The High Court has struck out a case filed by the families of two Congolese legendary musicians against nine companies over alleged copyright infringement.
They wanted the court to stop Safaricom Ltd, Google (YouTube) and others from collecting or dealing with royalties concerning artistes Joseph Kiambukuta Londa, alias Josky Kiambukuta, and Joseph Kanyinda Mpoyi, alias Djo Mpoyi.
The two singers, songwriters and performers were members of TPOK Jazz and died in 2021and 1993, respectively.
The case was filed in 2020 by Hellen Wilfrida Arika with Sysera Milani Ignarce and Eric Sentama Mpoyi, son of Djo Mpoyi, who has since passed away.
Ms Arika claimed she had the power of attorney granted to her by Kiambukuta and Eric Mpoyi with rights to sue and defend the two artistes’ musical and artistic rights. Milani and Mpoyi sued as administrators of the estates.
But Justice David Majanja ruled that Ms Arika no longer has the power of attorney regarding Kiambukuta and Djo Mpoyi. This is because that power is extinguished upon the death of the donor.
“She cannot maintain this suit on the basis of the powers of attorney granted to her by the personal representatives of the deceased artistes,” Justice Majanja said.
He made the findings while ruling on objections raised by some of the companies against the lawsuit.
The sued firms are Tamasha Corporation Ltd, Liberty Afrika, Xpedia, Safaricom, Kenya Association of Music Producers, Google LLC (YouTube), Mdundo Kenya, Boom Play and Apple (iTunes).
The judge also explained that the plaintiffs lacked the capacity to pursue the case as personal representatives of the two musicians under Kenya’s Law of Succession Act.
Furthermore, the Democratic Republic of Congo (DRC) is neither a Commonwealth country nor gazetted for such a legal consideration.
“This result (striking out the suit) is drastic but is ordained by the law and statute,” Justice Majanja said.
“I would urge the Office of the Attorney-General, who is the minister concerned, to look into the possibility of getting non-Commonwealth countries, particularly those Kenya has close regional ties with, gazetted as provided for by section 77(1) of the Law of Succession Act.”
The plaintiffs had sought damages and payment of money collected as royalties from the artistes’ musical works.
They had accused the companies of infringing the artistes’ economic and intellectual property rights.
But Justice Majanja ruled that the plaintiffs failed to define the specific intellectual property rights infringed and how the rights had been violated.
“The plaintiffs’ case suffers from a major deficiency. They have not alleged specific facts that show how each of the defendants committed the acts complained of,” the judge said.
The defendants had denied the alleged infringements. BY DAILY NATION