an affidavit denying ever authorising Safaricom and Cellulant to use her works.
Cellulant further told the court that it had permission by Les Wanyika to use its music, which includes popular hits, Kasuku, Wazazi, Pamela and Barua Yako, Tafuta Wako among others.
However, the court noted that the person described as Alfan Maraga Kandiro who purportedly gave Cellulant authority on behalf of the estate of Les Wanyika “is a stranger because the works of the group belongs to the late John Andrew Ngereza.”
It is Ngereza who assigned the rights to MCSK, according to submissions made by the society’s lawyer.
Another musician Mr Denis Kagigia who goes by the name “DNA” also denied having dealt with Cellulant with regard to his works.
An agreement signed by Cellulant and Njomaimo Enterprises Ltd tabled in court indicating that DNA had authorised his works was faulted for lack of execution.
“It is vague because the songs and their titles are not identified.”
DNA songs include top hits like Banjuka, Kama Kawaida and Banjuka Remix.
MCSK lawyers urged the court to rule that there was a dispute over the works belonging to the society and which had been used by Safaricom and Cellulant and order that the defendants be restrained from further infringements.
In defence, Safaricom said MCSK had failed to demonstrate a breach of contract.
“MSCK is not an artist and has not produced any work at all. They only claim to be assignees and cannot prove that they are the copyright owners,” submitted Safaricom, adding the artistes were free to use their works as they please.
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