A Nairobi court has set aside a Sh1 million damages slapped on content creator Brian Mutinda and Syinix Electronics Ltd for using “Wee Kamu’ words in an online advert, without the consent of singer Hubert Nakitare, popularly known as Nonini.
The award was entered against Mr Mutinda and Syinix Electronics Ltd for copyright infringement on March 23 after they failed to appear in court to defend themselves.
However, Mr Mutinda convinced the court to set aside the judgment, arguing he was not given a chance to present his side of the story.
Milimani chief magistrate Hosea Ng’ang’a directed the parties to appear before him on June 11 for submissions and getting a judgment date. The content creator further submitted that the mistakes of his former advocate should not be visited on him.
“The failure to file a defense and defending of the matter was occasioned by the mistake of my previous advocates. The said inadvertent mistake of the advocates should not be meted on me as an innocent litigant,” he submitted.
The creator goes on to state he only learnt of the judgment through social media as he accused Nonini of trolling him with the judgment on the X platform once it was entered in his favour.
“I became aware of the said judgment on 23rd March 2023. The Plaintiff/Respondent (Nonini) through his official Twitter handle tagged me on a tweet demanding that he be paid money by Monday,” Mr Mutinda states in his affidavit.
He said he followed the matter up with his previous advocates and was informed that the decision had been entered in default.“I humbly seek for [sic] stay of the court’s judgment and all the proceedings that flowed from the judgment and decree thereof and pray that this application be heard and determined urgently on priority basis. If the said ex-parte judgment is not set aside and the plaintiff/respondent goes ahead to execute against me, I will suffer loss and damages that cannot be monetarily compensated,” he submitted.
Mr Mutinda has denied any wrongdoing in the creation of the contentious advertisement and instead blamed it on Syinix Electronics Ltd, the company that contracted him to create the content.
“If indeed such a video exists and was posted by the 2nd defendant (Syinix) as alleged, the same was done by the 2nd defendant in its own capacity. The 1st defendant cannot be apportioned liability for acts done by the 2nd defendant,” Mr Mutinda said in papers filed in court. The content creator adds that it was Syinix that stood to benefit from the content, hence liability cannot be apportioned to him.
“Defendant avers that the content in the said video was for the benefit of the 2nd defendant and the 1st defendant was thus under no legal obligations to obtain a licence for the said video.”
