Brief background;
1. Section 30 C of the Copyright Act No. 12 of 2001 addresses the payment of ring back tune revenue. This was introduced through the Copyright (Amendment) Act No.14 of 2022 that was passed by Parliament in February 2022 and signed into law by the President in April 2022.
2. The Act establishes a revenue-sharing formula for ring back tunes, as follows:
a) Artists or Copyright holders: at least 52%
b) Telecommunication operators: 39.5%
c) Premium rate service providers: 8.5%
3. Under Section 30C (3) of the Copyright Act, the 1st and 2ndInterested Parties herein are required to remit the revenue allocated to artistes directly to the artistes or Copyright holders.
4. The lack or regulations to guide the foregoing has precipitated the filing of the Application dated 16.5.25 wherein the Applicant seeks the following orders;
1) That this Honorable Court be pleased to grant the Applicants an order of mandamus for the 1st,2nd and 3rd Respondents to be compelled to enforce section30C |1| & Section 30C 131 of the Copy Rights Act, cap 130 laws of Kenya against the 1st and 2nd Interested Parties herein;
2) That this Honorable Court be pleased to grant the Applicants an order of mandamus to be compel the 1st and 2nd Interested Parties to enforce section 30C (1]& Section 30C [3] of the Copy Rights Act, cap 130 laws of Kenya against the 1stand 2nd Interested Parties herein;
3) That this Honorable Court be pleased to grant the Applicants an order of mandamus to be compelled the 1st and 2nd Interested Parties to cease henceforth from remitting and or paying ring back tune net revenue share to Premium Rate Service Providers (PRSP) contrary to section 30C|1] & Section 30C|3] of the Copy Rights Act, cap 130 laws of Kenya;
4) Any further or other orders or directions which the Honorable Court considers appropriate in the circumstances.
The Applicant’s Case;
5. It is the Applicant’s case that the Copy Rights Act, CAP 130 laws of Kenya was amendment to introduce Section 30C which reads ,Payment of ring back tune revenue;
“(1) Without prejudice to section 30B, in the case of ring back tunes, the parties shall share the revenue net of taxes from the sale of ring back tunes, as follows -
(a) the premium rate service provider at eight point five percent;
(b) the telecommunication operator at thirty-nine point five percent;
(c) the artiste or owner of the Copyright at not less than fifty two percent.
(2) Despite subsection (1), all contracts between premium rate service providers and artistes or owners of the Copyright existing before the commencement of this Act shall apply until their expiry, and subsequent contracts shall conform to this provision.
(3) 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).”
6. The Applicants are opposed to the fact that the Respondents have continued to allow through omissions the 1st and 2nd Interested Parties to breach the law by letting them pay ring back tune net revenue share to Premium Rate Service Providers (PRSP).
7. The Applicants argue that they have tried in vain to engage the Respondents with a view of implementing the said provisions of the law but their efforts have borne no fruits to date. Following are examples of the said efforts;
1) On 27.7.2023 the 1st Applicant wrote to the 1stRespondent to convene a meeting on the issue of direct payment of artist royalties.
2) On 31.7.2023 the 1st Respondent in a letter addressed to the 1st Applicant sought to engage more stake holders and proposed a meeting that never was on the week of 7th to 11th August, 2023.
3) On 18.9.2023 the 1st Applicant wrote the 1stRespondent on the issue of direct payment but the same was never responded to.
4) On 21.3.2024 the 2nd Respondent wrote to the Interested Parties with a view of seeking ways of implementing section 30 C of the copy right law.
5) On 4.4.2024 upon honoring the meeting convened by the 2nd Respondent the 1st Applicant requested the said 2nd Respondent to convene another meeting to deliberate the emerging issues that had been identified in the meeting of the 27.3.2024.
8. It is their case that the Respondents and Interested Parties continue to infringe the Applicants' Copyrights by failing and or neglecting to effect the direct payment of pay back ring tones to the Applicants and other artists.
9. It is their case that there is no legal justification for the Respondents and Interested Parties' inaction of bypassing the law and instead effecting payment through Premium Rate Service Providers (PRSP) without the license of the Applicants.
10. According to them, the non-compliance of section 30C of the Copy Rights Act by the Respondents amounts to a breach of the constitutional and statutory duty on the part of the Respondents and the Interested Parties and their servants, employees and agents.
11. The Applicants are apprehensive that unless the sought orders are issued the Respondent will continue frustrating their rights enshrined under Article 10, 21, 23,33B,40[A] and 43 of the Constitution and the Applicants will suffer irreparable loss if interim orders do not issue.
The Applicants’ Submissions;
12. The Exparte Applicants submit that they are artists as evidenced by Exhibits marked JN1A &JN1B attached to the verifying affidavit dated 2.12.2024 to which the Applicants have relied on in support of their claim before this court.
13. The Copy Rights Act, CAP 130 Laws of Kenya was amendment to introduce section 30C.
14. They submit that despite the said amendment and the law, the Respondents have continued to allow through omissions the 1st and 2ndInterested Parties to breach the law by letting them pay ring back tune net revenue share to Premium Rate Service Providers (PRSP).
15. This fact has been confirmed by 1stinterested and the enjoined Interested Parties to these proceedings that they have been paying through Premium Rate Service Providers (PRSP).
16. The Applicants submit that they have tried in vain to engage the Respondents with a view of implementing the said provisions of the law but their efforts have borne no fruits to date. The attempts are set out in detail in the Applicants’ verifying affidavit.
17. They submit that Section 5 of the Act provides for The functions of the Board which shall be to—
a) direct, co-ordinate and oversee the implementation of laws and international treaties and conventions to which Kenya is a party and which relate to Copyright and other rights recognized by this Act and ensure the observance thereof;
b) license and supervise the activities of collective management societies as provided for under this Act;
c) devise promotion, introduction and training programs on Copyright and related rights, to which end it may co-ordinate its work with national, regional or international organisations concerned with the same subject matter;
d) organise the legislation on Copyright and related rights and propose other arrangements that will ensure its constant improvement and continuing effectiveness;
e) enlighten and inform the public on matters relating to Copyright and related rights;
f) maintain an effective data bank on authors and their works; and
g) administer and enforce all matters of Copyright and related rights in Kenya as provided for under this Act and to deal with ancillary matters connected with its functions under this Act.
18. Section 30C provides that;
(1) Without prejudice to section 30B, in the case of ring back tunes, the parties shall share the revenue net of taxes from the sale of ring back tunes, as follows—
a) the premium rate service provider at eight point five percent;
b) the telecommunication operator at thirty-nine point five percent;
c) the artiste or owner of the Copyright at not less than fifty-two percent.
(2) Despite subsection (1), all contracts between premium rate service providers and artistes or owners of the Copyright existing before the commencement of this Act shall apply until their expiry, and subsequent contracts shall conform to this provision.
(3) 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).
Whether the Applicants have locus to institute these proceedings;
19. According to the Respondents ,the Applicants ought to have brought a representative suit as opposed to the instant Judicial Review proceedings.
20. They submit that locus in Judicial Review is premised on “sufficient interest” in the matter and one must be an “aggrieved person” in which this court would intervene ex debito justitiae.
21. It is submitted that in all the correspondences attached to the Verifying Affidavit by the Exparte Applicants it is evidence that the Applicants have been keenly involved in the process of implementation of the Section 30C of the Law. For instance they attended a National Summit on 28.11.2022 as panelists. They have engaged the Respondents and the 1st interest party in trying to resolve the impasse. Coupled with that the Applicants are musicians in their own right in fact they are members of the Music Copyrights Society as members no. 432 and 6935.Significantly the 1st Applicant is the chairman of the Music Association Alliance Of Kenya.
22. They submit that they have met threshold of having sufficient interest and being aggrieved parties.
23. Reliance is placed in the case of Republic v Machakos County Government & 2 others Exparte Johnstone Muthama[2016] eKLR and in Ms. Priscilla Nyokabi Kanyua vs. Attorney General & Interim Independent Electoral Commission Nairobi HCCP No. 1 of 2010, in which the Court expressed itself as follows:
“Over time, the English Courts started to deviate and depart from their contextual Application of the law and adopted a more liberal and purposeful approach. They held that it would be a grave lacuna in the system of public law if a pressure group or even a single spirited taxpayer, were prevented by an outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right locus standito any member of public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury by a person who is not a mere busybody or a meddlesome interloper; since the dominant object of Public Interest Litigation is to ensure observation of the provision of the constitution or the law which can be best achieved to advance the cause of the Community or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration, but acting, bona fide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like action popularis of Roman Law whereby any citizen could bring such an action in respect of public delict. Standing will be granted on the basis of public interest litigation where the petition is bona fide and evidently for the public good and where the Court can provide an effective remedy… In Kenya the Court has emphatically stated that what gives locus standi is a minimal personal interest and such interest gives a person standing even though it is quite clear that he would not be more affected than any other member of the population. The court equally has recognised that organisations have rights similar to that of individual private member of the public. A new dawn was the ushered in and the dominion of Private Law and its restrictive approach was dealt a final blow. A new window of opportunity emerged in the area of Public Law and shackles of inhibition in the name of locus standi were broken and the law was liberalised and a purposeful approach took the driving seat in the area of Public Law. In human rights cases, public interest litigation, including lawsuits challenging the constitutionality of an Act of Parliament, the procedural trappings and restrictions, the preconditions of being an aggrieved person and other similar technical objections, cannot bar the jurisdiction of the court, or let justice bleed at the altar of technicality. The court has vast powers under section 60 of the Constitution of Kenya, to do justice without technical restrictions and restraints; and procedures and reliefs have to be moulded according to the facts and circumstances of each case and each situation. It is the fitness of things and in the interest of justice and the public good that litigation on constitutionality, entrenched fundamental rights, and broad public interest protection, has to be viewed. Narrow pure legalism for the sake of legalism will not do. We cannot uphold technicality only to allow a clandestine activity through the net of judicial vigilance in the garb of legality. Our legal system is intended to give effective remedies and reliefs whenever the Constitution of Kenya is threatened with violation. If an authority which is expected to move to protect the Constitution drags its feet, any person acting in good faith may approach the court to seek judicial intervention to ensure that the sanctity of the Constitution of Kenya is protected and not violated. As part of reasonable, fair and just procedure to uphold the Constitutional guarantees, the right to access to justice entails a liberal approach to the question of locus standi. Accordingly in constitutional questions, human right cases, public interest litigation and class actions, the ordinary rules of Anglo-Saxon jurisprudence, that an action can be brought only by a person to whom legal injury is caused, must be departed from. In these types of cases, any person or social action groups, acting in good faith, can approach the court seeking judicial redress for a legal injury caused or threatened to be caused or to a defined class of persons represented, or for a contravention of the Constitution, or injury to the nation. In such cases the court will not assist on such a public spirited individual or social action group espousing their cause, to show his or their standing to sue in the original Anglo-Saxon conception…”
32. The Court continued: “In the interest of the realisation of effective and meaningful human rights, the common law position in regard to locus standi has to change in public interest litigation. Many people whose fundamental rights are violated may not actually be in a position to approach the Court for relief, for instance, because they are unsophisticated and indigent, which in effect means that they are incapable of enforcing their fundamental rights, which remain merely on paper. Bearing this in mind, where large numbers of persons are affected in this way, there is merit in one person or organisation being able to approach the court on behalf of all those persons whose rights are allegedly infringed. This means that human rights become accessible to the metaphorical man or woman in the street. Accessibility to justice is fundamental to rendering the Constitution legitimate. In this sense, a broad approach to locus standi is required to fulfil the Constitutional court’s mandate to uphold the Constitution as this would ensure that Constitutional rights enjoy the full measure of protection to which they are entitled.”
24. Further reliance is placed in the case of Mumo Matemuvs. Trusted Society of Human Rights Alliance & 5 Others Civil Appeal No. 290 of 2012 the Court of Appeal stated at page 16 as follows:
“…our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the petition was filed before the High Court by an NGO whose mandate includes the pursuit of constitutionalism and we therefore reject the argument of lack of standing by counsel for the appellant. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st Respondent had the locus standi to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution.” 41. The issue of standing was also dealt with by Nyamu, J (as he then was) in Mureithi & 2 Others (for Mbari ya Murathimi Clan) vs. Attorney General & 5 Others Nairobi HCMCA No. 158 of 2005 [2006] 1 KLR 443 as follows: “The function of standing rules include: to restrict access to Judicial Review; to protect public bodies from vexatious litigants with no real interest in the outcome of the case but just a desire to make things difficult for the Government. Such litigants do not exist in real life – if they did the requirement for leave would take care of this; to prevent the conduct of Government business being unduly hampered and delayed by excessive litigation; to reduce the risk that civil servants will behave in over cautious and unhelpful ways in dealing with citizens for fear of being sued if things go wrong; to ration scarce judicial resources; to ensure that the argument on the merit is presented in the best possible way, by a person with a real interest in presenting it (but quality of presentation and personal interest do not always go together); to ensure that people do not meddle paternalistically in affairs of others…Judicial Review courts have generally adopted a very liberal approach on standing for the reason that Judicial Review is now regarded as an important pillar in vindicating the rule of law and constitutionalism. Thus a party who wants to challenge illegality, unreasonableness, arbitrariness, irrationality and abuse of power just to name a few interventions ought to be given a hearing by a court of law…The other reason is that although initially it was feared that the relaxation of standing would open floodgates of litigation and overwhelm the Courts this has in fact not happened and statistics reveal or show that on the ground, there are very few busybodies in this area. In addition, the path by eminent jurists in many countries highlighting on the need for the courts being broadminded on the issue…Under the English Order 53 now replaced in that country since 1977 and which applies to us by virtue of the Law Reform Act Cap 26 the test of locus standi is that a person is aggrieved. After 1977 the test is whether the Applicant has sufficient interest in the matter to which the Application relates. The statutory phrase “person aggrieved” was treated as a question of fact – “grievances are not to be measured in pounds and pence”…Although under statute our test is that of sufficient interest my view is that the horse has bolted and has left the stable – it would be difficult to restrain the great achievements in this area, which achievements have been attained on a case to case basis. It will be equally difficult to restrain the public spirited citizen or well organised and well equipped pressure groups from articulating issues of public law in our courts. It is for this reason that I think Courts have a wide discretion on the issue of standing and should use it well in the circumstances of each case. The words person aggrieved are of wide import and should not be subjected to a restricted interpretation. They do not include, if course, a mere busybody who is interfering in things that do not concern him but this include a person who has a genuine grievance because an order has been made which prejudicially affects his interests and the rights of citizens to enter the lists for the benefit of the public or a section of the public, of which they themselves are members. A direct financial or legal interest is not required in the test of sufficient interest…In my view the Courts must resist the temptation to try and contain Judicial Review in a straight jacket. Even on the important principle of establishing standing for the purposes of Judicial Review the Courts must resist being rigidly chained to the past defined situations of standing and look at the nature of the matter before them…The Applicants are members of a Kikuyu clan which contends that during the Mau Mauwar (colonial emergency) in 1955 their clan land was unlawfully acquired because the then colonial Governor and subsequently the presidents of the Independent Kenya Nation did not have the power to alienate clan or trust land for private purpose or at all. In terms of Order 53 they are “persons directly affected”. I find no basis for giving those words a different meaning to that set out in the case law above. The Court has to adopt a purposive interpretation. I have no hesitation in finding that the clan members and their successors are sufficiently aggrieved since they claim an interest in the parcels of land which they allege was clan and trust land and which is now part of a vibrant Municipality. I find it in order that the Applicants represent themselves as individuals and the wider clan and I unequivocally hold that they have the required standing to bring the matter to this Court. Moreover in this case I find a strong link between standing and at least one ground for intervention – the claim that the land belonged to the clan and finally there cannot be a better challenger than members of the affected clan.”
25. They also rely in the case of Republic v MachakosCounty Government, supra. “The strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right locus standi to any member of public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury by a person”.
26. They submit that the Applicants are proper persons before this court.
Whether an order of mandamus can be issued against the 1st and 2nd Interested Parties.
27. Section 30 C(3) of the act, it states;
“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).”
28. They submit that the 1st Respondent in its replying affidavit dated 9.7.2025 deponed by PAUL KAINDO at paragraph 11 states;
“The statutory and administrative obligation which the Applicant seeks to enforce through mandamus lies solely within the mandate of the 1st and 2ndInterested Parties and not the Respondents”.
29. To them this is a clear admission that the 1stand 2ndInterested Parties’ have a statutory and administrative to enforce section 30C [3] of the Act.
30. In Ernst & Young v Capital Markets Authority & another [2019] eKLR the court emphatically stated that;
“As can be seen, the entrenchment of the power of Judicial Review, as a constitutional principle should of necessity expand the scope of the remedy. Parties, who were once denied Judicial Review on the basis of the public-private power dichotomy, should now access Judicial Review if the person, body or authority against whom it is claimed exercised a quasi-judicial function or a function that is likely to affect his rights. An order of Judicial Review is one of the reliefs for violation of fundamentals rights and freedoms under Article 23(3)(f). I strongly hold the view that court decisions should show strands of the recognition of the Constitution as the basis of Judicial Review.
Thus, Judges cannot afford to routinely cite common-law cases to deny or grant Judicial Review on the basis of the public-private dichotomy. Moreover, the incompatibility of the common law with transformative constitutional-ism has also been the concern of Davis and Klarein Transformative Constitutionalism and the Common and Customary Law [66] where they express the apprehension that, the inbred formalism of the legal culture and the absence of a well-developed tradition of critical jurisprudence may stultify efforts to renovate the legal infrastructure in the way envisaged by the Constitution.
Under the Constitution of Kenya, 2010 Judicial Review orders, in my view, are applicable against any private person, body or authority who exercises a judicial or quasi-judicial functions by which a right or fundamental freedom of a person has been or is likely to be adversely affected. The traditional jurisprudence of Judicial Review restricted the ambit of judicial supervision of procedures to situations where the functions classified as “judicial or quasi-judicial” had been performed by “a public authority.”
31. They submit that Article 165(6) gives the High Court the powers of Judicial Review over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function. Judicial Review is no longer a common law prerogative directed purely at public bodies to enforce the will of Parliament, but is now a constitutional principle to safeguard the constitutional principles, values and purposes. The Judicial Review powers that were previously regulated by the common law under the prerogative and the principles developed by the courts to control the exercise of public power are now regulated by the Constitution.
32. Reliance is also placed in the court of appeal in Child Welfare Society of Kenya Republic Exparte Child in Family Focus Kenya Civil Appeal No. 20 Of 2015 EKLR stated;
“40. However, the dynamism of society and the events of recent history have decidedly thrust JR into a whole new trajectory. Nyamu, J. as he then was, clearly 'smelt' the impending extension of the scope of JR in 1998 when in the case of Republic vs The Commissioner of Lands, Exparte Lake Flowers Limited Nairobi Misc. Application No. 1235 of 1998 he stated as follows: “..Courts must resist the temptation to try and contain Judicial Review in a straight jacket.......Although Judicial Review has been bequeathed to us with defined interventions namely illegality, irrationality and impropriety of procedure the intervention has been extended using the principle of proportionality.....The court will be called upon to intervene in situations where authorities and persons act in bad faith, abuse power, fail to take into account relevant considerations in the decision making or take into account irrelevant considerations or act contrary to legitimate expectations......Judicial Review is a tool of justice, which can be made to serve the needs of a growing society on a case-to-case basis.........The court envisions a future growth of Judicial Review in the human rights arena where it is becoming crystal clear that human rights will evolve and grow with the society.”
33. In the case of Bahajj Holdings Ltd. vs Abdo Mohammed Bahajj & Company Ltd. & another Civil Application No. Nai. 97 of 1998 stating that the limits of Judicial Review continue expanding so as to meet the changing conditions and demands affecting administrative decisions.
34. The trend continued in Kuria & 3 Others vs Attorney General [2002] 2 KLR 69 where the Court expressed itself as follows:
“So long as the orders by way of Judicial Review remain the only legally practicable remedies for the control of administrative decisions, and in view of the changing concepts of good governance which demand transparency by anybody of persons having legal authority to determine questions affecting the rights of subjects under the obligation for such a body to act judicially, the limits of Judicial Review shall continue extending so as to meet the changing conditions and demands affecting administrative decisions...... This therefore implies that the limits of Judicial Review should not be curtailed, but rather should be nurtured and extended in order to meet the changing conditions and demands affecting the decision-making process in the contemporary society. The law must develop to cover similar or new situations and the Application for Judicial Review should not be stifled by old decisions and concepts, but must be expansive, innovative and appropriate to cover new areas where they fit." See also Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43; Re: National Hospital Insurance Fund Act and Central Organisation of Trade Unions (Kenya) Nairobi HCMA No. 1747 of 2004 [2006] 1 EA 47, and Keroche Industries Limited vs Kenya Revenue Authority & 5 Others (supra).
35. In Republic vs Commissioner of Customs Services Exparte Imperial Bank Limited [2015] eKLR recognized that;
“Judicial Review is a constitutional supervision of public authorities involving a challenge to the legal validity of the decision" and the "need to fully explore and develop the concept of Judicial Review in Kenya as a constitutional supervision of power and develop the law on this front.” Mativo, J. similarly in the case of Ernst & Young LLP vs Capital Markets Authority & Another [2017] eKLR (decided on 7th March, 2017), extensively examined comparative jurisprudence before expressing the following view:-
“...Judicial Review is available as relief to a claim of violation of the rights and freedoms guaranteed in the constitution. The constitution has expressly granted the High Court jurisdiction over any person, body or authority exercising a quasi-judicial function. The point of focus is no longer whether the function was public or private or by a statutory body, but whether the function was judicial or quasi-judicial and affected constitutional rights including the right to fair administrative action under Article 47, or the right to natural justice under Article 50. The Kenyan judiciar
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1. Section 30 C of the Copyright Act No. 12 of 2001 addresses the payment of ring back tune revenue. This was introduced through the Copyright (Amendment) Act No.14 of 2022 that was passed by Parliament in February 2022 and signed into law by the President in April 2022.
2. The Act establishes a revenue-sharing formula for ring back tunes, as follows:
a) Artists or Copyright holders: at least 52%
b) Telecommunication operators: 39.5%
c) Premium rate service providers: 8.5%
3. Under Section 30C (3) of the Copyright Act, the 1st and 2ndInterested Parties herein are required to remit the revenue allocated to artistes directly to the artistes or Copyright holders.
4. The lack or regulations to guide the foregoing has precipitated the filing of the Application dated 16.5.25 wherein the Applicant seeks the following orders;
1) That this Honorable Court be pleased to grant the Applicants an order of mandamus for the 1st,2nd and 3rd Respondents to be compelled to enforce section30C |1| & Section 30C 131 of the Copy Rights Act, cap 130 laws of Kenya against the 1st and 2nd Interested Parties herein;
2) That this Honorable Court be pleased to grant the Applicants an order of mandamus to be compel the 1st and 2nd Interested Parties to enforce section 30C (1]& Section 30C [3] of the Copy Rights Act, cap 130 laws of Kenya against the 1stand 2nd Interested Parties herein;
3) That this Honorable Court be pleased to grant the Applicants an order of mandamus to be compelled the 1st and 2nd Interested Parties to cease henceforth from remitting and or paying ring back tune net revenue share to Premium Rate Service Providers (PRSP) contrary to section 30C|1] & Section 30C|3] of the Copy Rights Act, cap 130 laws of Kenya;
4) Any further or other orders or directions which the Honorable Court considers appropriate in the circumstances.
The Applicant’s Case;
5. It is the Applicant’s case that the Copy Rights Act, CAP 130 laws of Kenya was amendment to introduce Section 30C which reads ,Payment of ring back tune revenue;
“(1) Without prejudice to section 30B, in the case of ring back tunes, the parties shall share the revenue net of taxes from the sale of ring back tunes, as follows -
(a) the premium rate service provider at eight point five percent;
(b) the telecommunication operator at thirty-nine point five percent;
(c) the artiste or owner of the Copyright at not less than fifty two percent.
(2) Despite subsection (1), all contracts between premium rate service providers and artistes or owners of the Copyright existing before the commencement of this Act shall apply until their expiry, and subsequent contracts shall conform to this provision.
(3) 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).”
6. The Applicants are opposed to the fact that the Respondents have continued to allow through omissions the 1st and 2nd Interested Parties to breach the law by letting them pay ring back tune net revenue share to Premium Rate Service Providers (PRSP).
7. The Applicants argue that they have tried in vain to engage the Respondents with a view of implementing the said provisions of the law but their efforts have borne no fruits to date. Following are examples of the said efforts;
1) On 27.7.2023 the 1st Applicant wrote to the 1stRespondent to convene a meeting on the issue of direct payment of artist royalties.
2) On 31.7.2023 the 1st Respondent in a letter addressed to the 1st Applicant sought to engage more stake holders and proposed a meeting that never was on the week of 7th to 11th August, 2023.
3) On 18.9.2023 the 1st Applicant wrote the 1stRespondent on the issue of direct payment but the same was never responded to.
4) On 21.3.2024 the 2nd Respondent wrote to the Interested Parties with a view of seeking ways of implementing section 30 C of the copy right law.
5) On 4.4.2024 upon honoring the meeting convened by the 2nd Respondent the 1st Applicant requested the said 2nd Respondent to convene another meeting to deliberate the emerging issues that had been identified in the meeting of the 27.3.2024.
8. It is their case that the Respondents and Interested Parties continue to infringe the Applicants' Copyrights by failing and or neglecting to effect the direct payment of pay back ring tones to the Applicants and other artists.
9. It is their case that there is no legal justification for the Respondents and Interested Parties' inaction of bypassing the law and instead effecting payment through Premium Rate Service Providers (PRSP) without the license of the Applicants.
10. According to them, the non-compliance of section 30C of the Copy Rights Act by the Respondents amounts to a breach of the constitutional and statutory duty on the part of the Respondents and the Interested Parties and their servants, employees and agents.
11. The Applicants are apprehensive that unless the sought orders are issued the Respondent will continue frustrating their rights enshrined under Article 10, 21, 23,33B,40[A] and 43 of the Constitution and the Applicants will suffer irreparable loss if interim orders do not issue.
The Applicants’ Submissions;
12. The Exparte Applicants submit that they are artists as evidenced by Exhibits marked JN1A &JN1B attached to the verifying affidavit dated 2.12.2024 to which the Applicants have relied on in support of their claim before this court.
13. The Copy Rights Act, CAP 130 Laws of Kenya was amendment to introduce section 30C.
14. They submit that despite the said amendment and the law, the Respondents have continued to allow through omissions the 1st and 2ndInterested Parties to breach the law by letting them pay ring back tune net revenue share to Premium Rate Service Providers (PRSP).
15. This fact has been confirmed by 1stinterested and the enjoined Interested Parties to these proceedings that they have been paying through Premium Rate Service Providers (PRSP).
16. The Applicants submit that they have tried in vain to engage the Respondents with a view of implementing the said provisions of the law but their efforts have borne no fruits to date. The attempts are set out in detail in the Applicants’ verifying affidavit.
17. They submit that Section 5 of the Act provides for The functions of the Board which shall be to—
a) direct, co-ordinate and oversee the implementation of laws and international treaties and conventions to which Kenya is a party and which relate to Copyright and other rights recognized by this Act and ensure the observance thereof;
b) license and supervise the activities of collective management societies as provided for under this Act;
c) devise promotion, introduction and training programs on Copyright and related rights, to which end it may co-ordinate its work with national, regional or international organisations concerned with the same subject matter;
d) organise the legislation on Copyright and related rights and propose other arrangements that will ensure its constant improvement and continuing effectiveness;
e) enlighten and inform the public on matters relating to Copyright and related rights;
f) maintain an effective data bank on authors and their works; and
g) administer and enforce all matters of Copyright and related rights in Kenya as provided for under this Act and to deal with ancillary matters connected with its functions under this Act.
18. Section 30C provides that;
(1) Without prejudice to section 30B, in the case of ring back tunes, the parties shall share the revenue net of taxes from the sale of ring back tunes, as follows—
a) the premium rate service provider at eight point five percent;
b) the telecommunication operator at thirty-nine point five percent;
c) the artiste or owner of the Copyright at not less than fifty-two percent.
(2) Despite subsection (1), all contracts between premium rate service providers and artistes or owners of the Copyright existing before the commencement of this Act shall apply until their expiry, and subsequent contracts shall conform to this provision.
(3) 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).
Whether the Applicants have locus to institute these proceedings;
19. According to the Respondents ,the Applicants ought to have brought a representative suit as opposed to the instant Judicial Review proceedings.
20. They submit that locus in Judicial Review is premised on “sufficient interest” in the matter and one must be an “aggrieved person” in which this court would intervene ex debito justitiae.
21. It is submitted that in all the correspondences attached to the Verifying Affidavit by the Exparte Applicants it is evidence that the Applicants have been keenly involved in the process of implementation of the Section 30C of the Law. For instance they attended a National Summit on 28.11.2022 as panelists. They have engaged the Respondents and the 1st interest party in trying to resolve the impasse. Coupled with that the Applicants are musicians in their own right in fact they are members of the Music Copyrights Society as members no. 432 and 6935.Significantly the 1st Applicant is the chairman of the Music Association Alliance Of Kenya.
22. They submit that they have met threshold of having sufficient interest and being aggrieved parties.
23. Reliance is placed in the case of Republic v Machakos County Government & 2 others Exparte Johnstone Muthama[2016] eKLR and in Ms. Priscilla Nyokabi Kanyua vs. Attorney General & Interim Independent Electoral Commission Nairobi HCCP No. 1 of 2010, in which the Court expressed itself as follows:
“Over time, the English Courts started to deviate and depart from their contextual Application of the law and adopted a more liberal and purposeful approach. They held that it would be a grave lacuna in the system of public law if a pressure group or even a single spirited taxpayer, were prevented by an outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped. The strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right locus standito any member of public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury by a person who is not a mere busybody or a meddlesome interloper; since the dominant object of Public Interest Litigation is to ensure observation of the provision of the constitution or the law which can be best achieved to advance the cause of the Community or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration, but acting, bona fide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like action popularis of Roman Law whereby any citizen could bring such an action in respect of public delict. Standing will be granted on the basis of public interest litigation where the petition is bona fide and evidently for the public good and where the Court can provide an effective remedy… In Kenya the Court has emphatically stated that what gives locus standi is a minimal personal interest and such interest gives a person standing even though it is quite clear that he would not be more affected than any other member of the population. The court equally has recognised that organisations have rights similar to that of individual private member of the public. A new dawn was the ushered in and the dominion of Private Law and its restrictive approach was dealt a final blow. A new window of opportunity emerged in the area of Public Law and shackles of inhibition in the name of locus standi were broken and the law was liberalised and a purposeful approach took the driving seat in the area of Public Law. In human rights cases, public interest litigation, including lawsuits challenging the constitutionality of an Act of Parliament, the procedural trappings and restrictions, the preconditions of being an aggrieved person and other similar technical objections, cannot bar the jurisdiction of the court, or let justice bleed at the altar of technicality. The court has vast powers under section 60 of the Constitution of Kenya, to do justice without technical restrictions and restraints; and procedures and reliefs have to be moulded according to the facts and circumstances of each case and each situation. It is the fitness of things and in the interest of justice and the public good that litigation on constitutionality, entrenched fundamental rights, and broad public interest protection, has to be viewed. Narrow pure legalism for the sake of legalism will not do. We cannot uphold technicality only to allow a clandestine activity through the net of judicial vigilance in the garb of legality. Our legal system is intended to give effective remedies and reliefs whenever the Constitution of Kenya is threatened with violation. If an authority which is expected to move to protect the Constitution drags its feet, any person acting in good faith may approach the court to seek judicial intervention to ensure that the sanctity of the Constitution of Kenya is protected and not violated. As part of reasonable, fair and just procedure to uphold the Constitutional guarantees, the right to access to justice entails a liberal approach to the question of locus standi. Accordingly in constitutional questions, human right cases, public interest litigation and class actions, the ordinary rules of Anglo-Saxon jurisprudence, that an action can be brought only by a person to whom legal injury is caused, must be departed from. In these types of cases, any person or social action groups, acting in good faith, can approach the court seeking judicial redress for a legal injury caused or threatened to be caused or to a defined class of persons represented, or for a contravention of the Constitution, or injury to the nation. In such cases the court will not assist on such a public spirited individual or social action group espousing their cause, to show his or their standing to sue in the original Anglo-Saxon conception…”
32. The Court continued: “In the interest of the realisation of effective and meaningful human rights, the common law position in regard to locus standi has to change in public interest litigation. Many people whose fundamental rights are violated may not actually be in a position to approach the Court for relief, for instance, because they are unsophisticated and indigent, which in effect means that they are incapable of enforcing their fundamental rights, which remain merely on paper. Bearing this in mind, where large numbers of persons are affected in this way, there is merit in one person or organisation being able to approach the court on behalf of all those persons whose rights are allegedly infringed. This means that human rights become accessible to the metaphorical man or woman in the street. Accessibility to justice is fundamental to rendering the Constitution legitimate. In this sense, a broad approach to locus standi is required to fulfil the Constitutional court’s mandate to uphold the Constitution as this would ensure that Constitutional rights enjoy the full measure of protection to which they are entitled.”
24. Further reliance is placed in the case of Mumo Matemuvs. Trusted Society of Human Rights Alliance & 5 Others Civil Appeal No. 290 of 2012 the Court of Appeal stated at page 16 as follows:
“…our commitment to the values of substantive justice, public participation, inclusiveness, transparency and accountability under Article 10 of the Constitution by necessity and logic broadens access to the courts. In this broader context, this Court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts except only when such litigation is hypothetical, abstract or is an abuse of the judicial process. In the case at hand, the petition was filed before the High Court by an NGO whose mandate includes the pursuit of constitutionalism and we therefore reject the argument of lack of standing by counsel for the appellant. We hold that in the absence of a showing of bad faith as claimed by the appellant, without more, the 1st Respondent had the locus standi to file the petition. Apart from this, we agree with the superior court below that the standard guide for locus standi must remain the command in Article 258 of the Constitution.” 41. The issue of standing was also dealt with by Nyamu, J (as he then was) in Mureithi & 2 Others (for Mbari ya Murathimi Clan) vs. Attorney General & 5 Others Nairobi HCMCA No. 158 of 2005 [2006] 1 KLR 443 as follows: “The function of standing rules include: to restrict access to Judicial Review; to protect public bodies from vexatious litigants with no real interest in the outcome of the case but just a desire to make things difficult for the Government. Such litigants do not exist in real life – if they did the requirement for leave would take care of this; to prevent the conduct of Government business being unduly hampered and delayed by excessive litigation; to reduce the risk that civil servants will behave in over cautious and unhelpful ways in dealing with citizens for fear of being sued if things go wrong; to ration scarce judicial resources; to ensure that the argument on the merit is presented in the best possible way, by a person with a real interest in presenting it (but quality of presentation and personal interest do not always go together); to ensure that people do not meddle paternalistically in affairs of others…Judicial Review courts have generally adopted a very liberal approach on standing for the reason that Judicial Review is now regarded as an important pillar in vindicating the rule of law and constitutionalism. Thus a party who wants to challenge illegality, unreasonableness, arbitrariness, irrationality and abuse of power just to name a few interventions ought to be given a hearing by a court of law…The other reason is that although initially it was feared that the relaxation of standing would open floodgates of litigation and overwhelm the Courts this has in fact not happened and statistics reveal or show that on the ground, there are very few busybodies in this area. In addition, the path by eminent jurists in many countries highlighting on the need for the courts being broadminded on the issue…Under the English Order 53 now replaced in that country since 1977 and which applies to us by virtue of the Law Reform Act Cap 26 the test of locus standi is that a person is aggrieved. After 1977 the test is whether the Applicant has sufficient interest in the matter to which the Application relates. The statutory phrase “person aggrieved” was treated as a question of fact – “grievances are not to be measured in pounds and pence”…Although under statute our test is that of sufficient interest my view is that the horse has bolted and has left the stable – it would be difficult to restrain the great achievements in this area, which achievements have been attained on a case to case basis. It will be equally difficult to restrain the public spirited citizen or well organised and well equipped pressure groups from articulating issues of public law in our courts. It is for this reason that I think Courts have a wide discretion on the issue of standing and should use it well in the circumstances of each case. The words person aggrieved are of wide import and should not be subjected to a restricted interpretation. They do not include, if course, a mere busybody who is interfering in things that do not concern him but this include a person who has a genuine grievance because an order has been made which prejudicially affects his interests and the rights of citizens to enter the lists for the benefit of the public or a section of the public, of which they themselves are members. A direct financial or legal interest is not required in the test of sufficient interest…In my view the Courts must resist the temptation to try and contain Judicial Review in a straight jacket. Even on the important principle of establishing standing for the purposes of Judicial Review the Courts must resist being rigidly chained to the past defined situations of standing and look at the nature of the matter before them…The Applicants are members of a Kikuyu clan which contends that during the Mau Mauwar (colonial emergency) in 1955 their clan land was unlawfully acquired because the then colonial Governor and subsequently the presidents of the Independent Kenya Nation did not have the power to alienate clan or trust land for private purpose or at all. In terms of Order 53 they are “persons directly affected”. I find no basis for giving those words a different meaning to that set out in the case law above. The Court has to adopt a purposive interpretation. I have no hesitation in finding that the clan members and their successors are sufficiently aggrieved since they claim an interest in the parcels of land which they allege was clan and trust land and which is now part of a vibrant Municipality. I find it in order that the Applicants represent themselves as individuals and the wider clan and I unequivocally hold that they have the required standing to bring the matter to this Court. Moreover in this case I find a strong link between standing and at least one ground for intervention – the claim that the land belonged to the clan and finally there cannot be a better challenger than members of the affected clan.”
25. They also rely in the case of Republic v MachakosCounty Government, supra. “The strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right locus standi to any member of public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury by a person”.
26. They submit that the Applicants are proper persons before this court.
Whether an order of mandamus can be issued against the 1st and 2nd Interested Parties.
27. Section 30 C(3) of the act, it states;
“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).”
28. They submit that the 1st Respondent in its replying affidavit dated 9.7.2025 deponed by PAUL KAINDO at paragraph 11 states;
“The statutory and administrative obligation which the Applicant seeks to enforce through mandamus lies solely within the mandate of the 1st and 2ndInterested Parties and not the Respondents”.
29. To them this is a clear admission that the 1stand 2ndInterested Parties’ have a statutory and administrative to enforce section 30C [3] of the Act.
30. In Ernst & Young v Capital Markets Authority & another [2019] eKLR the court emphatically stated that;
“As can be seen, the entrenchment of the power of Judicial Review, as a constitutional principle should of necessity expand the scope of the remedy. Parties, who were once denied Judicial Review on the basis of the public-private power dichotomy, should now access Judicial Review if the person, body or authority against whom it is claimed exercised a quasi-judicial function or a function that is likely to affect his rights. An order of Judicial Review is one of the reliefs for violation of fundamentals rights and freedoms under Article 23(3)(f). I strongly hold the view that court decisions should show strands of the recognition of the Constitution as the basis of Judicial Review.
Thus, Judges cannot afford to routinely cite common-law cases to deny or grant Judicial Review on the basis of the public-private dichotomy. Moreover, the incompatibility of the common law with transformative constitutional-ism has also been the concern of Davis and Klarein Transformative Constitutionalism and the Common and Customary Law [66] where they express the apprehension that, the inbred formalism of the legal culture and the absence of a well-developed tradition of critical jurisprudence may stultify efforts to renovate the legal infrastructure in the way envisaged by the Constitution.
Under the Constitution of Kenya, 2010 Judicial Review orders, in my view, are applicable against any private person, body or authority who exercises a judicial or quasi-judicial functions by which a right or fundamental freedom of a person has been or is likely to be adversely affected. The traditional jurisprudence of Judicial Review restricted the ambit of judicial supervision of procedures to situations where the functions classified as “judicial or quasi-judicial” had been performed by “a public authority.”
31. They submit that Article 165(6) gives the High Court the powers of Judicial Review over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function. Judicial Review is no longer a common law prerogative directed purely at public bodies to enforce the will of Parliament, but is now a constitutional principle to safeguard the constitutional principles, values and purposes. The Judicial Review powers that were previously regulated by the common law under the prerogative and the principles developed by the courts to control the exercise of public power are now regulated by the Constitution.
32. Reliance is also placed in the court of appeal in Child Welfare Society of Kenya Republic Exparte Child in Family Focus Kenya Civil Appeal No. 20 Of 2015 EKLR stated;
“40. However, the dynamism of society and the events of recent history have decidedly thrust JR into a whole new trajectory. Nyamu, J. as he then was, clearly 'smelt' the impending extension of the scope of JR in 1998 when in the case of Republic vs The Commissioner of Lands, Exparte Lake Flowers Limited Nairobi Misc. Application No. 1235 of 1998 he stated as follows: “..Courts must resist the temptation to try and contain Judicial Review in a straight jacket.......Although Judicial Review has been bequeathed to us with defined interventions namely illegality, irrationality and impropriety of procedure the intervention has been extended using the principle of proportionality.....The court will be called upon to intervene in situations where authorities and persons act in bad faith, abuse power, fail to take into account relevant considerations in the decision making or take into account irrelevant considerations or act contrary to legitimate expectations......Judicial Review is a tool of justice, which can be made to serve the needs of a growing society on a case-to-case basis.........The court envisions a future growth of Judicial Review in the human rights arena where it is becoming crystal clear that human rights will evolve and grow with the society.”
33. In the case of Bahajj Holdings Ltd. vs Abdo Mohammed Bahajj & Company Ltd. & another Civil Application No. Nai. 97 of 1998 stating that the limits of Judicial Review continue expanding so as to meet the changing conditions and demands affecting administrative decisions.
34. The trend continued in Kuria & 3 Others vs Attorney General [2002] 2 KLR 69 where the Court expressed itself as follows:
“So long as the orders by way of Judicial Review remain the only legally practicable remedies for the control of administrative decisions, and in view of the changing concepts of good governance which demand transparency by anybody of persons having legal authority to determine questions affecting the rights of subjects under the obligation for such a body to act judicially, the limits of Judicial Review shall continue extending so as to meet the changing conditions and demands affecting administrative decisions...... This therefore implies that the limits of Judicial Review should not be curtailed, but rather should be nurtured and extended in order to meet the changing conditions and demands affecting the decision-making process in the contemporary society. The law must develop to cover similar or new situations and the Application for Judicial Review should not be stifled by old decisions and concepts, but must be expansive, innovative and appropriate to cover new areas where they fit." See also Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43; Re: National Hospital Insurance Fund Act and Central Organisation of Trade Unions (Kenya) Nairobi HCMA No. 1747 of 2004 [2006] 1 EA 47, and Keroche Industries Limited vs Kenya Revenue Authority & 5 Others (supra).
35. In Republic vs Commissioner of Customs Services Exparte Imperial Bank Limited [2015] eKLR recognized that;
“Judicial Review is a constitutional supervision of public authorities involving a challenge to the legal validity of the decision" and the "need to fully explore and develop the concept of Judicial Review in Kenya as a constitutional supervision of power and develop the law on this front.” Mativo, J. similarly in the case of Ernst & Young LLP vs Capital Markets Authority & Another [2017] eKLR (decided on 7th March, 2017), extensively examined comparative jurisprudence before expressing the following view:-
“...Judicial Review is available as relief to a claim of violation of the rights and freedoms guaranteed in the constitution. The constitution has expressly granted the High Court jurisdiction over any person, body or authority exercising a quasi-judicial function. The point of focus is no longer whether the function was public or private or by a statutory body, but whether the function was judicial or quasi-judicial and affected constitutional rights including the right to fair administrative action under Article 47, or the right to natural justice under Article 50. The Kenyan judiciar
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