' RULING ON LEAVE TO APPLY AND STAY
This ruling determines the two applicants’ Chamber Summons dated 7 th May 2025 and filed in court on the even date. The application is brought under Order 53 Rules 1,2,3 and 4 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and the relevant provisions of the Law Reform Act.
The applicants seek leave of this Court to apply for an order of Mandamus to compel the respondents to enforce provisions of Sections 5A,5B,5G,46E, 46E(4A-D), 46E(5),46F(1A,1B,1E,1G,1i) of the Copyright Act, CAP 130 Laws of Kenya.
The applicants also pray that the leave is granted do operate as a stay of the Interested Party’s collection of royalties from users of copyrighted works for the musicians and artists pending the hearing and final determination of these proceedings.
The Applicants also seek that in compliance with prayer 3 of the Chamber Summons, the 1 st Respondent does set up an alternative independent payment mechanism for the collection of royalties within 30 days.
The application is verified by the affidavit of Justus Ngemu and Saul Eskuri jointly sworn on 7 th May 2025.
The Applicants’ case is that they are musicians, artists and copyright holders of original works titled “ Siasa mbaya maisha mbaya, Kilio kwa mungu, Roda and uchie” respectively.
The Applicants also state that they are bona fide members of the Music Copyright Society of Kenya, member Nos. 432 and 6935 respectively. That Section 5 of the Copyrights Act provides for the Respondent’s functions.
It is the applicants’ further case that on 2 nd February 2024, the 1 st Respondent revealed that the Interested Party could not sufficiently account for Ksh.56,000,000 or thereabouts received as royalties for artists and musicians.
That upon the said revelation, the 1 st Respondent forwarded the said letter to the office of the Ethics & Anti-Corruption Commissions for investigations to be undertaken.
The Applicants state that to date, no action has been taken against the members of the Interested Party who had perpetrated the alleged loss of Ksh. 56,000,000. Further, that the 1 st Respondent deemed it not necessary or fit to report the said loss of funds to the Office of Director of Public Prosecutions under Section 39 of the Copyright Act, Cap 130 Laws of Kenya.
According to the Applicants, on 18 th March 2025, the Interested Party acknowledged that it was embroiled in leadership wrangles and has of today two warring camps within themselves each purporting to represent the affairs of the Applicants and other musicians in the country.
The Applicants state that the said two camps of the Interested Party have now each set up bank accounts and pay bill accounts for the collection of revenue from the music users in Kenya and worldwide with no accountability mechanics from the Respondents.
That the Respondents have the statutory mandate to reign over the affairs of the Interested Party but have deliberately ignored and or neglected to undertake their statutory duties to enforce the provisions of the Copyright Act.
Further, it is asserted that the Interested Party’s actions are self-centered to attain their own financial and economic gains to the disadvantage of the real owners of the copyrights who are the Applicants and other self-deserving Kenyan artists who have no other source of income apart from their artistic work and royalty collections.
They contend that unless this court intervenes and grants the orders sought, the Interested Party shall continue to mint millions reaping where they never sowed while the applicants and other wallop in abject poverty.
It is also the applicants’ case that since the Respondents have failed to perform their statutory duty, it is only this Court which can come to the aid of the Applicants and demand accountability from the Respondents and the Interested Party herein.
The Applicants claim that they have suffered loss of economic right and damage due to the actions on the part of the Respondents and the Interested party. That non-compliance with Sections 5A, 5B, 5G, 46E, 46E[4A-D] 46E[5], 46F[1A,1B,1E,1G,1I] of the Copyright Act by the Respondents is a breach of the constitutional and statutory duty on the part of the Respondents and the interested party and their servants, employees and agents.
The Applicants’ further averment is that they are apprehensive that unless the court intervenes and compels the Respondents and Interested Party to comply with the law, the applicants’ intellectual rights will continue to be infringed without good cause, an act which will irredeemably occasion grievous harm to both the Applicants.
The Interested Party’s Response
Only the Interested Party filed a response to the application through a preliminary objection dated 26 th May 2025 and a replying affidavit sworn on 27 th May 2025 by Dr. Ezekiel Mutua who introduces himself as the Chief Executive Officer of the Interested Party.
The preliminary objection raises three grounds which are that the Application offends the exhaustion principle available to the Applicants and the Interested Party; that it seeks for substantive Orders against an Interested Party and that it offends the principle of res judicata and res sub-judice.
In the replying affidavit, the Interested Party depones that most of the prayers sought are not attainable for the reason that the subject Statute under which the same prayers are sought does not have Sections 5A, 5B and, 5G and also Sections 46E (4A-D), and also that Sections 46F (1A, 1B, 1E, 1G and 1I) are not found in the Copyright Act Chapter 130 Laws of Kenya hence strange legal provisions have been relied on.
The Interested Party states that leave so granted to stay the Interested Party’s collection of royalties for her members, which is a statutory obligation for the Interested Party is a substantive prayer.
According to the Interested Party, the Applicants seek the court to direct advancement of alleged investigations which are in the hands of the Ethics and Anti-Corruption Commission of Kenya, which is an independent Constitutional body that takes no directions from any quarters.
Further, that there are numerous suits including High Court Commercial suit Nos. E698 and E730 both of 2024, filed by members against the Interested Party on the same subject matter and issues.
The Interested Party reiterates that the suit herein offends the exhaustion principle and that the Applicants have not exploited the internal mechanism dispute resolution structures established by the Interested Party’s Memorandum and Articles of Association, and also that the orders sought are not attainable because the Applicant seeks and/or intends to seek for substantive orders against the Interested Party in their Substantive Judicial review case, which mechanism and approach is strange in law and procedure.
The Interested Party also filed a further affidavit sworn on 12 th July 2025 by Dr. Ezekiel Mutua.
In the affidavit, it is deposed that it is misleading for the Applicants to claim that Dr. Ezekiel Mutua has ceased to be the Interested Party’s Chief Executive Officer. That Dr. Mutua has never been served with the alleged public notice and alleged termination letter dated 3 rd April, 2025 signed by one Lazarus Muli, in the alleged capacity of him being the chairperson of the Interested Party’s Board of Directors save for the termination letter having been in different courts by persons connected to the said Lazarus Muli in one way or another.
That Lazarus Muli is not one of the Board members of the Interested Party and was not a member at the time of signing the letter dated 3 rd April, 2025 and as such, that the letter is a forgery.
Dr. Mutua states that the issue of his employment and the alleged termination portrayed by the Applicant herein vide the impugned alleged termination letter dated 3 rd April, 2025 is live, pending determination before a different court, same cases filed by the same Lazarus Muli through his proxies. Further, that this Court has no jurisdiction to determine the validity of the alleged termination, which issue is being subtly introduced here to mislead the court. The deponent avers in deposition that the employment dispute alluded to hereinabove is a reserve of the Employment and Labour Relations Court.
Submissions
The Applicants filed written submissions dated 8 th July 2025. While relying on Section 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules of 2013 and the case of Muruatetu & another vs. Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae (Petition 15 & 16 of 2015 (Consolidated) [2016] KESC 12 (KLR) (Civ) (28 January 2016) (Ruling ), the applicants submit that the Interested Party has a stake in the outcome of the matter at hand.
It is argued that if this court was to render a decision reasserting that the Respondents have a statutory duty to enforce the Copyrights Act, then it would require that the Interested Party does comply with the said directive.
The Applicants also argue that the Interested Party can only comply with the statute if it is a party to the current court proceedings and as such is a proper party and necessary party to these proceedings. It is further submitted that as the orders issued will have an impact on the Interested Party, the latter has a right to be given a fair hearing pursuant to the rules of natural justice.
It is also submitted that the Interested Party is a necessary party as no other entity has been tasked to account for the loss of the Ksh. 56,000,000/-. Further, that the letters dated 26 th June 2025 issued by the 1 st Respondent, 28 th November 2024 issued by the Interested Party and 30 th August 2024 issued by the 1 st Respondent are a confirmation that all is not well with the Interested Party.
The Applicants refer to Section 46E (1) of the Copyright Act which according to the Applicants, is on Inspection and Control of collective management organisations and which gives the Executive Director the power to authorize the inspection of the books of accounts and records of a collective management organization. They refer to section 46E (6)(b) and (c) which according to them provides for instances when the powers under sub-section 1 may be exercised.
They contend that vide a letter dated 18 th March 2025 the then CEO of the Interested Party Dr. Ezekiel Mutua stated that there was a leadership stalemate at the Interested Party stemming from the listing of new directors on CR12 in June, 2024. It is also submitted that Dr. Mutua also stated that the prolonged tenure of some former directors had significantly hindered the society’s operations. Further, that the said situation had undermined democracy and good governance principles leaving the interested party unable to serve its members.
The Applicants’ further submission is that this is an admission that the Interested Party is having internal problems which can only be resolved by the intervention of this court through the 1 st Respondent carrying out its statutory mandate as provided under section 5 of the Act which according to the Applicants, sets out the functions of the 1 st respondent Board.
The Applicants further submit that as per the companies search records as of 16 th June 2023 and 14 th August 2024, there are 2 sets of members of the Interested Party, and that the said groups also have each their own bank accounts.
On the legal threshold for the grant of leave to apply, the Applicants rely on the case of Multiline Services Limited v Nairobi City County Government (Judicial Review Application E025 of 2023) [2023] KEHC 23794 (KLR) (Judicial Review) (19 October 2023)(Ruling) where the court is said to have stated that in an application for leave, a court ought not to delve deeply into the parties arguments but only establish whether upon a cursory perusal of the evidence before it ,there is an arguable case.
The Applicants further submit that pursuant to the letter dated 3 rd April 2025 which according to the Applicant is a Notice of the Termination of Dr. Mutua’s employment and the letter dated 4 th April 2025 written by the Interested Party and attached to their supplementary affidavit, Dr. Mutua has no legal capacity to represent the Interested Party before this court. Based on this, the Applicants pray for the court to expunge all pleadings filed by Dr. Mutua from the record.
On the doctrine of exhaustion, the Applicants submit that the issues arising are beyond hem,and that they are within the mandate of the 1 st Respondent to enforce the Act and take charge of the affairs of the Interested Party. Relying on the case of Abidha Nicholus vs. The Attorney General & Others Petition No. E007 of 2023, the Applicants submit that the availability of an alternative remedy does not bar the applicants from seeking judicial review before this court.
They also submit that the Interested Party performs a public duty of collecting royalties on behalf of copyright owners and artists vide a license issued by the 1 st Respondent and as such it cannot hide under the mask of a private company. The Applicants rely on the case of Ernst Young v Capital Markets Authority & Another [2019] eKLR where the court is said to have observed that the Constitution of Kenya, 2010 elevates judicial review from a narrow common law remedy confined to public bodies into a constitutional principle that applies against any person, body or authority exercising judicial or quasi-judicial functions likely to affect rights and freedoms, thereby transcending the public-private dichotomy and anchoring judicial review in constitutional values rather than formalistic common law traditions.
On res judicata , the Applicants submit that the doctrine does not apply as the parties in Milimani High Court Commercial Suits NO. E689 of 2024 and E730 of 2024 are not them. Further, that there is no judgment in the mater, and that if there is any, then the said judgement never determined issues that have been raised before this court. More importantly, that the alleged matters are commercial matters where the Interested Party has been sued.
It is also the Applicants’ submission that regarding Judicial Review No. E178 of 2024 , the doctrine of sub-judice or res judicata does not apply as the parties in the matter do not include them, and that the issues are totally different from the issues in the instant case.
The Interested Party also filed written submissions dated 13 th July 2025 in which it contends that the Applicants are accusing the 1 st Respondent of failing to deem it necessary to report the loss of the said money to the Directorate of Public Prosecutions. However, that the office of the ODPP does not receive complaints from any body other than policing agencies; including the National Police Service, EACC and The Independent Policing Oversight Authority.
It is submitted that of all the sections mentioned in the Application, only section 46E of the Copyright Act exists. The Interested Party submits that a valid legal claim in any court, whether based on common law or statute, must be grounded in a specific legal basis. This, it is argued, means that the Applicant must identify a particular law, statute, or legal principle that the defendant allegedly violated, and which supports their claim for the relief sought. Without this foundation, the Interested Party contends that the claim is ripe for immediate dismissal for want of legal basis, or for being anchored on non-existing law, hence fictitious.
On exhaustion of remedies, it is submitted that Clause 78 of the Interested Party’s Memorandum and Articles of Association provides for an alternative way of dispute resolution between the Interested Party and her members, in respect of among other things; differences on any claim on account of any such breach or alleged breach, or otherwise relating to the premises, or to the Articles or to any statutes affecting the society, or to any of the affairs of the society.
It is submitted that the jurisdiction of this court has therefore been invoked prematurely and that there is no provision which mandatorily places the parties herein before the jurisdiction of this court, as the court of original jurisdiction to handle this matter.
The Interested Party relies on the case of Republic v Were & 2 others; Makhanu & 8 others (Ex parte) (Judicial Review E001 of 2024) [2024] KEHC 8139 (KLR) (4 July 2024) (Ruling) where the court is said to have upheld the need for exhausting other dispute resolution mechanisms available to a party before seeking judicial review redress. Further reliance is also placed on the case of Republic v Kenya School of Law & another; Immaculate (Exparte) (Judicial Review Miscellaneous Application E180 of 2021) [2022] KEHC 3349 (KLR) (Judicial Review) (26 May 2022) (Ruling) on the doctrine of exhaustion.
Further submission is that the issues pending before other courts include the leadership disputes/ wrangles as evidenced in the documents in relation to case numbers Milimani Commercial Suits E698/2024 and Milimani Commercial Suits E730/2024, and the newly filed Employment and Labour Relations Case Number E586 of 2025 in which the alleged dismissal of Dr. Ezekiel Mutua, the deponent of the Interested Party’s affidavits is pending determination.
It is submitted that this court has no jurisdiction to determine similar issues herein on account of the same being live issues before other courts; and that the issues the Applicant seeks determination are to be handled by the Commercial Division of the High Court after the arbitration process and not the Judicial Review Court.
On res sub judice the Interested Party relies on the case of Borbor & 2 others v National Environment Management Authority (Environment and Land Judicial Review Case 2 of 2022) [2022] KEELC 3947 (KLR) (28 July 2022) (Ruling) where the court is said to have laid the parameters for determining if the doctrine of sub judice exists and needs consideration by a court.
It is the Interested Party’s submissions that the Applicants have raised issues mainly revolving around disputes with the Interested Party, including alleged loss of Kshs 56 million, the employment status of Dr. Ezekiel Mutua, leadership wrangles and bank accounts. That they have also included the 2 nd and 3 rd Respondents without explaining their roles or legal basis. The Interested Party submits that the case essentially centers on internal leadership, employment and accountability matters of the Interested Party, which are already before other courts. Further, that any determination by this court would affect all members of the Interested Party and overlap with issues pending elsewhere, making the inclusion of additional parties unnecessary.
The Interested Party also relies on the case of Ware Transport Limited v Third Engineering Bureau of China City Construction Group Co Ltd; Tiba Freight Forwarders Limited (Third party) (Environment & Land Case 252 of 2021) [2024] KEELC 1550 (KLR) (7 March 2024) (Ruling) where the court is said to have cited with approval the case of Thika Min Hydro Co. Ltd v Josphat Karu Ndwiga [2013]eKLR where the court opined that it is the substance of the case, not the way it is framed, that determines whether a matter is sub judice , and this requires examining the pleadings in both suits.
The case of Republic v Registrar of Societies - Kenya & 2 Others Ex-Parte Moses Kirima & 2 Others [2017] eKLR is also relied on where the court is said to have held that although the issues in the two suits were not identical, their resolution ultimately hinged on determining the leadership of the Africa Independent Pentecostal Church of Africa. Further, that even if the court were to nullify the Registrar’s actions, the leadership question would remain unresolved until the other case was decided.
Reliance is also placed on the case of Mistry Jadva Parbat & Co Limited v Kenyatta University & another (Civil Suit E105 of 2021) [2024] KEHC 6179 (KLR) (23 May 2024) (Ruling) cited with approval the case of Attorney General & another ET vs (2012) eKLR where the court is said to have observed that parties cannot evade the doctrine of res judicata by simply introducing new parties or other causes of action in a subsequent suit.
On whether this court can issue substantive orders against an Interested Party in a suit, reliance is placed in the case of Park Road Nursing Home v National Land Commission of Kenya; Nairobi North Healthcare Limited (Interested Party) (Environment & Land Case E010 of 2023) [2023] KEELC 22354 (KLR) (20 December 2023) (Ruling) where the court is said to have observed that it would have been inappropriate to issue an order of temporary injunction against the Interested Party. The Interested Party also relies on the case of Patel & another v United Engineering Supplies Limited; Patel (Interested Party) [2024] KEELC 13276 (KLR) to support this position.
Analysis and Determination
I have considered the chamber summons application, verifying affidavit, statutory statement and annexures thereto, the notice of preliminary objection, affidavits and the detailed rival written submissions by the parties’ counsel. In my view, the following issues arise for determination:
Whether the Preliminary Objection meets the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696;
Whether the Applicants merit the prayer for leave sought and if so if the leave so granted ought to operate as stay.
What orders should the court make, including who is to bear costs of the application, if any.
Whether the Preliminary Objection meets the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. There are sub-questions in this issue and the Court will resolve them.
It is now an engrained principle of law that a preliminary objection must raise a pure point of law which, if upheld, may dispose of the matter without the necessity of ascertaining contested facts. This principle was established in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , where Law JA held that:
“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. ”
Sir Charles Newbold P added that:
“The first matter that a court has to consider is whether what is before it is a preliminary objection as understood in law. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
The Interested Party’s preliminary objection is that the Applicants’ application offends the exhaustion principle, seeks substantive orders against an Interested Party and that it also offends the doctrine of res judicata , sub judice and as such, the same should be dismissed.
Out of the three grounds raised, only the doctrine of exhaustion principle and the doctrines of res judicata and res sub judice properly fall within the ambit of a preliminary objection. These doctrines are jurisdictional issues to be ascertained from the face of the pleadings and the record and would require no further interrogation of evidence. Questions of jurisdiction, including whether a matter is barred by prior proceedings or whether the parties ought first to have approached an alternative statutory forum, are pure points of law that may properly dispose of proceedings at the preliminary stage.
In contrast, the ground that the application seeks substantive orders against an Interested Party does not meet the Mukisa Biscuit (supra) case threshold. Thus, whether relief can or cannot issue against an Interested Party is not a jurisdictional bar discernible on the pleadings alone but a matter that calls for arguments on the propriety of parties, framing of issues and the scope of remedies, all of which involve mixed questions of law and fact. Such issues are best canvassed at the substantive hearing and not through a preliminary objection.
On the doctrine of exhaustion raised by the Interested Party in its Notice of Preliminary Objection and further explained in the written submissions, the Interested Party claims that the Applicants have failed to exhaust the internal mechanisms available to deal with disputes between the Interested Party and its members. Particularly, the Interested Party refers to clause 78 of the Memorandum and Articles of Association which states as follows:
“ARBITRATION
78. Where differences arise between the Society on the one hand and any of the members, their executors, administrators or assigns on the one hand touching the true intent or construction, or the incidents or consequences of these Articles, or the statutes, or touching anything then or thereafter done, executed, omitted, or suffered in pursuance of these Articles, or of the statutes, or touching any breach, or alleged breach of these Articles, or any claim on account of any such breach or alleged breach, or otherwise relating to the premises, or to these Articles or to any statutes affecting the society, or to any of the affairs of the society, every such difference shall be referred to the decision of an arbitrator, to be appointed by the parties in difference, or if they cannot agree upon a single arbitrator to the decision of two arbitrators, of whom one shall be appointed by each of the parties in difference.”
The Applicants in response to the argument by the Interested Party on the alleged failure to exhaust internal mechanisms contend that the dispute is on enforcement of the law by the Respondents against the Interested Party and that it is not a dispute between the Applicants and the Interested Party. That the Interested Party has two factions operating simultaneously, has leadership wrangles and cannot account for Ksh.56,000,000. This, according to the applicants, are not private matters or disputes between the Applicants and the Interested Party. Further, that there is an element of criminal liability on the part of the Interested Party. Similarly, that the issue raised are within the mandate of the 1 st Respondent to enforce the Act and to take charge of the affairs of the Interested Party.
Whereas courts may intervene notwithstanding such clauses where the dispute involves public law elements or allegations of procedural impropriety in administrative actions, the primary nature of the dispute must guide the Court.
The Court of Appeal in the case of Nyaoga v Chairman Kisii County Assembly & 3 others [2023] KECA 1540 (KLR) observed that:
“19. The main issues that would dispose of this appeal is whether or not the appellant had exhausted all the available alternative remedies before invoking the court’s jurisdiction; whether or not trial court had jurisdiction; and the place of the doctrine of exhaustion.
20.The doctrine of exhaustion of remedies was created by courts in order to promote an efficient justice system and autonomous administrative state. It is a principle that requires parties to exhaust all available local administrative remedies before seeking redress in a court of law on a constitutional issue. An aggrieved party must first pursue all avenues of relief found within the administrative agency responsible for the issue at hand. The reason for this is to allow administrative agencies to address, and to potentially resolve the issue before escalating the same to the courts.
21.Indeed, this Court in Mutanga Tea & Coffee Company Ltd vs. Shikara Limited & Another [2015] eKLR cited with approval the case of Speaker of the National Assembly vs. Karume [2008] 1 KLR 425 where the court stated: “where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an act of parliament that procedure should be strictly followed.
22.This Court in Geoffrey Muthinja & Another vs. Samuel Muguna Henry & 1756 Others (2015) eKLR gave credence to the view that it is essential to utilize non-judicial methods of dispute resolution before turning to the courts. Courts should not be the initial choice for resolving conflicts within organizations, as this may lead to unnecessary legal battles.”
Equally, in the case of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR) the court observed thus:
“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency''s action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
In Nyaoga v Chairman Kisii County Assembly & 3 others supra the Court observed as follows:
“That having been said, this Court also needs to look at the flip side and discuss the exception to the doctrine of exhaustion before coming to our final conclusion. These exceptions provide circumstances where an individual may bypass the exhaustion requirement and directly seek redress from court. In Chief Justice and President of the Supreme Court of Kenya
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This ruling determines the two applicants’ Chamber Summons dated 7 th May 2025 and filed in court on the even date. The application is brought under Order 53 Rules 1,2,3 and 4 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and the relevant provisions of the Law Reform Act.
The applicants seek leave of this Court to apply for an order of Mandamus to compel the respondents to enforce provisions of Sections 5A,5B,5G,46E, 46E(4A-D), 46E(5),46F(1A,1B,1E,1G,1i) of the Copyright Act, CAP 130 Laws of Kenya.
The applicants also pray that the leave is granted do operate as a stay of the Interested Party’s collection of royalties from users of copyrighted works for the musicians and artists pending the hearing and final determination of these proceedings.
The Applicants also seek that in compliance with prayer 3 of the Chamber Summons, the 1 st Respondent does set up an alternative independent payment mechanism for the collection of royalties within 30 days.
The application is verified by the affidavit of Justus Ngemu and Saul Eskuri jointly sworn on 7 th May 2025.
The Applicants’ case is that they are musicians, artists and copyright holders of original works titled “ Siasa mbaya maisha mbaya, Kilio kwa mungu, Roda and uchie” respectively.
The Applicants also state that they are bona fide members of the Music Copyright Society of Kenya, member Nos. 432 and 6935 respectively. That Section 5 of the Copyrights Act provides for the Respondent’s functions.
It is the applicants’ further case that on 2 nd February 2024, the 1 st Respondent revealed that the Interested Party could not sufficiently account for Ksh.56,000,000 or thereabouts received as royalties for artists and musicians.
That upon the said revelation, the 1 st Respondent forwarded the said letter to the office of the Ethics & Anti-Corruption Commissions for investigations to be undertaken.
The Applicants state that to date, no action has been taken against the members of the Interested Party who had perpetrated the alleged loss of Ksh. 56,000,000. Further, that the 1 st Respondent deemed it not necessary or fit to report the said loss of funds to the Office of Director of Public Prosecutions under Section 39 of the Copyright Act, Cap 130 Laws of Kenya.
According to the Applicants, on 18 th March 2025, the Interested Party acknowledged that it was embroiled in leadership wrangles and has of today two warring camps within themselves each purporting to represent the affairs of the Applicants and other musicians in the country.
The Applicants state that the said two camps of the Interested Party have now each set up bank accounts and pay bill accounts for the collection of revenue from the music users in Kenya and worldwide with no accountability mechanics from the Respondents.
That the Respondents have the statutory mandate to reign over the affairs of the Interested Party but have deliberately ignored and or neglected to undertake their statutory duties to enforce the provisions of the Copyright Act.
Further, it is asserted that the Interested Party’s actions are self-centered to attain their own financial and economic gains to the disadvantage of the real owners of the copyrights who are the Applicants and other self-deserving Kenyan artists who have no other source of income apart from their artistic work and royalty collections.
They contend that unless this court intervenes and grants the orders sought, the Interested Party shall continue to mint millions reaping where they never sowed while the applicants and other wallop in abject poverty.
It is also the applicants’ case that since the Respondents have failed to perform their statutory duty, it is only this Court which can come to the aid of the Applicants and demand accountability from the Respondents and the Interested Party herein.
The Applicants claim that they have suffered loss of economic right and damage due to the actions on the part of the Respondents and the Interested party. That non-compliance with Sections 5A, 5B, 5G, 46E, 46E[4A-D] 46E[5], 46F[1A,1B,1E,1G,1I] of the Copyright Act by the Respondents is a breach of the constitutional and statutory duty on the part of the Respondents and the interested party and their servants, employees and agents.
The Applicants’ further averment is that they are apprehensive that unless the court intervenes and compels the Respondents and Interested Party to comply with the law, the applicants’ intellectual rights will continue to be infringed without good cause, an act which will irredeemably occasion grievous harm to both the Applicants.
The Interested Party’s Response
Only the Interested Party filed a response to the application through a preliminary objection dated 26 th May 2025 and a replying affidavit sworn on 27 th May 2025 by Dr. Ezekiel Mutua who introduces himself as the Chief Executive Officer of the Interested Party.
The preliminary objection raises three grounds which are that the Application offends the exhaustion principle available to the Applicants and the Interested Party; that it seeks for substantive Orders against an Interested Party and that it offends the principle of res judicata and res sub-judice.
In the replying affidavit, the Interested Party depones that most of the prayers sought are not attainable for the reason that the subject Statute under which the same prayers are sought does not have Sections 5A, 5B and, 5G and also Sections 46E (4A-D), and also that Sections 46F (1A, 1B, 1E, 1G and 1I) are not found in the Copyright Act Chapter 130 Laws of Kenya hence strange legal provisions have been relied on.
The Interested Party states that leave so granted to stay the Interested Party’s collection of royalties for her members, which is a statutory obligation for the Interested Party is a substantive prayer.
According to the Interested Party, the Applicants seek the court to direct advancement of alleged investigations which are in the hands of the Ethics and Anti-Corruption Commission of Kenya, which is an independent Constitutional body that takes no directions from any quarters.
Further, that there are numerous suits including High Court Commercial suit Nos. E698 and E730 both of 2024, filed by members against the Interested Party on the same subject matter and issues.
The Interested Party reiterates that the suit herein offends the exhaustion principle and that the Applicants have not exploited the internal mechanism dispute resolution structures established by the Interested Party’s Memorandum and Articles of Association, and also that the orders sought are not attainable because the Applicant seeks and/or intends to seek for substantive orders against the Interested Party in their Substantive Judicial review case, which mechanism and approach is strange in law and procedure.
The Interested Party also filed a further affidavit sworn on 12 th July 2025 by Dr. Ezekiel Mutua.
In the affidavit, it is deposed that it is misleading for the Applicants to claim that Dr. Ezekiel Mutua has ceased to be the Interested Party’s Chief Executive Officer. That Dr. Mutua has never been served with the alleged public notice and alleged termination letter dated 3 rd April, 2025 signed by one Lazarus Muli, in the alleged capacity of him being the chairperson of the Interested Party’s Board of Directors save for the termination letter having been in different courts by persons connected to the said Lazarus Muli in one way or another.
That Lazarus Muli is not one of the Board members of the Interested Party and was not a member at the time of signing the letter dated 3 rd April, 2025 and as such, that the letter is a forgery.
Dr. Mutua states that the issue of his employment and the alleged termination portrayed by the Applicant herein vide the impugned alleged termination letter dated 3 rd April, 2025 is live, pending determination before a different court, same cases filed by the same Lazarus Muli through his proxies. Further, that this Court has no jurisdiction to determine the validity of the alleged termination, which issue is being subtly introduced here to mislead the court. The deponent avers in deposition that the employment dispute alluded to hereinabove is a reserve of the Employment and Labour Relations Court.
Submissions
The Applicants filed written submissions dated 8 th July 2025. While relying on Section 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules of 2013 and the case of Muruatetu & another vs. Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae (Petition 15 & 16 of 2015 (Consolidated) [2016] KESC 12 (KLR) (Civ) (28 January 2016) (Ruling ), the applicants submit that the Interested Party has a stake in the outcome of the matter at hand.
It is argued that if this court was to render a decision reasserting that the Respondents have a statutory duty to enforce the Copyrights Act, then it would require that the Interested Party does comply with the said directive.
The Applicants also argue that the Interested Party can only comply with the statute if it is a party to the current court proceedings and as such is a proper party and necessary party to these proceedings. It is further submitted that as the orders issued will have an impact on the Interested Party, the latter has a right to be given a fair hearing pursuant to the rules of natural justice.
It is also submitted that the Interested Party is a necessary party as no other entity has been tasked to account for the loss of the Ksh. 56,000,000/-. Further, that the letters dated 26 th June 2025 issued by the 1 st Respondent, 28 th November 2024 issued by the Interested Party and 30 th August 2024 issued by the 1 st Respondent are a confirmation that all is not well with the Interested Party.
The Applicants refer to Section 46E (1) of the Copyright Act which according to the Applicants, is on Inspection and Control of collective management organisations and which gives the Executive Director the power to authorize the inspection of the books of accounts and records of a collective management organization. They refer to section 46E (6)(b) and (c) which according to them provides for instances when the powers under sub-section 1 may be exercised.
They contend that vide a letter dated 18 th March 2025 the then CEO of the Interested Party Dr. Ezekiel Mutua stated that there was a leadership stalemate at the Interested Party stemming from the listing of new directors on CR12 in June, 2024. It is also submitted that Dr. Mutua also stated that the prolonged tenure of some former directors had significantly hindered the society’s operations. Further, that the said situation had undermined democracy and good governance principles leaving the interested party unable to serve its members.
The Applicants’ further submission is that this is an admission that the Interested Party is having internal problems which can only be resolved by the intervention of this court through the 1 st Respondent carrying out its statutory mandate as provided under section 5 of the Act which according to the Applicants, sets out the functions of the 1 st respondent Board.
The Applicants further submit that as per the companies search records as of 16 th June 2023 and 14 th August 2024, there are 2 sets of members of the Interested Party, and that the said groups also have each their own bank accounts.
On the legal threshold for the grant of leave to apply, the Applicants rely on the case of Multiline Services Limited v Nairobi City County Government (Judicial Review Application E025 of 2023) [2023] KEHC 23794 (KLR) (Judicial Review) (19 October 2023)(Ruling) where the court is said to have stated that in an application for leave, a court ought not to delve deeply into the parties arguments but only establish whether upon a cursory perusal of the evidence before it ,there is an arguable case.
The Applicants further submit that pursuant to the letter dated 3 rd April 2025 which according to the Applicant is a Notice of the Termination of Dr. Mutua’s employment and the letter dated 4 th April 2025 written by the Interested Party and attached to their supplementary affidavit, Dr. Mutua has no legal capacity to represent the Interested Party before this court. Based on this, the Applicants pray for the court to expunge all pleadings filed by Dr. Mutua from the record.
On the doctrine of exhaustion, the Applicants submit that the issues arising are beyond hem,and that they are within the mandate of the 1 st Respondent to enforce the Act and take charge of the affairs of the Interested Party. Relying on the case of Abidha Nicholus vs. The Attorney General & Others Petition No. E007 of 2023, the Applicants submit that the availability of an alternative remedy does not bar the applicants from seeking judicial review before this court.
They also submit that the Interested Party performs a public duty of collecting royalties on behalf of copyright owners and artists vide a license issued by the 1 st Respondent and as such it cannot hide under the mask of a private company. The Applicants rely on the case of Ernst Young v Capital Markets Authority & Another [2019] eKLR where the court is said to have observed that the Constitution of Kenya, 2010 elevates judicial review from a narrow common law remedy confined to public bodies into a constitutional principle that applies against any person, body or authority exercising judicial or quasi-judicial functions likely to affect rights and freedoms, thereby transcending the public-private dichotomy and anchoring judicial review in constitutional values rather than formalistic common law traditions.
On res judicata , the Applicants submit that the doctrine does not apply as the parties in Milimani High Court Commercial Suits NO. E689 of 2024 and E730 of 2024 are not them. Further, that there is no judgment in the mater, and that if there is any, then the said judgement never determined issues that have been raised before this court. More importantly, that the alleged matters are commercial matters where the Interested Party has been sued.
It is also the Applicants’ submission that regarding Judicial Review No. E178 of 2024 , the doctrine of sub-judice or res judicata does not apply as the parties in the matter do not include them, and that the issues are totally different from the issues in the instant case.
The Interested Party also filed written submissions dated 13 th July 2025 in which it contends that the Applicants are accusing the 1 st Respondent of failing to deem it necessary to report the loss of the said money to the Directorate of Public Prosecutions. However, that the office of the ODPP does not receive complaints from any body other than policing agencies; including the National Police Service, EACC and The Independent Policing Oversight Authority.
It is submitted that of all the sections mentioned in the Application, only section 46E of the Copyright Act exists. The Interested Party submits that a valid legal claim in any court, whether based on common law or statute, must be grounded in a specific legal basis. This, it is argued, means that the Applicant must identify a particular law, statute, or legal principle that the defendant allegedly violated, and which supports their claim for the relief sought. Without this foundation, the Interested Party contends that the claim is ripe for immediate dismissal for want of legal basis, or for being anchored on non-existing law, hence fictitious.
On exhaustion of remedies, it is submitted that Clause 78 of the Interested Party’s Memorandum and Articles of Association provides for an alternative way of dispute resolution between the Interested Party and her members, in respect of among other things; differences on any claim on account of any such breach or alleged breach, or otherwise relating to the premises, or to the Articles or to any statutes affecting the society, or to any of the affairs of the society.
It is submitted that the jurisdiction of this court has therefore been invoked prematurely and that there is no provision which mandatorily places the parties herein before the jurisdiction of this court, as the court of original jurisdiction to handle this matter.
The Interested Party relies on the case of Republic v Were & 2 others; Makhanu & 8 others (Ex parte) (Judicial Review E001 of 2024) [2024] KEHC 8139 (KLR) (4 July 2024) (Ruling) where the court is said to have upheld the need for exhausting other dispute resolution mechanisms available to a party before seeking judicial review redress. Further reliance is also placed on the case of Republic v Kenya School of Law & another; Immaculate (Exparte) (Judicial Review Miscellaneous Application E180 of 2021) [2022] KEHC 3349 (KLR) (Judicial Review) (26 May 2022) (Ruling) on the doctrine of exhaustion.
Further submission is that the issues pending before other courts include the leadership disputes/ wrangles as evidenced in the documents in relation to case numbers Milimani Commercial Suits E698/2024 and Milimani Commercial Suits E730/2024, and the newly filed Employment and Labour Relations Case Number E586 of 2025 in which the alleged dismissal of Dr. Ezekiel Mutua, the deponent of the Interested Party’s affidavits is pending determination.
It is submitted that this court has no jurisdiction to determine similar issues herein on account of the same being live issues before other courts; and that the issues the Applicant seeks determination are to be handled by the Commercial Division of the High Court after the arbitration process and not the Judicial Review Court.
On res sub judice the Interested Party relies on the case of Borbor & 2 others v National Environment Management Authority (Environment and Land Judicial Review Case 2 of 2022) [2022] KEELC 3947 (KLR) (28 July 2022) (Ruling) where the court is said to have laid the parameters for determining if the doctrine of sub judice exists and needs consideration by a court.
It is the Interested Party’s submissions that the Applicants have raised issues mainly revolving around disputes with the Interested Party, including alleged loss of Kshs 56 million, the employment status of Dr. Ezekiel Mutua, leadership wrangles and bank accounts. That they have also included the 2 nd and 3 rd Respondents without explaining their roles or legal basis. The Interested Party submits that the case essentially centers on internal leadership, employment and accountability matters of the Interested Party, which are already before other courts. Further, that any determination by this court would affect all members of the Interested Party and overlap with issues pending elsewhere, making the inclusion of additional parties unnecessary.
The Interested Party also relies on the case of Ware Transport Limited v Third Engineering Bureau of China City Construction Group Co Ltd; Tiba Freight Forwarders Limited (Third party) (Environment & Land Case 252 of 2021) [2024] KEELC 1550 (KLR) (7 March 2024) (Ruling) where the court is said to have cited with approval the case of Thika Min Hydro Co. Ltd v Josphat Karu Ndwiga [2013]eKLR where the court opined that it is the substance of the case, not the way it is framed, that determines whether a matter is sub judice , and this requires examining the pleadings in both suits.
The case of Republic v Registrar of Societies - Kenya & 2 Others Ex-Parte Moses Kirima & 2 Others [2017] eKLR is also relied on where the court is said to have held that although the issues in the two suits were not identical, their resolution ultimately hinged on determining the leadership of the Africa Independent Pentecostal Church of Africa. Further, that even if the court were to nullify the Registrar’s actions, the leadership question would remain unresolved until the other case was decided.
Reliance is also placed on the case of Mistry Jadva Parbat & Co Limited v Kenyatta University & another (Civil Suit E105 of 2021) [2024] KEHC 6179 (KLR) (23 May 2024) (Ruling) cited with approval the case of Attorney General & another ET vs (2012) eKLR where the court is said to have observed that parties cannot evade the doctrine of res judicata by simply introducing new parties or other causes of action in a subsequent suit.
On whether this court can issue substantive orders against an Interested Party in a suit, reliance is placed in the case of Park Road Nursing Home v National Land Commission of Kenya; Nairobi North Healthcare Limited (Interested Party) (Environment & Land Case E010 of 2023) [2023] KEELC 22354 (KLR) (20 December 2023) (Ruling) where the court is said to have observed that it would have been inappropriate to issue an order of temporary injunction against the Interested Party. The Interested Party also relies on the case of Patel & another v United Engineering Supplies Limited; Patel (Interested Party) [2024] KEELC 13276 (KLR) to support this position.
Analysis and Determination
I have considered the chamber summons application, verifying affidavit, statutory statement and annexures thereto, the notice of preliminary objection, affidavits and the detailed rival written submissions by the parties’ counsel. In my view, the following issues arise for determination:
Whether the Preliminary Objection meets the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696;
Whether the Applicants merit the prayer for leave sought and if so if the leave so granted ought to operate as stay.
What orders should the court make, including who is to bear costs of the application, if any.
Whether the Preliminary Objection meets the threshold in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. There are sub-questions in this issue and the Court will resolve them.
It is now an engrained principle of law that a preliminary objection must raise a pure point of law which, if upheld, may dispose of the matter without the necessity of ascertaining contested facts. This principle was established in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , where Law JA held that:
“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. ”
Sir Charles Newbold P added that:
“The first matter that a court has to consider is whether what is before it is a preliminary objection as understood in law. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
The Interested Party’s preliminary objection is that the Applicants’ application offends the exhaustion principle, seeks substantive orders against an Interested Party and that it also offends the doctrine of res judicata , sub judice and as such, the same should be dismissed.
Out of the three grounds raised, only the doctrine of exhaustion principle and the doctrines of res judicata and res sub judice properly fall within the ambit of a preliminary objection. These doctrines are jurisdictional issues to be ascertained from the face of the pleadings and the record and would require no further interrogation of evidence. Questions of jurisdiction, including whether a matter is barred by prior proceedings or whether the parties ought first to have approached an alternative statutory forum, are pure points of law that may properly dispose of proceedings at the preliminary stage.
In contrast, the ground that the application seeks substantive orders against an Interested Party does not meet the Mukisa Biscuit (supra) case threshold. Thus, whether relief can or cannot issue against an Interested Party is not a jurisdictional bar discernible on the pleadings alone but a matter that calls for arguments on the propriety of parties, framing of issues and the scope of remedies, all of which involve mixed questions of law and fact. Such issues are best canvassed at the substantive hearing and not through a preliminary objection.
On the doctrine of exhaustion raised by the Interested Party in its Notice of Preliminary Objection and further explained in the written submissions, the Interested Party claims that the Applicants have failed to exhaust the internal mechanisms available to deal with disputes between the Interested Party and its members. Particularly, the Interested Party refers to clause 78 of the Memorandum and Articles of Association which states as follows:
“ARBITRATION
78. Where differences arise between the Society on the one hand and any of the members, their executors, administrators or assigns on the one hand touching the true intent or construction, or the incidents or consequences of these Articles, or the statutes, or touching anything then or thereafter done, executed, omitted, or suffered in pursuance of these Articles, or of the statutes, or touching any breach, or alleged breach of these Articles, or any claim on account of any such breach or alleged breach, or otherwise relating to the premises, or to these Articles or to any statutes affecting the society, or to any of the affairs of the society, every such difference shall be referred to the decision of an arbitrator, to be appointed by the parties in difference, or if they cannot agree upon a single arbitrator to the decision of two arbitrators, of whom one shall be appointed by each of the parties in difference.”
The Applicants in response to the argument by the Interested Party on the alleged failure to exhaust internal mechanisms contend that the dispute is on enforcement of the law by the Respondents against the Interested Party and that it is not a dispute between the Applicants and the Interested Party. That the Interested Party has two factions operating simultaneously, has leadership wrangles and cannot account for Ksh.56,000,000. This, according to the applicants, are not private matters or disputes between the Applicants and the Interested Party. Further, that there is an element of criminal liability on the part of the Interested Party. Similarly, that the issue raised are within the mandate of the 1 st Respondent to enforce the Act and to take charge of the affairs of the Interested Party.
Whereas courts may intervene notwithstanding such clauses where the dispute involves public law elements or allegations of procedural impropriety in administrative actions, the primary nature of the dispute must guide the Court.
The Court of Appeal in the case of Nyaoga v Chairman Kisii County Assembly & 3 others [2023] KECA 1540 (KLR) observed that:
“19. The main issues that would dispose of this appeal is whether or not the appellant had exhausted all the available alternative remedies before invoking the court’s jurisdiction; whether or not trial court had jurisdiction; and the place of the doctrine of exhaustion.
20.The doctrine of exhaustion of remedies was created by courts in order to promote an efficient justice system and autonomous administrative state. It is a principle that requires parties to exhaust all available local administrative remedies before seeking redress in a court of law on a constitutional issue. An aggrieved party must first pursue all avenues of relief found within the administrative agency responsible for the issue at hand. The reason for this is to allow administrative agencies to address, and to potentially resolve the issue before escalating the same to the courts.
21.Indeed, this Court in Mutanga Tea & Coffee Company Ltd vs. Shikara Limited & Another [2015] eKLR cited with approval the case of Speaker of the National Assembly vs. Karume [2008] 1 KLR 425 where the court stated: “where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an act of parliament that procedure should be strictly followed.
22.This Court in Geoffrey Muthinja & Another vs. Samuel Muguna Henry & 1756 Others (2015) eKLR gave credence to the view that it is essential to utilize non-judicial methods of dispute resolution before turning to the courts. Courts should not be the initial choice for resolving conflicts within organizations, as this may lead to unnecessary legal battles.”
Equally, in the case of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR) the court observed thus:
“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency''s action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
In Nyaoga v Chairman Kisii County Assembly & 3 others supra the Court observed as follows:
“That having been said, this Court also needs to look at the flip side and discuss the exception to the doctrine of exhaustion before coming to our final conclusion. These exceptions provide circumstances where an individual may bypass the exhaustion requirement and directly seek redress from court. In Chief Justice and President of the Supreme Court of Kenya
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