Court declines to halt musicians’ royalty collections

The dispute also concerns allegations that MCSK has split into two warring camps, with each setting up its own bank accounts and pay bill accounts for collecting revenue from music users in Kenya and worldwide.

Mr Ngemu and Mr Esikuri argue that the alleged loss was revealed by Kecobo on February 2, 2024, when it stated that MCSK could not sufficiently account for the amount.

According to them, though Kecobo forwarded a letter to the office of the Ethics and Anti-Corruption Commission for investigations to be undertaken, no action has been taken against officials of the MCSK alleged to have perpetrated the said mismanagement.

They are also aggrieved that Kecobo “deemed it not necessary or fit to report the said loss of funds to the Office of the Director of Public Prosecutions”.

The artistes have applied for orders compelling Kecobo, the Cabinet Secretary of Gender, Culture, Arts & Heritage, and the Attorney-General to enforce various provisions of the Copyright Act, including Section 46 on Collective administration of Copyright.

Pending the hearing and determination of the case, the artistes wanted the court to issue a temporary order stopping MCSK from collecting royalties from users of copyrighted works.

Read:  Court deals MCSK major blow in fight for royalties

They also wanted Kecobo to set up an alternative independent payment mechanism for the collection of royalties.

However, Justice Roseline Aburili declined, saying the orders sought were like a mandatory order which, if granted at this stage of trial, would amount to issuing final reliefs before hearing the substantive dispute.

“A stay would effectively suspend the collection of royalties for artistes and musicians, thereby paralysing a statutory function bestowed upon the interested party (MCSK) and causing prejudice to third parties who are not before the court,” said Justice Aburili.

Regarding the alleged leadership wrangles at MCSK, which the artistes said were detrimental to them, the court said this further complicates any attempt to devise a neutral custodial arrangement for the funds.

The musicians told court that MCSK was embroiled in leadership wrangles, which had slipped to two warring camps, each purporting to represent the affairs of musicians in the country. They allege there was no accountability mechanism from Kecobo.

“The respondents have the statutory mandate to reign over the affairs of the Interested Party (MCSK) but have deliberately ignored and or neglected to undertake their statutory duties to enforce the provisions of the Copyright Act,” argued the petitioners.

Justice Aburili also declined objections raised by the MCSK against the suit. The judge said the issues raised by the applicants, such as those touching on loss of funds and Kecobo’s alleged failure to act, are not frivolous.

“These allegations raise weighty questions as to whether the first respondent has discharged its statutory obligations in relation to the enforcement of the law and accountability of the interested party to its members. In the court’s view, such matters are not frivolous but merit full ventilation through a substantive motion,” said the judge.

This case marks the third major dispute over MCSK's royalty management in the past five years, as there were two other cases at the High Court commercial division against the organisation.

The artistes claim that they have suffered loss of economic rights and damage due to the actions on the part of the Kecobo, the Ministry, the Attorney-General, and MCSK.

The outcome of the case could affect over 10,000 registered musicians who rely on MCSK for royalty distribution.

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