1. On 8th May 2025 this court granted the Exparte Applicant leave to institute Judicial Review proceedings and ordered that the said leave do operate as a stay of the 1st and 2nd interested parties remitting and or paying ring back tune net revenue share to Premium Rate Service Providers (PRSP) pending full determination of these proceedings.
2. Aggrieved by the said Order, the 3rd to the 16th applicants have through the application dated 4.7.25 sought the following orders;
1) …spent.
2) An order be and is hereby issued that the 3rd to 16thApplicants be enjoined as the Interested Parties.
3) An order be and is hereby issued that the Ex-Parte orders directing the 1st and 2nd Interested Parties from making payments due to various artists with the contracted premium rate service providers be discharged in the interim pending hearing and determination of this matter.
4) Any other or further orders this Honourable Court may deem just and appropriate to grant to ensure the enforcement of this application and the dispensation of justice.
3. It is their case that musicians and other artists in the country are almost ten thousand (10,000) whose livelihood and income is channeled through various streams (SKIZA TUNES).
4. Most of the Applicants argue that they have contracts with premium rate service providers (PRSP) and of which we have assigned/licensed our copyright/intellectual rights to them.
5. They argue that the interim orders stopping payments have greatly and adversely ruined their financial standings and obligations to third parties. They cannot pay rent, loans and upkeep for their families. Some Applicants are unable to pay for medical expenses such as Dialysis and Chemotherapy.
6. The said orders have irreparably prejudiced us and in particular contracts with service providers.
7. They ask this court that in the interim and pending determination of this matter, we seek discharge of Exparte orders stopping Safaricom PLC from making payment to Premium Rate Service Providers (PRSP). Unless said order is discharged and payments made, our lives will be permanently ruined.
8. They submit that the respondent raised issue of Notice of Appointment and of which they submit that no preliminary objection was raised/filed by the ex-parte Applicants against filing of application of 4th June 2025.
9. No such issue was raised in the Replying Affidavit by the ex-parte Applicants and they believe that the said issue has been sneaked into their submissions thus denying intended interested parties a chance to respond and be heard.
10. They argue that there is no legal basis or locus to file a Notice of Appointment of Advocates.
11. On their part,the 17 th to 21st intended interested parties/applicants have on their part moved this court through the application dated 18.6.25 wherein they are seeking the following orders:
1) …spent.
2) That an order be issued enjoining the intended 17th, 18th, 19th, 20th and 21st interested parties / Applicants as Interested Parties.
3) That an order be issued discharging the orders directing the 1st and 2nd Interested Parties (Safaricom and Airtel Kenya) from making payments due to various artists with contracted Premium Rate Service Providers (PRSP), pending hearing and determination of this matter.
4) Any other or further orders this Honourable Court may deem just and appropriate to grant to ensure enforcement of this application and the dispensation of justice.
12. These applicants are either PRSPs or artists who have assigned their copyright to PRSPs under valid contractual arrangements.
13. It is their case that exclusion would occasion a miscarriage of justice, contrary to the principles of natural justice espoused in Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, which held that parties directly affected by a decision must be given an opportunity to be heard.
14. It is their case that the impugned order has crippled their income streams, frustrated loan obligations, and disrupted business operations interference which they contend amounts to a violation of their rights to property, fair administrative action, and economic livelihood under Articles 40 and 47 of the Constitution since the contracts entered into with PRSPs are individual, negotiated commercial arrangements, and the court’s intervention in such private dealings without giving affected persons a hearing is unjust.
15. Reliance is placed in the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR, the Applicants argue that they are entitled to due process before administrative or judicial interference in their legally recognized arrangements.
16. According to Olive Githongo, a director of Xpedia Management Ltd, avers that her company is a licensed PRSP and copyright holder whose revenue flow has ceased due to the 8th May 2025 order. She outlines the financial obligations the company is now unable to meet and the risk of irreparable loss.
17. On his part Enock Mmbaya Mitanlo, on behalf of himself and the 18th, 20th, and 21st intended Interested Parties, argues that the interim order has affected their ability to repay loans tied to ringback tone royalties and violated their freedom of contract as set out in annexed contracts and copyright licenses.
18. The Applicants rely on the case of Trusted Society of Human Rights Alliance v Mumo Matemu [2014] eKLR, where the Court of Appeal emphasized that a party may be enjoined if they have a personal interest in the matter, are likely to be affected by the outcome, and their participation will aid the court in effectually and completely adjudicating all the issues.
19. Reliance is also placed in the case of Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] eKLR.
Submissions for the 17th to 21st Interested Parties on Notice of Motion Dated 18th June, 2025
20. The 17th to 21st intended interested parties submit that they own various copyrights that is the subject of this matter.
21. They are thus affected by the orders granted in this matter and any orders that may be granted in this matter. They have demonstrated that they are prejudiced by the orders granted herein and would also be prejudiced if their interests are not taken into consideration in the determination of the matter.
22. Reliance is placed in the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR where the Supreme Court held that;
i. “Consequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause.”
23. The orders made on 8th May, 2025 stopping the 1st and 2ndInterested Parties from releasing payments to PRSPs have affected the intended 17th to 21st Interested Parties among others in the following way:-
24. The blanket order has suspending valid and lawful contracts involving intended 17th to 21st Interested Parties and third parties not heard by the court.
25. The blanket moratorium has stalled operations of the entire PRSP industry without hearing them.
26. The intended interested parties are prejudiced by the blanket order which has curtailed their source of livelihood and operational sustainability.
27. The blanket order of stay is causing irreparable loss to the 17th to the 21st intended interested parties as well as thousands of copyright owners who are not party to these proceedings;
28. The rights to property and the right to economic rights of the 17th to the 21st intended interested parties as well as thousands of copyright owners who are not party to these proceedings are being trampled on;
29. The provisions of the Copyright Act sought to be enforced foresaw existing contracts which were to run their full term but the order for stay runs contrary to the provisions Section 30C(3) of the Copyright Act;
The order is punitive in effect, not preservative.
The appropriate remedy, if enforcement of Section 30C is in issue, is to stay the payment of dues owing to the ex parte applicants without affecting all other copyright holders.
They pray that the stay granted on 8th May, 2025 be set aside and or varied so as not to affect the rights of the 17th to the 21st intended interested parties and third parties who are not party to these proceedings.
The Exparte Applicant/Respondents case;
30. The Exparte is opposed to the applications.It is the exparte Applicants’ case that the applicants have not attached the orders allegedly directing the 1st and 2nd interested parties.
31. Reliance is placed in the case of Peter Kirika Githaiga & another v Betty Rashid [2016] KECA 100 (KLR) by the court of appeal where the court stated “But from the various decisions rendered by the High Court, the resolution on their part seems unanimous, that an application for review is fatally defective if the order sought to be reviewed is not attached. While no provision of the law makes this a requirement, some of the reasons advanced by the High Court are that inclusion of the order is mandatory so as: to enable the court to determine the impugned point (per Visram, J. as he then was) in Wilson Saina v Joshua Cherutich t/a Chirutich Company Ltd [2003] eKLR; and for there to be clarity as to what “aggrieves the applicant”, (Lesiit, J. in Belgo Holdings Limited v Robert Kotich Otach & Another [2009] eKLR). Similar sentiments are expressed in various other cases such as by Mutungi, J. in Suleiman Murunga v Nilestar Holdings Limited & Another [2015] eKLR. However, in the case of Rose Njeri Muiruri v. James Kiiru Chege & Another [2009] eKLR; Kasango, J. veered off the High Court path and held that failure to attach the order is not fatal at all. In our view, the position espoused by this Court and by Kasango J., represents the correct position, as they allow for recognition of the fact that while the law does not expressly demand that the order/ decree be attached, it is at times necessary that the same be extracted for purposes of enabling the court have clarity as to the orders complained about.
32. The applicants have not sought to lift the stay orders Or that leave granted be reviewed and declined.
33. They argue that a party is bound by his or her pleadings. In Caltex Oil (Kenya) Limited v Rono Limited [2016] eKLR the court of appeal stated that “this appeal raises two important issues. The first relates to the jurisdiction of this Court as to whether the court has powers to grant an order not specifically pleaded in the plaint, pleadings are a shield and a sword for both sides. They have the potential of informing each party what they expect in the trial before the court. If a party wishes the court to determine or grant a prayer it must be specifically pleaded and proved. The pleadings are a precursor for a party to lead evidence in satisfaction of the prayers he seeks to be granted in his favour. Where no such prayer is pleaded in a specific and somewhat particularized manner, the party is not entitled to benefit and the court has no jurisdiction to whimsically grant those orders.
34. They argue that what the interested parties have proposed is the suspension of the amendment of section 30C[3] of the Copy Rights act, The telecommunication operator shall remit directly to the artiste or owner of the copyright the ring back tune net revenue share allocated to them as specified subsection (1).
35. It has been demonstrated in section 30C[3] of the act that the provision is mandatory as the word shall remit directlyhas been used.
36. To them this is in line with what the orders granted on the 8.5.2025 clearly provided.
37. It is their case that the order did not stop the 1st and 2nd interested parties from paying.
38. In Gikenyi & 41 others v Cabinet Secretary Lands & 13 others (Petition E154, E173, E176, E181, E191 & 11 of 2024 (Consolidated)) [2024] KEHC 8475 (KLR)
(Constitutional and Human Rights) (11 July 2024) when this court was requested to suspend the implementation of the controversial housing levy the court authoritatively stated
50. We are further in agreement with the findings of Hon. Ibrahim J. (as he then was) in Kizito Mark Ngaywa v. Minister of State for Internal Security and Provincial Administration & Another [2011] eKLR, in which the learned Judge took the following view: - “ I have considered the application for adjournment and that for temporary suspension of the regulations and the submissions by Counsel. When considering the matter, I recalled my decision in Petition No. 669 of 2009, Mombasa Bishop Joseph Kimani & Others –v- Attorney General, Committee of Experts and Another which I delivered on 6-10-2010.
In the said case I was guided by the decisions of theConstitutional Court in Tanzania in Ndyanabo –v- Attorney General (2001) 2 EA 485 in which the said court presided over by the Hon. Chief Justice Samatta stated as follows: -
Thirdly; until the contrary is proved, a legislation is presumed to be Constitutional. It is a sound privilege of Constitutional construction that if possible, a legislation should receive such a construction as will make it operative and not inoperative.
Fourthly, since, as stated, a short while ago, there is a presumption of Constitutionality of legislation, the onus is upon those who challenge the Constitutionality of the legislation, they have to rebut the presumption. Fifthlywhere those supporting a restriction on a fundamental right rely on a claw back or exclusion clause in doing so, the onus is on them, they have to justify the restriction.”
I am still persuaded by the above-mentioned principles of Constitutional interpretation. In the Bishop Joseph Kimanicase, the court observed as follows: -
It is a very serious legal and Constitutional step to suspend the operation of statutes and statutory provisions. The courts must wade with care, prudence and judicious wisdom. For the High Court to grant interim orders in this regard, I think one must at the interlocutory stage actually show that the operation of the legislative provision are a danger to life and limb at that very moment.
It is my view that the principle of presumption of Constitutionality of Legislation in imperative for any state that believes in democracy, the separation of powers and the Rule of Law in general. Further the courts to be able to suspend legislation during peace times where there is no national disaster or war, would in my view be interfering with the independence and supremacy of Parliament in its Constitutional duty of legislating law.
51. This principle was adopted by the Court of Appeal in its recent decision in National Assembly (Supra), when faced with an application to issue conservatory orders to suspend Sections 30 to 38 of the Finance Act, 2023 pending the hearing and determination of the Appeal, as follows: -
“ 67. A reading of the said prayer leaves us with no doubt that the applicants are essentially inviting this court to suspend the operation of sections of the law on an application without hearing the appeal on merits. In principle, there is a general presumption that statutes enacted by parliament are constitutional, until the contrary is proved. Such a drastic order cannot be issued on an application. No court of law properly directing its mind to the law can grant such an order.
68. In summation, applying the general presumption that a statute is constitutional until declared unconstitutional, we find that the applicants have not demonstrated how the intended appeal which will determine whether the court’s determination on the said sections will stand or not will be rendered nugatory…”
39. It is their case that guided by the case of Gikenyi & 41 others v Cabinet Secretary Lands, above “there is a presumption of Constitutionality of legislation, the onus is upon those who challenge the Constitutionality of the legislation, they have to rebut the presumption”.
40. They submit that there is no contractual relationship that has been tabled between SAFARICOM OR AIRTEL with the intended interested parties.
41. There must be a correlations emanating from SAFARICOM/AIRTEL then ending with to the interested parties.
42. Reliance is placed in the Nigerian case of Jiringho Isaiah Oboyowa Sule vs Isat Global Services Ltd the court while citing the case in the case of Victor Isonguyo v. State (2023) 3 NWLR (PT. 1872) 519, the Supreme Court held that : “A court should not decide a case on mere conjecture or speculation. Court of laws are Courts of facts and law. They decide issues on facts established before them and on law. They must avoid speculation. A court cannot decide issues on speculation, no matter how close what it relies on may seem to be on the facts”
43. It is their case that the orders granted did not stop the 1st and 2nd interested parties from paying.
44. The orders simply agreed with the provisions of the law on direct payments to be made to the copyright owners and artist.
45. The orders were granted on 8.5.2025 after a full hearing of the parties herein.
46. The 1st interested party lodged an appeal on 9.5.2025 before the court pf appeal vide COURT OF APPEAL CIVIL APPLICATION NO. 296 OF 2025, SAFARICOM PLC VS JUSTUS NGEMU & OTHERS. The court of appeal matter is pending.
47. On the contrary the 2nd interested party filed no documents in to the suit by the Ex-parte Applicants despite the said 2ndinterested party being served and appointing the law firm of ADRA ADVOCATES LLP.
48. It is instructive to note that the orders were issued jointly against the 1st and 2nd interested party.
49. They submit that the orders cannot be split to accommodate only the 1st interested party.
50. It is their case that the 1st and 2nd interested parties to whom the orders were directed at have not moved this court to have the orders discharged.
51. None of the initial parties before this court has alleged that there was material non-disclosure or misinformation on the part of the ex—parte applicants.Fundamentally it has not been alleged that your lordship that you exercised your judicial discretion wrongly.
52. In Tuwei v Barsoy (Civil Appeal E042 of 2024) [2024] KEELC 7552 (KLR) (14 November 2024) (Ruling) where the court stated that
16. I am also guided by the decision of Munyao Sila J. in Filista Chemaiyo Sosten vs Samson Mutai (2012) eKLR, in which he stated thus:“ In James Juma Muchemi & Partners Ltd vs Barclays Bank of Kenya & Another (Nairobi HCCC No.339 of 2011 (2012) eKLR, my brother Mabeya J, expressed the view that the jurisdiction under Order 40 Rule 7 was discretionary and like in all other discretions, the same must be exercised judiciously although there are no form rules of law or practice that have been set down. In Ragui vs Barclays Bank of Kenya (2002) 1 KLR 647, Ringera J stated that:-
“It is settled law that if an interlocutory injunction has been obtained by means of misrepresentation or concealment of material facts, the same will on the application of the party aggrieved be discharged”.
I think the discretion under Order 40 Rule 7 ought to be sparingly used so as to avoid a situation where it would appear as if the same is being used as a tool for appeal. This is because before issuing the injunction, the court must have been satisfied that it was necessary to grant the same. If it were not satisfied, the court would not have issued the injunction in the first place. However, if the injunction was obtained by concealing facts which if put to the judge in first instance would have affected his judgment on whether or not to give the injunction, then a court can be inclined to vary or vacate the injunction in light of the new facts. So too if the circumstances of the suit have radically changed so that it is no longer necessary to have the injunction.”
Analysis and determination
53. Whether the applicants should be made parties to the suit;
In the case David K Kaitany & 18 others v Head Teacher/ Secretary the School Management Committee Ng’onlong Primary School & 10 others [2022] eKLR;
i. “5. The court has carefully considered the grounds on the application, affidavit evidence, grounds of opposition, submissions, superior courts decisions cited and come to the following conclusions;
54. The question of joinder of parties is governed by Order 1 Rule 10 (2) of the Civil Procedure Rules which states that;
i. “ The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”[Emphasis added].
55. That in the case of Sofia Muciku Jotham (Suing as the Legal Representative of the Estate of Jotham Gikunju Karu) v Lucy Waruguru (Sued as the Legal Representative of the Estate of Judy Kori Nyaga) & another [2021] eKLR, the court stated as follows on an application for joinder;
i.
‘When the above principles are applied to the facts of these applications it is clear that the guiding principles when an intending party is to be joined are as follows:
56. He must be a necessary party,he must be a proper party, in the case of a defendant, there must be a relief flowing from that defendant to the plaintiff.The ultimate order or decree cannot be enforced without his presence in the matter.His presence is necessary to enable the Court to effectively and completely to adjudicate upon and settle all questions involved in the suit.”
i.
“And in the case of Meme Vs Republic, [2004] 1 EA 124, the court observed that a party could be enjoined in a matter for the reasons that;
(i) Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings;
(ii) Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) Joinder to prevent a likely course of proliferated litigation.”
57. In the instant suit, and upon perusal of the applicants supporting affidavits, this court is of the informed view that the applicant’s presence before the court may be necessary in order to enable the court effectually.
58. This court is also satisfied that Joinder of the applicants will offer room for the protection for their rights and that they will
be adversely affected in law unless the orders sought are granted and I so hold.
The 2nd Issue:
59. Whether the court issue an order be discharging the orders issued on
60. In the case of Republic v Jubilee Party & another Ex parte John Kieru Wambui & another [2021] eKLR the court held as follows;
i. “5. The applicable law for setting aside or review of a judgment or decree of the court is section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides as follows:
ii. “Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
6. Order 45 Rule 1 of the Civil Procedure Rules elaborates on the grounds on which a judgment or decree can be set aside as follows:
“(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
61. In the case of Paul Gathingu Gachie v Cabinet Secretary for Land & Physical Planning [2021] eKLR the court held that ;
i. “5. The court has carefully considered the grounds on the notice of motion, the affidavit evidence by both parties, the submissions by learned counsel, the superior courts decisions cited therein, and come to the following conclusions;
62. That Order 51 Rule 15 of the Civil Procedure Rules provides for setting aside of ex parte orders in appropriate cases. The court in the case of Zebedee Mmata Injera V Benson Anubi Luhong; Joanne C.K. Luhongo (Interested Party) [2021] Eklr, expressed itself as follows on Order 51 Rule 15;
“… while Order 51 Rule 15 of the Civil Procedure Rules gives the court power to set aside any order made ex parte, the court's discretionary power should, however, be exercised judiciously, with the overriding objective of ensuring that justice is done to all the parties. That the court's discretion to set aside an ex parte ruling/judgment is not restricted, but should be so exercised not to cause injustice to the opposite party. It is incumbent upon the party seeking the court's favor or discretion to adduce sufficient and plausible reasons that are demonstrable, and persuasive to the court…”
63. In Republic v Vice Chancellor Moi University & 3 others Ex-Parte Benjamin J. Gikenyi Magare [2018] eKLR it was held that;
“14. Jurisdiction to vary and or set aside the orders of this Honorable Court is one which is sparingly exercised and the reasons for invoking that jurisdiction must be specified and must be on solid basis. In Judicial Review Handbook, 3rd Edition by Michael Fordham at pages 360 and 361 it is stated that:
(i)
“At the request of a defendant or an interested party, the Court can set aside permission previously granted. However, this is a very restricted power. It was never popular with judges, who required there to be a very clear-cut case before discharging the permission...The jurisdiction to set aside is one which is sparingly exercised and the reason for invoking that jurisdiction in a particular case must be specified….”
ii.
15. In Aga Khan Education Service Kenya v Republic Ex-parte Ali Seif & 3 Others (2004) eKLR the position that this is a jurisdiction that should be very sparingly exercised; that the whole purpose of the [permission] stage would be vitiated if the grant of [permission] were to be regularly followed by an application to set it aside; that whereas it may very well be that [the claimants] will face great, perhaps insuperable, difficulties when the case is finally heard, this was never a case for an application to set aside [permission]” as such an application is not to be brought merely on the footing that a [defendant] has a very powerful, even overwhelming case.
iii.
16. The most recognized grounds for varying and or setting aside judicial review permission/order include instances of material non -disclosure, concealment of material particulars/documents , misrepresentation and where the application for leave/permission/order granted is an abuse of the process of Court. In the Matter of an Application by Justus Nyangaya & Others, High Court of Kenya at Nairobi, Misc. Civil Case No. 1133 of 2002 where it was observed at page 9 thus:
“However, the Courts have set aside ex-parte orders obtained in judicial review proceedings following non-disclosure of material facts, concealment of material documents and on misrepresentation.”
iv.
17. These are the principles under which the Courts do exercise their discretion in granting an order for stay. However, it is not in doubt that such an order, if granted ex parte, may be set aside at a later stage if the Court finds that the stay ought not to have been issued in the first place or that the change in circumstances no longer warrant the continued existence of the orders of stay. Parties and their counsel are, however, cautioned that the grant of an order of stay ought not to be followed by an application seeking to vacate the same. It is only in cases where the Court is convinced that the conduct of the applicant at the ex parte stage when the stay was granted does not justify the grant either by non-disclosure of material facts or misrepresentation of the same or due to subsequent events that the Court will set aside the stay granted. This is due to the fact that Courts do not grant orders of stay as a matter of course and where the Court is in doubt, the Court is now at liberty to direct that the prayer seeking the stay be heard inter partes even in cases where the leave has been granted.
v.
18. Whether the court has powers to vary, set aside or discharge an order of stay is to be found under Order 53 rule (1)4 which states:-
(i) “the grant of leave ……………………..shall, if the judge so directs, operate as a stay of the proceedings in question until the judge orders otherwise.”
vi.
19. The wording of this sub-rule clearly indicates that the court has jurisdiction to review, vary, set aside or discharge stay and that the powers of court are discretionary. Referring to the review, varying or setting aside ex-parte orders by the court the matter was discussed in Civil Appeal No.77/2003 in Court of Appeal Judicial Commission of Inquiry to the Goldenberg Affair & Others vs. Job Kilach. The Court of Appeal referring to the case of Ex-parte Harbage and the words of MAY L. J. quoted a passage on page 14
[...truncated]
2. Aggrieved by the said Order, the 3rd to the 16th applicants have through the application dated 4.7.25 sought the following orders;
1) …spent.
2) An order be and is hereby issued that the 3rd to 16thApplicants be enjoined as the Interested Parties.
3) An order be and is hereby issued that the Ex-Parte orders directing the 1st and 2nd Interested Parties from making payments due to various artists with the contracted premium rate service providers be discharged in the interim pending hearing and determination of this matter.
4) Any other or further orders this Honourable Court may deem just and appropriate to grant to ensure the enforcement of this application and the dispensation of justice.
3. It is their case that musicians and other artists in the country are almost ten thousand (10,000) whose livelihood and income is channeled through various streams (SKIZA TUNES).
4. Most of the Applicants argue that they have contracts with premium rate service providers (PRSP) and of which we have assigned/licensed our copyright/intellectual rights to them.
5. They argue that the interim orders stopping payments have greatly and adversely ruined their financial standings and obligations to third parties. They cannot pay rent, loans and upkeep for their families. Some Applicants are unable to pay for medical expenses such as Dialysis and Chemotherapy.
6. The said orders have irreparably prejudiced us and in particular contracts with service providers.
7. They ask this court that in the interim and pending determination of this matter, we seek discharge of Exparte orders stopping Safaricom PLC from making payment to Premium Rate Service Providers (PRSP). Unless said order is discharged and payments made, our lives will be permanently ruined.
8. They submit that the respondent raised issue of Notice of Appointment and of which they submit that no preliminary objection was raised/filed by the ex-parte Applicants against filing of application of 4th June 2025.
9. No such issue was raised in the Replying Affidavit by the ex-parte Applicants and they believe that the said issue has been sneaked into their submissions thus denying intended interested parties a chance to respond and be heard.
10. They argue that there is no legal basis or locus to file a Notice of Appointment of Advocates.
11. On their part,the 17 th to 21st intended interested parties/applicants have on their part moved this court through the application dated 18.6.25 wherein they are seeking the following orders:
1) …spent.
2) That an order be issued enjoining the intended 17th, 18th, 19th, 20th and 21st interested parties / Applicants as Interested Parties.
3) That an order be issued discharging the orders directing the 1st and 2nd Interested Parties (Safaricom and Airtel Kenya) from making payments due to various artists with contracted Premium Rate Service Providers (PRSP), pending hearing and determination of this matter.
4) Any other or further orders this Honourable Court may deem just and appropriate to grant to ensure enforcement of this application and the dispensation of justice.
12. These applicants are either PRSPs or artists who have assigned their copyright to PRSPs under valid contractual arrangements.
13. It is their case that exclusion would occasion a miscarriage of justice, contrary to the principles of natural justice espoused in Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, which held that parties directly affected by a decision must be given an opportunity to be heard.
14. It is their case that the impugned order has crippled their income streams, frustrated loan obligations, and disrupted business operations interference which they contend amounts to a violation of their rights to property, fair administrative action, and economic livelihood under Articles 40 and 47 of the Constitution since the contracts entered into with PRSPs are individual, negotiated commercial arrangements, and the court’s intervention in such private dealings without giving affected persons a hearing is unjust.
15. Reliance is placed in the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR, the Applicants argue that they are entitled to due process before administrative or judicial interference in their legally recognized arrangements.
16. According to Olive Githongo, a director of Xpedia Management Ltd, avers that her company is a licensed PRSP and copyright holder whose revenue flow has ceased due to the 8th May 2025 order. She outlines the financial obligations the company is now unable to meet and the risk of irreparable loss.
17. On his part Enock Mmbaya Mitanlo, on behalf of himself and the 18th, 20th, and 21st intended Interested Parties, argues that the interim order has affected their ability to repay loans tied to ringback tone royalties and violated their freedom of contract as set out in annexed contracts and copyright licenses.
18. The Applicants rely on the case of Trusted Society of Human Rights Alliance v Mumo Matemu [2014] eKLR, where the Court of Appeal emphasized that a party may be enjoined if they have a personal interest in the matter, are likely to be affected by the outcome, and their participation will aid the court in effectually and completely adjudicating all the issues.
19. Reliance is also placed in the case of Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] eKLR.
Submissions for the 17th to 21st Interested Parties on Notice of Motion Dated 18th June, 2025
20. The 17th to 21st intended interested parties submit that they own various copyrights that is the subject of this matter.
21. They are thus affected by the orders granted in this matter and any orders that may be granted in this matter. They have demonstrated that they are prejudiced by the orders granted herein and would also be prejudiced if their interests are not taken into consideration in the determination of the matter.
22. Reliance is placed in the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR where the Supreme Court held that;
i. “Consequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause.”
23. The orders made on 8th May, 2025 stopping the 1st and 2ndInterested Parties from releasing payments to PRSPs have affected the intended 17th to 21st Interested Parties among others in the following way:-
24. The blanket order has suspending valid and lawful contracts involving intended 17th to 21st Interested Parties and third parties not heard by the court.
25. The blanket moratorium has stalled operations of the entire PRSP industry without hearing them.
26. The intended interested parties are prejudiced by the blanket order which has curtailed their source of livelihood and operational sustainability.
27. The blanket order of stay is causing irreparable loss to the 17th to the 21st intended interested parties as well as thousands of copyright owners who are not party to these proceedings;
28. The rights to property and the right to economic rights of the 17th to the 21st intended interested parties as well as thousands of copyright owners who are not party to these proceedings are being trampled on;
29. The provisions of the Copyright Act sought to be enforced foresaw existing contracts which were to run their full term but the order for stay runs contrary to the provisions Section 30C(3) of the Copyright Act;
The order is punitive in effect, not preservative.
The appropriate remedy, if enforcement of Section 30C is in issue, is to stay the payment of dues owing to the ex parte applicants without affecting all other copyright holders.
They pray that the stay granted on 8th May, 2025 be set aside and or varied so as not to affect the rights of the 17th to the 21st intended interested parties and third parties who are not party to these proceedings.
The Exparte Applicant/Respondents case;
30. The Exparte is opposed to the applications.It is the exparte Applicants’ case that the applicants have not attached the orders allegedly directing the 1st and 2nd interested parties.
31. Reliance is placed in the case of Peter Kirika Githaiga & another v Betty Rashid [2016] KECA 100 (KLR) by the court of appeal where the court stated “But from the various decisions rendered by the High Court, the resolution on their part seems unanimous, that an application for review is fatally defective if the order sought to be reviewed is not attached. While no provision of the law makes this a requirement, some of the reasons advanced by the High Court are that inclusion of the order is mandatory so as: to enable the court to determine the impugned point (per Visram, J. as he then was) in Wilson Saina v Joshua Cherutich t/a Chirutich Company Ltd [2003] eKLR; and for there to be clarity as to what “aggrieves the applicant”, (Lesiit, J. in Belgo Holdings Limited v Robert Kotich Otach & Another [2009] eKLR). Similar sentiments are expressed in various other cases such as by Mutungi, J. in Suleiman Murunga v Nilestar Holdings Limited & Another [2015] eKLR. However, in the case of Rose Njeri Muiruri v. James Kiiru Chege & Another [2009] eKLR; Kasango, J. veered off the High Court path and held that failure to attach the order is not fatal at all. In our view, the position espoused by this Court and by Kasango J., represents the correct position, as they allow for recognition of the fact that while the law does not expressly demand that the order/ decree be attached, it is at times necessary that the same be extracted for purposes of enabling the court have clarity as to the orders complained about.
32. The applicants have not sought to lift the stay orders Or that leave granted be reviewed and declined.
33. They argue that a party is bound by his or her pleadings. In Caltex Oil (Kenya) Limited v Rono Limited [2016] eKLR the court of appeal stated that “this appeal raises two important issues. The first relates to the jurisdiction of this Court as to whether the court has powers to grant an order not specifically pleaded in the plaint, pleadings are a shield and a sword for both sides. They have the potential of informing each party what they expect in the trial before the court. If a party wishes the court to determine or grant a prayer it must be specifically pleaded and proved. The pleadings are a precursor for a party to lead evidence in satisfaction of the prayers he seeks to be granted in his favour. Where no such prayer is pleaded in a specific and somewhat particularized manner, the party is not entitled to benefit and the court has no jurisdiction to whimsically grant those orders.
34. They argue that what the interested parties have proposed is the suspension of the amendment of section 30C[3] of the Copy Rights act, The telecommunication operator shall remit directly to the artiste or owner of the copyright the ring back tune net revenue share allocated to them as specified subsection (1).
35. It has been demonstrated in section 30C[3] of the act that the provision is mandatory as the word shall remit directlyhas been used.
36. To them this is in line with what the orders granted on the 8.5.2025 clearly provided.
37. It is their case that the order did not stop the 1st and 2nd interested parties from paying.
38. In Gikenyi & 41 others v Cabinet Secretary Lands & 13 others (Petition E154, E173, E176, E181, E191 & 11 of 2024 (Consolidated)) [2024] KEHC 8475 (KLR)
(Constitutional and Human Rights) (11 July 2024) when this court was requested to suspend the implementation of the controversial housing levy the court authoritatively stated
50. We are further in agreement with the findings of Hon. Ibrahim J. (as he then was) in Kizito Mark Ngaywa v. Minister of State for Internal Security and Provincial Administration & Another [2011] eKLR, in which the learned Judge took the following view: - “ I have considered the application for adjournment and that for temporary suspension of the regulations and the submissions by Counsel. When considering the matter, I recalled my decision in Petition No. 669 of 2009, Mombasa Bishop Joseph Kimani & Others –v- Attorney General, Committee of Experts and Another which I delivered on 6-10-2010.
In the said case I was guided by the decisions of theConstitutional Court in Tanzania in Ndyanabo –v- Attorney General (2001) 2 EA 485 in which the said court presided over by the Hon. Chief Justice Samatta stated as follows: -
Thirdly; until the contrary is proved, a legislation is presumed to be Constitutional. It is a sound privilege of Constitutional construction that if possible, a legislation should receive such a construction as will make it operative and not inoperative.
Fourthly, since, as stated, a short while ago, there is a presumption of Constitutionality of legislation, the onus is upon those who challenge the Constitutionality of the legislation, they have to rebut the presumption. Fifthlywhere those supporting a restriction on a fundamental right rely on a claw back or exclusion clause in doing so, the onus is on them, they have to justify the restriction.”
I am still persuaded by the above-mentioned principles of Constitutional interpretation. In the Bishop Joseph Kimanicase, the court observed as follows: -
It is a very serious legal and Constitutional step to suspend the operation of statutes and statutory provisions. The courts must wade with care, prudence and judicious wisdom. For the High Court to grant interim orders in this regard, I think one must at the interlocutory stage actually show that the operation of the legislative provision are a danger to life and limb at that very moment.
It is my view that the principle of presumption of Constitutionality of Legislation in imperative for any state that believes in democracy, the separation of powers and the Rule of Law in general. Further the courts to be able to suspend legislation during peace times where there is no national disaster or war, would in my view be interfering with the independence and supremacy of Parliament in its Constitutional duty of legislating law.
51. This principle was adopted by the Court of Appeal in its recent decision in National Assembly (Supra), when faced with an application to issue conservatory orders to suspend Sections 30 to 38 of the Finance Act, 2023 pending the hearing and determination of the Appeal, as follows: -
“ 67. A reading of the said prayer leaves us with no doubt that the applicants are essentially inviting this court to suspend the operation of sections of the law on an application without hearing the appeal on merits. In principle, there is a general presumption that statutes enacted by parliament are constitutional, until the contrary is proved. Such a drastic order cannot be issued on an application. No court of law properly directing its mind to the law can grant such an order.
68. In summation, applying the general presumption that a statute is constitutional until declared unconstitutional, we find that the applicants have not demonstrated how the intended appeal which will determine whether the court’s determination on the said sections will stand or not will be rendered nugatory…”
39. It is their case that guided by the case of Gikenyi & 41 others v Cabinet Secretary Lands, above “there is a presumption of Constitutionality of legislation, the onus is upon those who challenge the Constitutionality of the legislation, they have to rebut the presumption”.
40. They submit that there is no contractual relationship that has been tabled between SAFARICOM OR AIRTEL with the intended interested parties.
41. There must be a correlations emanating from SAFARICOM/AIRTEL then ending with to the interested parties.
42. Reliance is placed in the Nigerian case of Jiringho Isaiah Oboyowa Sule vs Isat Global Services Ltd the court while citing the case in the case of Victor Isonguyo v. State (2023) 3 NWLR (PT. 1872) 519, the Supreme Court held that : “A court should not decide a case on mere conjecture or speculation. Court of laws are Courts of facts and law. They decide issues on facts established before them and on law. They must avoid speculation. A court cannot decide issues on speculation, no matter how close what it relies on may seem to be on the facts”
43. It is their case that the orders granted did not stop the 1st and 2nd interested parties from paying.
44. The orders simply agreed with the provisions of the law on direct payments to be made to the copyright owners and artist.
45. The orders were granted on 8.5.2025 after a full hearing of the parties herein.
46. The 1st interested party lodged an appeal on 9.5.2025 before the court pf appeal vide COURT OF APPEAL CIVIL APPLICATION NO. 296 OF 2025, SAFARICOM PLC VS JUSTUS NGEMU & OTHERS. The court of appeal matter is pending.
47. On the contrary the 2nd interested party filed no documents in to the suit by the Ex-parte Applicants despite the said 2ndinterested party being served and appointing the law firm of ADRA ADVOCATES LLP.
48. It is instructive to note that the orders were issued jointly against the 1st and 2nd interested party.
49. They submit that the orders cannot be split to accommodate only the 1st interested party.
50. It is their case that the 1st and 2nd interested parties to whom the orders were directed at have not moved this court to have the orders discharged.
51. None of the initial parties before this court has alleged that there was material non-disclosure or misinformation on the part of the ex—parte applicants.Fundamentally it has not been alleged that your lordship that you exercised your judicial discretion wrongly.
52. In Tuwei v Barsoy (Civil Appeal E042 of 2024) [2024] KEELC 7552 (KLR) (14 November 2024) (Ruling) where the court stated that
16. I am also guided by the decision of Munyao Sila J. in Filista Chemaiyo Sosten vs Samson Mutai (2012) eKLR, in which he stated thus:“ In James Juma Muchemi & Partners Ltd vs Barclays Bank of Kenya & Another (Nairobi HCCC No.339 of 2011 (2012) eKLR, my brother Mabeya J, expressed the view that the jurisdiction under Order 40 Rule 7 was discretionary and like in all other discretions, the same must be exercised judiciously although there are no form rules of law or practice that have been set down. In Ragui vs Barclays Bank of Kenya (2002) 1 KLR 647, Ringera J stated that:-
“It is settled law that if an interlocutory injunction has been obtained by means of misrepresentation or concealment of material facts, the same will on the application of the party aggrieved be discharged”.
I think the discretion under Order 40 Rule 7 ought to be sparingly used so as to avoid a situation where it would appear as if the same is being used as a tool for appeal. This is because before issuing the injunction, the court must have been satisfied that it was necessary to grant the same. If it were not satisfied, the court would not have issued the injunction in the first place. However, if the injunction was obtained by concealing facts which if put to the judge in first instance would have affected his judgment on whether or not to give the injunction, then a court can be inclined to vary or vacate the injunction in light of the new facts. So too if the circumstances of the suit have radically changed so that it is no longer necessary to have the injunction.”
Analysis and determination
53. Whether the applicants should be made parties to the suit;
In the case David K Kaitany & 18 others v Head Teacher/ Secretary the School Management Committee Ng’onlong Primary School & 10 others [2022] eKLR;
i. “5. The court has carefully considered the grounds on the application, affidavit evidence, grounds of opposition, submissions, superior courts decisions cited and come to the following conclusions;
54. The question of joinder of parties is governed by Order 1 Rule 10 (2) of the Civil Procedure Rules which states that;
i. “ The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”[Emphasis added].
55. That in the case of Sofia Muciku Jotham (Suing as the Legal Representative of the Estate of Jotham Gikunju Karu) v Lucy Waruguru (Sued as the Legal Representative of the Estate of Judy Kori Nyaga) & another [2021] eKLR, the court stated as follows on an application for joinder;
i.
‘When the above principles are applied to the facts of these applications it is clear that the guiding principles when an intending party is to be joined are as follows:
56. He must be a necessary party,he must be a proper party, in the case of a defendant, there must be a relief flowing from that defendant to the plaintiff.The ultimate order or decree cannot be enforced without his presence in the matter.His presence is necessary to enable the Court to effectively and completely to adjudicate upon and settle all questions involved in the suit.”
i.
“And in the case of Meme Vs Republic, [2004] 1 EA 124, the court observed that a party could be enjoined in a matter for the reasons that;
(i) Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings;
(ii) Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) Joinder to prevent a likely course of proliferated litigation.”
57. In the instant suit, and upon perusal of the applicants supporting affidavits, this court is of the informed view that the applicant’s presence before the court may be necessary in order to enable the court effectually.
58. This court is also satisfied that Joinder of the applicants will offer room for the protection for their rights and that they will
be adversely affected in law unless the orders sought are granted and I so hold.
The 2nd Issue:
59. Whether the court issue an order be discharging the orders issued on
60. In the case of Republic v Jubilee Party & another Ex parte John Kieru Wambui & another [2021] eKLR the court held as follows;
i. “5. The applicable law for setting aside or review of a judgment or decree of the court is section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides as follows:
ii. “Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
6. Order 45 Rule 1 of the Civil Procedure Rules elaborates on the grounds on which a judgment or decree can be set aside as follows:
“(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
61. In the case of Paul Gathingu Gachie v Cabinet Secretary for Land & Physical Planning [2021] eKLR the court held that ;
i. “5. The court has carefully considered the grounds on the notice of motion, the affidavit evidence by both parties, the submissions by learned counsel, the superior courts decisions cited therein, and come to the following conclusions;
62. That Order 51 Rule 15 of the Civil Procedure Rules provides for setting aside of ex parte orders in appropriate cases. The court in the case of Zebedee Mmata Injera V Benson Anubi Luhong; Joanne C.K. Luhongo (Interested Party) [2021] Eklr, expressed itself as follows on Order 51 Rule 15;
“… while Order 51 Rule 15 of the Civil Procedure Rules gives the court power to set aside any order made ex parte, the court's discretionary power should, however, be exercised judiciously, with the overriding objective of ensuring that justice is done to all the parties. That the court's discretion to set aside an ex parte ruling/judgment is not restricted, but should be so exercised not to cause injustice to the opposite party. It is incumbent upon the party seeking the court's favor or discretion to adduce sufficient and plausible reasons that are demonstrable, and persuasive to the court…”
63. In Republic v Vice Chancellor Moi University & 3 others Ex-Parte Benjamin J. Gikenyi Magare [2018] eKLR it was held that;
“14. Jurisdiction to vary and or set aside the orders of this Honorable Court is one which is sparingly exercised and the reasons for invoking that jurisdiction must be specified and must be on solid basis. In Judicial Review Handbook, 3rd Edition by Michael Fordham at pages 360 and 361 it is stated that:
(i)
“At the request of a defendant or an interested party, the Court can set aside permission previously granted. However, this is a very restricted power. It was never popular with judges, who required there to be a very clear-cut case before discharging the permission...The jurisdiction to set aside is one which is sparingly exercised and the reason for invoking that jurisdiction in a particular case must be specified….”
ii.
15. In Aga Khan Education Service Kenya v Republic Ex-parte Ali Seif & 3 Others (2004) eKLR the position that this is a jurisdiction that should be very sparingly exercised; that the whole purpose of the [permission] stage would be vitiated if the grant of [permission] were to be regularly followed by an application to set it aside; that whereas it may very well be that [the claimants] will face great, perhaps insuperable, difficulties when the case is finally heard, this was never a case for an application to set aside [permission]” as such an application is not to be brought merely on the footing that a [defendant] has a very powerful, even overwhelming case.
iii.
16. The most recognized grounds for varying and or setting aside judicial review permission/order include instances of material non -disclosure, concealment of material particulars/documents , misrepresentation and where the application for leave/permission/order granted is an abuse of the process of Court. In the Matter of an Application by Justus Nyangaya & Others, High Court of Kenya at Nairobi, Misc. Civil Case No. 1133 of 2002 where it was observed at page 9 thus:
“However, the Courts have set aside ex-parte orders obtained in judicial review proceedings following non-disclosure of material facts, concealment of material documents and on misrepresentation.”
iv.
17. These are the principles under which the Courts do exercise their discretion in granting an order for stay. However, it is not in doubt that such an order, if granted ex parte, may be set aside at a later stage if the Court finds that the stay ought not to have been issued in the first place or that the change in circumstances no longer warrant the continued existence of the orders of stay. Parties and their counsel are, however, cautioned that the grant of an order of stay ought not to be followed by an application seeking to vacate the same. It is only in cases where the Court is convinced that the conduct of the applicant at the ex parte stage when the stay was granted does not justify the grant either by non-disclosure of material facts or misrepresentation of the same or due to subsequent events that the Court will set aside the stay granted. This is due to the fact that Courts do not grant orders of stay as a matter of course and where the Court is in doubt, the Court is now at liberty to direct that the prayer seeking the stay be heard inter partes even in cases where the leave has been granted.
v.
18. Whether the court has powers to vary, set aside or discharge an order of stay is to be found under Order 53 rule (1)4 which states:-
(i) “the grant of leave ……………………..shall, if the judge so directs, operate as a stay of the proceedings in question until the judge orders otherwise.”
vi.
19. The wording of this sub-rule clearly indicates that the court has jurisdiction to review, vary, set aside or discharge stay and that the powers of court are discretionary. Referring to the review, varying or setting aside ex-parte orders by the court the matter was discussed in Civil Appeal No.77/2003 in Court of Appeal Judicial Commission of Inquiry to the Goldenberg Affair & Others vs. Job Kilach. The Court of Appeal referring to the case of Ex-parte Harbage and the words of MAY L. J. quoted a passage on page 14
[...truncated]