Kisumu Bar Owners Association, Solomon Martins Omutsani v Kenya right Board (KECOBO) [2019] KEHC 1870 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

JUDICIAL REVIEW NO. 4 OF 2019

IN THE MATTER OF LEAVE GRANTED TO THE APPLICANT TO APPLY FOR AN ORDER OF CERTIORARI VIDE THE COURT ORDER THE 26TH DAY OF MARCH, 2019 AND ISSUED ON THE 27TH DAY OF MARCH 2019

AND

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BY WAY OF CERTIORARY BY KISUMU BAR OWNERS ASSOCIATION

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF COPYRIGHT ACT, CHAPTER 130 OR THE LAWS OF KENYA

AND

IN THE MATTER OF FAIR ADMINISTRATIVE ACTION ACT, 2015

KISUMU BAR OWNERS ASSOCIATION,

SOLOMON MARTINS OMUTSANI.........................................APPLICANT

VERSUS

THE KENYA COPYRIGHT BOARD (KECOBO)........1ST RESPONDENT

RULING

The application before me is for Judicial Review, by way of an Order of Certiorari, to quash the decision made by the KENYA COPYRIGHT BOARD (KECOBO), at a time when the said Board was not properly constituted.

1. KECOBOhas the legal mandate conferred upon it by Section 3of the Copyright Act, which is the enforcement of copyright and related acts.

2. The Applicant, KISUMU BAR OWNERS ASSOCIATION, does not question the mandate of the Board.

3. Their concern is the issuance of a Certificate of Renewal of Registration on 1st February 2019.

4. The said certificate was issued by the Executive Director of the Board.

5. According to the Board, the issuance of licences to COLLECTIVE MANAGEMENT ORGANIZATIONS (CMOs)was done pursuant to order which a 3-Judgebench had given in KAKAMEGA PETITION NO. 3B OF 2017, (which had been consolidated with KISUMU PETITION NO. 11 OF 2017and also KISUMU PETITION NO. 15 OF 2017).

6. On 13th July 2018 the Court delivered its judgment, in which one of the reliefs granted was in the following terms;

“(d) All interim orders issued in this matter arehereby discharged and for the avoidance ofdoubt, the Kenya Copyright Board shall beat liberty to proceed with the process ofcalling for new applications for CollectingSocieties underSection 46 (2)of theCopyright Act.”

7. Therefore, when the Board invited interested firms to submit their expression of interest for registration as a Collective Society, on 2nd August 2018, the Board was giving effect to the decision of the Court.

8. Thereafter, the Board facilitated a meeting at the NHIFAuditorium on 11th September 2018.  Once again, that meeting constituted the furtherance of the orders made by the court on 13th July 2018, requiring the Board to ensure that there was Public Participation.

9. According to the Board, a licence was issued by it on 1st February 2019, giving a licence to the MUSIC COPYRIGHT SOCIETY OF KENYA (MCSK), enabling it to collect royalties on behalf of authors and publishers of musical works.

10. The Board contends that the licence in issue was only given out after a rigorous competitive process, which involved, inter alia, the public.

11. The Applicant did not question the procedure utilized by the Board in arriving at the decision to grant a licence to MCSK.

12. The question that arises is whether or not there was a duly constituted Board at the time when the licence was issued to MCSK.

13. The Respondents concede that;

“THAT the last gazetted CMO tariffs gazetted bythe Attorney General on 24th March 2017 expiredon 24th March 2018. ”

14. Nothing turns on the gazettement of the CMOtariffs, in this case.

15. The issue before me is whether or not the Board was properly constituted at the time it issued a licence to MCSK.

16. The Respondents acknowledged that pursuant to the 1st Schedule of the Copyright Act, 2001, the members of the Copyright Board hold office for a period of 3 years.

17. It is common ground that the term of the last Board ended on 30th October 2018.

18. The Respondents conceded that since 30th October 2018 when the term of the last Board expired, the Attorney General had not yet gazetted a new Board of Directors.

19. In the circumstances, it follows that by 1st February 2019, when a licence was issued to MCSK, the same was not issued by a duly constituted Board.

20. The Executive Director of the Board, is also the Secretary to the said Board.  He also serves as an ex-officio member of the Board.

21. The Executive Director was responsible for the day to day running of the affairs of the Board.

22. However, it must be emphasized that the Executive Director is not synonymous with the Board.  He cannot constitute himself into the Copyright Board.

23. It therefore follows that when the Executive Director issued a licence to MCSKon 1st February 2019, at a time when the Copyright Board was not properly constituted, he acted without the requisite legal mandate.

24. Accordingly, the application before me is well merited.  I therefore remove the Certificate of Renewal of Registration dated 1st of February 2019 and place it before this Court, and proceed to quash it forthwith.

25. Before concluding this judgment, I wish to make it clear that the steps which had been taken by the Board prior to the expiry of its term, remain un-affected by the quashing of the licence.

26. Finally, I order that each party will pay its own costs of the application.  I so order because none of the Respondents were responsible for the action taken by the Executive Director of the Copyright Board.  Indeed, it is the very fact that the Board was not properly constituted, or at all, which has led to the quashing of the licence that had been issued.  Therefore, the Board cannot be compelled to pay costs of this litigation.

27. Similarly, the exparte Applicant did not provide the court with any reasons which could lead the court to hold the Attorney General liable for the costs.

DATED, SIGNED and DELIVERED at KISUMU

This 8th day of October 2019

FRED A. OCHIENG

JUDGE