1. The plaintiff vide a plaint dated 6th December 2021 instituted this suit against the defendant seeking judgment against it for a permanent injunction restraining the defendant, its agents or assigns from using her voice-over phrases - “Samahani mteja wa nambari uliyopiga hapatikani kwa sasa, tafadhali jaribu tena baadaye”, “Nasikitika hatuwezi kukamilisha nambari uliyopiga, tafadhali angalia namba alafu upige tena” and “Samahani nambari uliyopiga haitumiki kwa sasa.”, on its mobile telephone platform or any other platform, until a compensation agreement is reached. The plaintiff also seeks judgment for compensation for the defendant’s use of the said voice-overs from the year 2000 to the date of filing this suit, calculated at Kshs.2,000,000/= per month, exclusive of taxes and in the alternative, damages for the unauthorized usage as pleaded, and costs of the suit.
2. The plaintiff’s case is that around the year 2000, she recorded several voice-overs with Crawford Productions, namely: “Samahani mteja wa nambari uliyopiga hapatikani kwa sasa, tafadhali jaribu tena baadaye,” “Nasikitika hatuwezi kukamilisha nambari uliyopiga, tafadhali angalia namba alafu upige tena,” and “Samahani nambari uliyopiga haitumiki kwa sasa.”
3. She stated that the recordings were part of an audition involving sixteen contestants and that she was informed that the winning voice-over would be approved by the defendant’s management, after which the parties would negotiate a contract for compensation.
4. The plaintiff claimed that her voice-overs were selected and approved, but without her consent and without any agreement on compensation, the defendant begun using the voice-overs on its mobile telephone platform for commercial and marketing purposes and continues to do so. She asserted that despite her efforts to pursue payment, the defendant evaded the issue while continuing to benefit commercially from her voice-overs. It was stated by the plaintiff that she was subsequently employed by the defendant from September 2001 to August 2020, during which time attempts to raise the issue of compensation were met with threats of termination, causing her to remain silent due to fear of losing her job. She further stated that since the year 2000, the defendant has continued to use her voice-overs across a subscriber base that as at December 2020, included approximately 38 Million prepaid and 1.08 Million post-paid users.
5. The plaintiff averred that for the financial year ending March 2021, the defendant recorded voice revenues of Kshs.82.5 Billion and asserted that her voice-overs formed part of the inputs contributing to such revenue over the years. She further averred that she declined other commercial recording opportunities at the defendant’s request in order to preserve the uniqueness of the voice-overs to her detriment, and to the defendant’s benefit.
6. The plaintiff contended that even under industry practice, the defendant could only lawfully use the voice-overs for an initial period of six (6) months without obtaining her further consent, but in this case, the defendant has continuously reused the recordings for over twenty years without her authority. She claims compensation for inter alia, the use of the voice-overs over the last twenty-one (21) years and periodic payments for continued use, based on the profits generated by the defendant’s mobile platform.
7. In opposition to the plaintiff’s suit, the defendant filed a defence dated 7th December 2022 denying all the averments in the plaintiff’s plaint, save that the plaintiff was employed by it from 17th September 2001 until her retirement on 16th July 2020, but asserted that at no time during the plaintiff’s employment did she raise any issue or demand relating to the alleged voice-overs. It claimed that the plaintiff’s personnel file contains no record of any such complaint. The defendant contended that the plaintiff’s plaint discloses no cause of action for reasons that the plaintiff’s claim is statute-barred under Section 4(1)(a) of the Limitation of Actions Act, as any contractual claim arising in 2000 ought to have been filed by 2006, and that it is similarly time-barred under Section 4(2) if the plaintiff’s cause of action is founded in tort.
8. The defendant averred that this suit is defeated by laches noting that the plaintiff delayed for over 22 years before filing a suit against it and that such delay prejudices the defendant’s constitutional right to a fair hearing under Article 50(1) of the Constitution, because it no longer has any witnesses or documentary evidence relating to the alleged events of the year 2000. It further averred that Crawford Productions and not the defendant, was the party that allegedly contracted the plaintiff to record the voice-overs, therefore Crawford Productions was the proper party to be sued. The defendant urged that this suit should be struck out, and asserted that the phrases in issue are fragmentary and common expressions incapable of copyright protection. It further averred that the alleged phrases lack originality and are widely used by other telecommunication providers, and that copyright in sound recordings vests in the producer.
9. The defendant claimed that the plaintiff produced no evidence that she was the producer of the recordings, and in any event, the recordings were commissioned by Crawford Productions, in which case, copyright would vest in Crawford. It contended that if the recordings were made in the course of the plaintiff’s employment, copyright would vest in the defendant pursuant to the Copyright Act. The defendant further contended that the plaintiff had not demonstrated that she solely created the recordings using her own resources, rendering her copyright claim untenable. In the circumstances, the defendant maintained that the plaintiff is not entitled to any of the reliefs sought and urged this Court to dismiss this suit with costs.
10. This matter proceeded to hearing where both the plaintiff and the defendant called one witness each, in support of their cases.
PLAINTIFF’S CASE.
11. Ms Margaret Mkacharo Wazome (the plaintiff herein) testified as PW1. She adopted her witness statement dated 16th November 2021 as her evidence in chief and produced the documents contained in her list and bundle of documents dated 6th December 2021 as plaintiff exhibits No. 1 to 5. She testified that in 2000, she recorded several voice-overs with Crawford Productions, including standard Kiswahili call-failure and call-termination messages. She stated that the recordings followed an audition involving about fifteen contestants and that the producer, together with the defendant’s representative, Ms Elizabeth Yogo, informed her that the selected voice-over would be submitted to the defendant’s top management for approval, after which payment terms for its commercial use would be negotiated.
12. PW1 stated that her voice-overs won the audition and were approved by the defendant, but the defendant proceeded to use the recordings on its mobile platform without her consent and without agreeing on payment. She testified that her attempts to pursue compensation were unsuccessful, as the defendant repeatedly asked her to wait while continuing to profit from the recordings. She testified that she later joined the defendant as an employee and worked there until her retirement on 30th August 2020. She further stated that raising the issue of compensation during her employment with the defendant exposed her to threats of termination, discouraging her from pursuing the matter further. She maintained that the defendant has used the recordings continuously since 2000 across its large subscriber base, which by December 2020 included about 38 Million prepaid and 1.08 Million post-paid users.
13. Ms Wazome referred to the defendant’s financial results for the year ending March 2021, noting that voice revenue totaled Kshs.82.5 Billion. She asserted that her voice-overs contributed to this revenue over the years because customers begin paying for the service once a call is initiated, and if the call does not go through, the defendant communicates with them using her recordings. She further testified that she turned down other commercial engagements at the defendant’s request to preserve the distinctiveness of the voice-overs, a decision she says benefited the defendant but disadvantaged her. She added that based on standard industry practice, the defendant would only have been entitled to use the recordings for an initial six-month period, after which further use would have required her consent. Ms Wazome maintained that the defendant has continued to use the voice-overs for more than twenty-one (21) years without authorization. She therefore sought the reliefs set out in the plaint.
14. She referred to the defendant’s financial results for the year ending March 2021 and stated that voice revenue amounted to Kshs.82.5 Billion. She further stated that her voice-overs formed part of the inputs contributing to such revenue over the years, since the defendant’s customers pay for the services when they initiate a call and they are unable to reach the person whom they are calling, the customers are communicated to by the defendant using the voice-overs. She reiterated that even under standard industry practice, the defendant would only have been entitled to use the recordings for an initial six-month period, after which her consent would have been required for continued use. Ms Wazome stated that the defendant has reused the voice-overs for over twenty-one (21) years without her authority. She prayed for the reliefs sought in the plaint.
15. During cross-examination, Ms Wazome explained that she recorded the voice-overs in 1993 with Crawford Productions Limited, although the defendant begun using them much later. She stated that she had no formal contract with Crawford Productions Limited and that Andrew Crawford selected her based on previous voice-over work she had done for other companies. She testified that she received no payment from Andrew Crawford Productions Limited apart from a modest fee of Kshs.10,000/=. PW1 maintained that the voice-overs were intended to run for only six (6) months and emphasized that she was never informed that they would later be used by an emerging telecommunications company.
16. Ms Wazome testified that the defendant was incorporated in 1999 and commenced operations in 2000. She stated that she merely recorded the prepared voice-over lines and did not produce them. Although she alleged that the defendant worked with Andrew Crawford Productions Limited, she admitted that she had no evidence to support the said claim. She asserted that during her employment, she discussed compensation for the use of her voice-overs with some of the defendant’s Directors and its former CEO, the late Bob Collymore, but no action was taken. PW1 acknowledged the existence of the defendant’s brand and legal department but said she did not approach them due to fear of victimization.
17. She also confirmed that her retirement letter dated 16th July 2020 indicated that she had been paid all her terminal dues, and that she never formally wrote to the defendant to make a claim regarding the voice-overs. Nonetheless, she maintained that the voice-overs continue to generate income for the defendant through customer use of its services. Ms Wazome stated that customer billing starts as soon as a call is made, and if the call does not go through, the voice-overs are played. She however acknowledged that customers are not charged for the voice-overs themselves. She claimed entitlement to Kshs.2,000,000/= per month based on the frequency of use and the size of the defendant’s customer database, though she admitted that she did not present any evidence of the database or usage. She also offered to re-enact the voice-overs in Court to demonstrate that the recorded voice was hers.
18. In re-examination, PW1 stated that the defendant is a public company and that its customer database can therefore be accessed publicly. She emphasized that the defendant has neither disputed that she recorded the voice-overs, nor has it denied that its representative was present during the recording, and that Ms Elizabeth Yogo was its employee. She clarified that her retirement letter did not address the voice-overs, as producing them was not part of her employment duties with the defendant.
DEFENDANT’S CASE.
19. Mr. Daniel Mwenja Ndaba, the defendant’s Senior Manager in charge of litigation testified as DW1. He adopted his witness statement dated 14th December 2022 as his evidence in chief and produced the documents contained in the defendant’s list and bundle of documents dated 7th December 2022 as plaintiff exhibits No. 1 to 7. He testified that the plaintiff was employed by the defendant as a customer service representative from 17th September 2001 until her retirement on 16th July 2020. He stated that a review of her personnel file revealed no demand notices or complaints regarding the voice-overs during her entire period of employment.
20. He testified that there is an unexplained delay of over 22 years in bringing the claim herein and added that the defendant no longer has witnesses or documentation relating to the production of the alleged recordings. DW1 contended that the voice-overs do not generate revenue and merely convey functional or factual information, similar to phrases used by other telecommunications providers such as Airtel. He stated that a billing event occurs when a voice call is connected to another and a call is picked, and if a call is not picked, it is not a billing event. He further stated that as outlined in the defendant’s defence, the plaintiff’s claim lacks a legal foundation and has not been proved, thus it should be dismissed with costs.
21. During cross-examination, Mr. Ndaba acknowledged that the impugned voice-overs are still in use by the defendant and that no evidence was produced to show that they were recorded by anyone else other than the plaintiff. He explained that the defendant earns revenue primarily from call billing, as well as from SMS, data services and M-Pesa services. He added that advertising across various platforms boosts the defendant’s income by attracting more customers, but emphasized that the defendant’s revenue is derived from these direct services.
22. DW1 reiterated that the voice-overs do not generate income for the defendant, describing them as purely functional messages used to notify customers when the person’s they are calling are unavailable. In his assessment, the voice-overs do not possess commercial value. Mr. Ndaba testified that if the voice-overs and sound recordings were made in the course of the plaintiff’s employment, copyright would vest in the defendant under the Copyright Act. He noted that as a publicly listed company, the defendant’s financial accounts are publicly accessible.
23. In re-examination, Mr. Ndaba stated that he was not certain if the plaintiff’s voice-overs were still being used by the defendant. He reiterated that the voice-overs do not generate revenue, describing them as purely informational and lacking commercial value.
24. Upon the close of the plaintiff’s and the defendant’s cases, the Court directed the parties to file written submissions. The plaintiff’s submissions were filed on 5th February 2024 by the law firm of Otieno Okeyo & Company Advocates, while the defendant’s submissions were filed on 18th March 2025 by the law firm of Kaplan & Stratton Advocates.
25. Mr. Okeyo, learned Counsel for the plaintiff submitted that it is not contested that the impugned voice-overs are recordings of the plaintiff’s voice, that the plaintiff was not an employee of the defendant at the time of the recordings, that the defendant has used and continues to use the recordings on its mobile telephony platform, that the defendant is a profit-making enterprise, that it holds no contractual rights authorizing such use and that it has never paid for the voice-overs. Counsel asserted that the voice-overs serve an essential commercial function in maintaining customer experience and supporting network efficiency, thus contributing indirectly to the defendant’s revenue. He argued that the defendant’s denial of economic value is inconsistent with its continued use of the recordings for 24 years.
26. On limitation of time, Mr. Okeyo referred to the case of John Mugalla Mwaduma v Braeburn Schools Ltd t/a Braeburn International School Mombasa [2015] KEELRC 252 (KLR), and submitted that the cause of action herein constitutes a continuous breach, given the defendant’s uninterrupted and ongoing use of the recordings. He contended that the defence under Section 4(1) of the Limitation of Actions Act is unavailable in the absence of any pleaded or proved contract relating to the voice-overs.
27. Regarding copyright, Counsel contended that the voice-overs are protected sound recordings under the Copyright Act and that as the owner of the recorded voice, the plaintiff holds the rights therein. Mr. Okeyo stated that the defendant neither demonstrated any rights acquired from Crawford Productions Limited nor joined Crawford as a party to this suit. He relied on comparative jurisprudence, including the South African Court of Appeal case of Vodacom (PTY) Ltd v Kenneth Nkosana Makate & Shammel Joosub No (Case No. 410/2022) [2024] ZASCA 14 (06 February 2024) and the case of Mider v Ford Motor Co. 849F.2d 460 (9 Cir.1988), a decision of the United States Court of Appeal for the Ninth Circuit to support the proposition that recorded voice performances attract legal protection and commercial value.
28. Mrs. Opiyo, learned Counsel for the defendant submitted that while the plaintiff contends that several matters including that the impugned voice-overs are her recordings, that Safaricom has used and continues to use the recordings, that the defendant has no contractual right to the recordings and that the plaintiff has never been paid for the recordings are undisputed, the defendant disputes these assertions. She argued that there is no admission anywhere in the defendant’s pleadings that the voice-overs are the plaintiff’s or that the defendant uses them and that DW1 testified that he was unsure whether they remain in use. Counsel cited the Court of Appeal case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] KECA 642 (KLR) and submitted that the plaintiff produced no recordings or evidence of use, therefore she failed to prove her claim as required under Sections 107-109 of the Evidence Act.
29. Mrs. Opiyo submitted that the plaintiff also admitted having received Kshs.10,000/= from Crawford Productions Limited for the recordings, meaning her claim lies if at all, against Crawford. Mrs. Opiyo submitted that the plaintiff variously claimed to have recorded the voice-overs in 1993 or 2000, yet she filed suit more than 22-29 years later without applying for extension of time. She contended that under Sections 4(1)(a) & (2) of the Limitation of Actions Act, both contractual and tort claims are time-barred. She argued that the delay in filing this suit has severely prejudiced the defendant, which has no witnesses or documentation. To buttress these submissions, Counsel relied on the Court of Appeal cases of Alba Petroleum Limited v Total Marketing Kenya Limited [2019] KECA 846 (KLR) and Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR).
30. Counsel submitted that the plaintiff admitted contracting with Crawford Productions and being paid, and that she had no Agreement with Safaricom. She cited the Court of Appeal case of Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & another [2015] KECA 784 (KLR) and asserted that the plaintiff cannot enforce obligations arising from her contract with Crawford against the defendant. Mrs. Opiyo further submitted that the plaintiff tendered no proof that the voice in the voice-overs is hers, nor any evidence of authorship. She contended that under Section 2(1) of the Copyright Act, the producer, Crawford Productions, is the first owner of copyright in sound recordings, a position that is supported by the Kenya Copyright Board in a Guide to Copyright in Kenya and the Supreme Court of India in the case of The Indian Performing Right Society Ltd. v Mr. Aditya Pandey and Anr.-Cs (Os) 1185/2006 [2011] INDLHC 3570. She contended that the authorities relied on by the plaintiff are distinguishable from the instant case.
31. She stated that the South African case of Vodacom (PTY) Ltd involved a valid contract and the United States case of Mider v Ford Motor Co. concerned imitation of a voice, which is not alleged herein. She submitted that the plaintiff does not qualify as a performer and short Kiswahili factual phrases like “Samahani, nambari uliyopiga haitumiki kwa sasa” are not copyrightable, consistent with Kenya Copyright Board in a Guide to Copyright in Kenya, the American case of CMM Cable Rep, Inc. v Ocean Coast Properties, Inc 879 F Supp 132 and the case of Mathew Ashers Ochieng v Kenya Oil Company Limited & Another [2007] KEHC 2511 (KLR).
32. Mrs. Opiyo contended that the plaintiff has not proved ownership or infringement, hence she does not meet the threshold for an injunction. Furthermore, her monetary claim of Kshs.2,000,000/= per month is unsubstantiated, especially since voice-overs do not generate revenue. In addition, she submitted that the plaintiff provided no basis for the figure, and asserted that special damages must be strictly proved. Counsel argued that the alternative prayer for general damages is equally unsustainable and claims for royalties or an inquiry into royalties cannot be granted as they were not pleaded, consistent with the finding by the Court of Appeal in the case of David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR).
ANALYSIS AND DETERMINATION.
33. I have considered and analyzed the evidence adduced by the parties’ witnesses in line with the pleadings filed, as well as the written submissions by Counsel for the parties, the issues that arise for determination are –
i) Whether the plaintiff’s claim is statute barred;
ii) Whether the plaintiff’s claim for copyright infringement can be sustained against the defendant; and
iii) Whether the plaintiff is entitled to the reliefs sought.
Whether the plaintiff’s claim is statute barred.
34. The plaintiff’s case is that she recorded the impugned voice-overs with Crawford Productions in the year 2000 and that the defendant begun using the said recordings without her consent from that time, and has continued doing so to date. In opposition to this suit, the defendant contended that the plaintiff filed this suit in December 2021, which is approximately over 20 years after the alleged cause of action arose. It argued that if the plaintiff’s claim is founded on breach of contract, it is barred pursuant to the provisions of Section 4(1)(a) of the Limitation of Actions Act, which requires actions founded on contract to be brought within six years, and if the claim is founded on tort, it is time-barred under Section 4(2) of the Limitation of Actions Act, which sets a limitation period of three years. The plaintiff submitted that this claim cannot be time-barred as it constitutes a continuous breach given the defendant’s uninterrupted and ongoing use of the recordings.
35. From the pleadings in this suit and the evidence presented, it is clear that the plaintiff was aware of the defendant’s use of the voice-overs from the year 2000 and remained in the defendant’s employment from 2001 to 2020 without lodging any written complaint or demand for payment. Further, no evidence was produced to show any communication between the parties acknowledging liability or promising compensation for the use of the impugned voice-overs. It is also undisputed that no written or oral Agreement ever existed between the plaintiff and the defendant regarding the voice-overs. In these circumstances, this Court finds that the plaintiff’s claim cannot be anchored on breach of contract, instead it must be treated as a tortious claim based on the alleged copyright infringement.
36. Section 4(2) of the Limitation of Actions Act provides that -
An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:
Provided that an action for libel or slander may not be brought after the end of twelve months from such date.
37. In determining whether the plaintiff’s suit is time-barred, the Court must first ascertain when the cause of action accrued. The defendant argued that the cause of action herein arose at the point when it first begun using the impugned voice-overs. The plaintiff on the other hand, maintained that the harm complained of constitutes a continuing injury, as the defendant has persistently and without interruption used the recordings. The doctrine of continuing injury is well established in law. In the case of German School Society & another v Ohany & another [2023] KECA 894 (KLR), the Court of Appeal while addressing this principle held as follows -
The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. “A continuing wrong” refers to a single wrongful act which causes a continuing injury. “Recurring/successive wrongs” are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. The Supreme Court of India in Balakrishna S.P. Waghmare v Shree Dhyaneshwar Maharaj Sansthan AIR 1959 SC 798 explained the concept of continuing wrong (in the context of the Indian Limitation Act) as follows:
“It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury."
...............
Also, the Supreme Court of India in M. Siddiq v Suresh Das (2020) 1 SCC 1 observed:
343. “…. A continuing wrong arises where there is an obligation imposed by law, agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature, giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise, there must in the first place be a wrong which is actionable because in the absence of a wrong, there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual, whether positive or negative, to act or desist from acting in a particular manner. The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature. [...]
Hence, in evaluating whether there is a continuing wrong within the meaning of Section 23, the mere fact that the effect of the injury caused has continued, is not sufficient to constitute it as a continuing wrong. For instance, when the wrong is complete as a result of the act or omission which is complained of, no continuing wrong arises even though the effect or damage that is sustained may endure in the future. What makes a wrong, a wrong of a continuing nature is the breach of a duty which has not ceased but which continues to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation."
38. The import of the foregoing decision is that a wrong qualifies as continuing, only where the breach itself endures over time. In this case, this Court is satisfied that the plaintiff’s cause of action is anchored on what she describes as the defendant’s continuous and uninterrupted use of her voice-overs from the year 2000 to the present. Unlike a single, completed act, the alleged unauthorized use represents an alleged recurring infringement that occurs each time the impugned recordings are utilized on the defendant’s mobile platform. The wrong complained of is therefore not confined to the year 2000 when the initial recording was made, but is said to persist for as long as the defendant continues to utilize the impugned voice-overs without consent or compensation.
39. In the said circumstances, although the initial act complained of occurred over twenty years ago, the plaintiff’s claim in so far as it concerns the defendant’s continued and present use of the impugned voice-overs cannot be defeated solely on the basis of statutory limitation.
40. Accordingly, this Court finds that the plaintiff’s claim is not statute barred.
Whether the plaintiff’s claim for copyright infringement can be sustained against the defendant.
41. The plaintiff contended that she recorded the phrases “Samahani mteja wa nambari uliyopiga hapatikani kwa sasa, tafadhali jaribu tena baadaye”, “Nasikitika hatuwezi kukamilisha nambari uliyopiga, tafadhali angalia namba alafu upige tena” and “Samahani nambari uliyopiga haitumiki kwa sasa”, and further contended that the defendant has commercially exploited the said phrases without her permission from the year 2000 to date. This Court notes that although the pl
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2. The plaintiff’s case is that around the year 2000, she recorded several voice-overs with Crawford Productions, namely: “Samahani mteja wa nambari uliyopiga hapatikani kwa sasa, tafadhali jaribu tena baadaye,” “Nasikitika hatuwezi kukamilisha nambari uliyopiga, tafadhali angalia namba alafu upige tena,” and “Samahani nambari uliyopiga haitumiki kwa sasa.”
3. She stated that the recordings were part of an audition involving sixteen contestants and that she was informed that the winning voice-over would be approved by the defendant’s management, after which the parties would negotiate a contract for compensation.
4. The plaintiff claimed that her voice-overs were selected and approved, but without her consent and without any agreement on compensation, the defendant begun using the voice-overs on its mobile telephone platform for commercial and marketing purposes and continues to do so. She asserted that despite her efforts to pursue payment, the defendant evaded the issue while continuing to benefit commercially from her voice-overs. It was stated by the plaintiff that she was subsequently employed by the defendant from September 2001 to August 2020, during which time attempts to raise the issue of compensation were met with threats of termination, causing her to remain silent due to fear of losing her job. She further stated that since the year 2000, the defendant has continued to use her voice-overs across a subscriber base that as at December 2020, included approximately 38 Million prepaid and 1.08 Million post-paid users.
5. The plaintiff averred that for the financial year ending March 2021, the defendant recorded voice revenues of Kshs.82.5 Billion and asserted that her voice-overs formed part of the inputs contributing to such revenue over the years. She further averred that she declined other commercial recording opportunities at the defendant’s request in order to preserve the uniqueness of the voice-overs to her detriment, and to the defendant’s benefit.
6. The plaintiff contended that even under industry practice, the defendant could only lawfully use the voice-overs for an initial period of six (6) months without obtaining her further consent, but in this case, the defendant has continuously reused the recordings for over twenty years without her authority. She claims compensation for inter alia, the use of the voice-overs over the last twenty-one (21) years and periodic payments for continued use, based on the profits generated by the defendant’s mobile platform.
7. In opposition to the plaintiff’s suit, the defendant filed a defence dated 7th December 2022 denying all the averments in the plaintiff’s plaint, save that the plaintiff was employed by it from 17th September 2001 until her retirement on 16th July 2020, but asserted that at no time during the plaintiff’s employment did she raise any issue or demand relating to the alleged voice-overs. It claimed that the plaintiff’s personnel file contains no record of any such complaint. The defendant contended that the plaintiff’s plaint discloses no cause of action for reasons that the plaintiff’s claim is statute-barred under Section 4(1)(a) of the Limitation of Actions Act, as any contractual claim arising in 2000 ought to have been filed by 2006, and that it is similarly time-barred under Section 4(2) if the plaintiff’s cause of action is founded in tort.
8. The defendant averred that this suit is defeated by laches noting that the plaintiff delayed for over 22 years before filing a suit against it and that such delay prejudices the defendant’s constitutional right to a fair hearing under Article 50(1) of the Constitution, because it no longer has any witnesses or documentary evidence relating to the alleged events of the year 2000. It further averred that Crawford Productions and not the defendant, was the party that allegedly contracted the plaintiff to record the voice-overs, therefore Crawford Productions was the proper party to be sued. The defendant urged that this suit should be struck out, and asserted that the phrases in issue are fragmentary and common expressions incapable of copyright protection. It further averred that the alleged phrases lack originality and are widely used by other telecommunication providers, and that copyright in sound recordings vests in the producer.
9. The defendant claimed that the plaintiff produced no evidence that she was the producer of the recordings, and in any event, the recordings were commissioned by Crawford Productions, in which case, copyright would vest in Crawford. It contended that if the recordings were made in the course of the plaintiff’s employment, copyright would vest in the defendant pursuant to the Copyright Act. The defendant further contended that the plaintiff had not demonstrated that she solely created the recordings using her own resources, rendering her copyright claim untenable. In the circumstances, the defendant maintained that the plaintiff is not entitled to any of the reliefs sought and urged this Court to dismiss this suit with costs.
10. This matter proceeded to hearing where both the plaintiff and the defendant called one witness each, in support of their cases.
PLAINTIFF’S CASE.
11. Ms Margaret Mkacharo Wazome (the plaintiff herein) testified as PW1. She adopted her witness statement dated 16th November 2021 as her evidence in chief and produced the documents contained in her list and bundle of documents dated 6th December 2021 as plaintiff exhibits No. 1 to 5. She testified that in 2000, she recorded several voice-overs with Crawford Productions, including standard Kiswahili call-failure and call-termination messages. She stated that the recordings followed an audition involving about fifteen contestants and that the producer, together with the defendant’s representative, Ms Elizabeth Yogo, informed her that the selected voice-over would be submitted to the defendant’s top management for approval, after which payment terms for its commercial use would be negotiated.
12. PW1 stated that her voice-overs won the audition and were approved by the defendant, but the defendant proceeded to use the recordings on its mobile platform without her consent and without agreeing on payment. She testified that her attempts to pursue compensation were unsuccessful, as the defendant repeatedly asked her to wait while continuing to profit from the recordings. She testified that she later joined the defendant as an employee and worked there until her retirement on 30th August 2020. She further stated that raising the issue of compensation during her employment with the defendant exposed her to threats of termination, discouraging her from pursuing the matter further. She maintained that the defendant has used the recordings continuously since 2000 across its large subscriber base, which by December 2020 included about 38 Million prepaid and 1.08 Million post-paid users.
13. Ms Wazome referred to the defendant’s financial results for the year ending March 2021, noting that voice revenue totaled Kshs.82.5 Billion. She asserted that her voice-overs contributed to this revenue over the years because customers begin paying for the service once a call is initiated, and if the call does not go through, the defendant communicates with them using her recordings. She further testified that she turned down other commercial engagements at the defendant’s request to preserve the distinctiveness of the voice-overs, a decision she says benefited the defendant but disadvantaged her. She added that based on standard industry practice, the defendant would only have been entitled to use the recordings for an initial six-month period, after which further use would have required her consent. Ms Wazome maintained that the defendant has continued to use the voice-overs for more than twenty-one (21) years without authorization. She therefore sought the reliefs set out in the plaint.
14. She referred to the defendant’s financial results for the year ending March 2021 and stated that voice revenue amounted to Kshs.82.5 Billion. She further stated that her voice-overs formed part of the inputs contributing to such revenue over the years, since the defendant’s customers pay for the services when they initiate a call and they are unable to reach the person whom they are calling, the customers are communicated to by the defendant using the voice-overs. She reiterated that even under standard industry practice, the defendant would only have been entitled to use the recordings for an initial six-month period, after which her consent would have been required for continued use. Ms Wazome stated that the defendant has reused the voice-overs for over twenty-one (21) years without her authority. She prayed for the reliefs sought in the plaint.
15. During cross-examination, Ms Wazome explained that she recorded the voice-overs in 1993 with Crawford Productions Limited, although the defendant begun using them much later. She stated that she had no formal contract with Crawford Productions Limited and that Andrew Crawford selected her based on previous voice-over work she had done for other companies. She testified that she received no payment from Andrew Crawford Productions Limited apart from a modest fee of Kshs.10,000/=. PW1 maintained that the voice-overs were intended to run for only six (6) months and emphasized that she was never informed that they would later be used by an emerging telecommunications company.
16. Ms Wazome testified that the defendant was incorporated in 1999 and commenced operations in 2000. She stated that she merely recorded the prepared voice-over lines and did not produce them. Although she alleged that the defendant worked with Andrew Crawford Productions Limited, she admitted that she had no evidence to support the said claim. She asserted that during her employment, she discussed compensation for the use of her voice-overs with some of the defendant’s Directors and its former CEO, the late Bob Collymore, but no action was taken. PW1 acknowledged the existence of the defendant’s brand and legal department but said she did not approach them due to fear of victimization.
17. She also confirmed that her retirement letter dated 16th July 2020 indicated that she had been paid all her terminal dues, and that she never formally wrote to the defendant to make a claim regarding the voice-overs. Nonetheless, she maintained that the voice-overs continue to generate income for the defendant through customer use of its services. Ms Wazome stated that customer billing starts as soon as a call is made, and if the call does not go through, the voice-overs are played. She however acknowledged that customers are not charged for the voice-overs themselves. She claimed entitlement to Kshs.2,000,000/= per month based on the frequency of use and the size of the defendant’s customer database, though she admitted that she did not present any evidence of the database or usage. She also offered to re-enact the voice-overs in Court to demonstrate that the recorded voice was hers.
18. In re-examination, PW1 stated that the defendant is a public company and that its customer database can therefore be accessed publicly. She emphasized that the defendant has neither disputed that she recorded the voice-overs, nor has it denied that its representative was present during the recording, and that Ms Elizabeth Yogo was its employee. She clarified that her retirement letter did not address the voice-overs, as producing them was not part of her employment duties with the defendant.
DEFENDANT’S CASE.
19. Mr. Daniel Mwenja Ndaba, the defendant’s Senior Manager in charge of litigation testified as DW1. He adopted his witness statement dated 14th December 2022 as his evidence in chief and produced the documents contained in the defendant’s list and bundle of documents dated 7th December 2022 as plaintiff exhibits No. 1 to 7. He testified that the plaintiff was employed by the defendant as a customer service representative from 17th September 2001 until her retirement on 16th July 2020. He stated that a review of her personnel file revealed no demand notices or complaints regarding the voice-overs during her entire period of employment.
20. He testified that there is an unexplained delay of over 22 years in bringing the claim herein and added that the defendant no longer has witnesses or documentation relating to the production of the alleged recordings. DW1 contended that the voice-overs do not generate revenue and merely convey functional or factual information, similar to phrases used by other telecommunications providers such as Airtel. He stated that a billing event occurs when a voice call is connected to another and a call is picked, and if a call is not picked, it is not a billing event. He further stated that as outlined in the defendant’s defence, the plaintiff’s claim lacks a legal foundation and has not been proved, thus it should be dismissed with costs.
21. During cross-examination, Mr. Ndaba acknowledged that the impugned voice-overs are still in use by the defendant and that no evidence was produced to show that they were recorded by anyone else other than the plaintiff. He explained that the defendant earns revenue primarily from call billing, as well as from SMS, data services and M-Pesa services. He added that advertising across various platforms boosts the defendant’s income by attracting more customers, but emphasized that the defendant’s revenue is derived from these direct services.
22. DW1 reiterated that the voice-overs do not generate income for the defendant, describing them as purely functional messages used to notify customers when the person’s they are calling are unavailable. In his assessment, the voice-overs do not possess commercial value. Mr. Ndaba testified that if the voice-overs and sound recordings were made in the course of the plaintiff’s employment, copyright would vest in the defendant under the Copyright Act. He noted that as a publicly listed company, the defendant’s financial accounts are publicly accessible.
23. In re-examination, Mr. Ndaba stated that he was not certain if the plaintiff’s voice-overs were still being used by the defendant. He reiterated that the voice-overs do not generate revenue, describing them as purely informational and lacking commercial value.
24. Upon the close of the plaintiff’s and the defendant’s cases, the Court directed the parties to file written submissions. The plaintiff’s submissions were filed on 5th February 2024 by the law firm of Otieno Okeyo & Company Advocates, while the defendant’s submissions were filed on 18th March 2025 by the law firm of Kaplan & Stratton Advocates.
25. Mr. Okeyo, learned Counsel for the plaintiff submitted that it is not contested that the impugned voice-overs are recordings of the plaintiff’s voice, that the plaintiff was not an employee of the defendant at the time of the recordings, that the defendant has used and continues to use the recordings on its mobile telephony platform, that the defendant is a profit-making enterprise, that it holds no contractual rights authorizing such use and that it has never paid for the voice-overs. Counsel asserted that the voice-overs serve an essential commercial function in maintaining customer experience and supporting network efficiency, thus contributing indirectly to the defendant’s revenue. He argued that the defendant’s denial of economic value is inconsistent with its continued use of the recordings for 24 years.
26. On limitation of time, Mr. Okeyo referred to the case of John Mugalla Mwaduma v Braeburn Schools Ltd t/a Braeburn International School Mombasa [2015] KEELRC 252 (KLR), and submitted that the cause of action herein constitutes a continuous breach, given the defendant’s uninterrupted and ongoing use of the recordings. He contended that the defence under Section 4(1) of the Limitation of Actions Act is unavailable in the absence of any pleaded or proved contract relating to the voice-overs.
27. Regarding copyright, Counsel contended that the voice-overs are protected sound recordings under the Copyright Act and that as the owner of the recorded voice, the plaintiff holds the rights therein. Mr. Okeyo stated that the defendant neither demonstrated any rights acquired from Crawford Productions Limited nor joined Crawford as a party to this suit. He relied on comparative jurisprudence, including the South African Court of Appeal case of Vodacom (PTY) Ltd v Kenneth Nkosana Makate & Shammel Joosub No (Case No. 410/2022) [2024] ZASCA 14 (06 February 2024) and the case of Mider v Ford Motor Co. 849F.2d 460 (9 Cir.1988), a decision of the United States Court of Appeal for the Ninth Circuit to support the proposition that recorded voice performances attract legal protection and commercial value.
28. Mrs. Opiyo, learned Counsel for the defendant submitted that while the plaintiff contends that several matters including that the impugned voice-overs are her recordings, that Safaricom has used and continues to use the recordings, that the defendant has no contractual right to the recordings and that the plaintiff has never been paid for the recordings are undisputed, the defendant disputes these assertions. She argued that there is no admission anywhere in the defendant’s pleadings that the voice-overs are the plaintiff’s or that the defendant uses them and that DW1 testified that he was unsure whether they remain in use. Counsel cited the Court of Appeal case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] KECA 642 (KLR) and submitted that the plaintiff produced no recordings or evidence of use, therefore she failed to prove her claim as required under Sections 107-109 of the Evidence Act.
29. Mrs. Opiyo submitted that the plaintiff also admitted having received Kshs.10,000/= from Crawford Productions Limited for the recordings, meaning her claim lies if at all, against Crawford. Mrs. Opiyo submitted that the plaintiff variously claimed to have recorded the voice-overs in 1993 or 2000, yet she filed suit more than 22-29 years later without applying for extension of time. She contended that under Sections 4(1)(a) & (2) of the Limitation of Actions Act, both contractual and tort claims are time-barred. She argued that the delay in filing this suit has severely prejudiced the defendant, which has no witnesses or documentation. To buttress these submissions, Counsel relied on the Court of Appeal cases of Alba Petroleum Limited v Total Marketing Kenya Limited [2019] KECA 846 (KLR) and Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR).
30. Counsel submitted that the plaintiff admitted contracting with Crawford Productions and being paid, and that she had no Agreement with Safaricom. She cited the Court of Appeal case of Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & another [2015] KECA 784 (KLR) and asserted that the plaintiff cannot enforce obligations arising from her contract with Crawford against the defendant. Mrs. Opiyo further submitted that the plaintiff tendered no proof that the voice in the voice-overs is hers, nor any evidence of authorship. She contended that under Section 2(1) of the Copyright Act, the producer, Crawford Productions, is the first owner of copyright in sound recordings, a position that is supported by the Kenya Copyright Board in a Guide to Copyright in Kenya and the Supreme Court of India in the case of The Indian Performing Right Society Ltd. v Mr. Aditya Pandey and Anr.-Cs (Os) 1185/2006 [2011] INDLHC 3570. She contended that the authorities relied on by the plaintiff are distinguishable from the instant case.
31. She stated that the South African case of Vodacom (PTY) Ltd involved a valid contract and the United States case of Mider v Ford Motor Co. concerned imitation of a voice, which is not alleged herein. She submitted that the plaintiff does not qualify as a performer and short Kiswahili factual phrases like “Samahani, nambari uliyopiga haitumiki kwa sasa” are not copyrightable, consistent with Kenya Copyright Board in a Guide to Copyright in Kenya, the American case of CMM Cable Rep, Inc. v Ocean Coast Properties, Inc 879 F Supp 132 and the case of Mathew Ashers Ochieng v Kenya Oil Company Limited & Another [2007] KEHC 2511 (KLR).
32. Mrs. Opiyo contended that the plaintiff has not proved ownership or infringement, hence she does not meet the threshold for an injunction. Furthermore, her monetary claim of Kshs.2,000,000/= per month is unsubstantiated, especially since voice-overs do not generate revenue. In addition, she submitted that the plaintiff provided no basis for the figure, and asserted that special damages must be strictly proved. Counsel argued that the alternative prayer for general damages is equally unsustainable and claims for royalties or an inquiry into royalties cannot be granted as they were not pleaded, consistent with the finding by the Court of Appeal in the case of David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR).
ANALYSIS AND DETERMINATION.
33. I have considered and analyzed the evidence adduced by the parties’ witnesses in line with the pleadings filed, as well as the written submissions by Counsel for the parties, the issues that arise for determination are –
i) Whether the plaintiff’s claim is statute barred;
ii) Whether the plaintiff’s claim for copyright infringement can be sustained against the defendant; and
iii) Whether the plaintiff is entitled to the reliefs sought.
Whether the plaintiff’s claim is statute barred.
34. The plaintiff’s case is that she recorded the impugned voice-overs with Crawford Productions in the year 2000 and that the defendant begun using the said recordings without her consent from that time, and has continued doing so to date. In opposition to this suit, the defendant contended that the plaintiff filed this suit in December 2021, which is approximately over 20 years after the alleged cause of action arose. It argued that if the plaintiff’s claim is founded on breach of contract, it is barred pursuant to the provisions of Section 4(1)(a) of the Limitation of Actions Act, which requires actions founded on contract to be brought within six years, and if the claim is founded on tort, it is time-barred under Section 4(2) of the Limitation of Actions Act, which sets a limitation period of three years. The plaintiff submitted that this claim cannot be time-barred as it constitutes a continuous breach given the defendant’s uninterrupted and ongoing use of the recordings.
35. From the pleadings in this suit and the evidence presented, it is clear that the plaintiff was aware of the defendant’s use of the voice-overs from the year 2000 and remained in the defendant’s employment from 2001 to 2020 without lodging any written complaint or demand for payment. Further, no evidence was produced to show any communication between the parties acknowledging liability or promising compensation for the use of the impugned voice-overs. It is also undisputed that no written or oral Agreement ever existed between the plaintiff and the defendant regarding the voice-overs. In these circumstances, this Court finds that the plaintiff’s claim cannot be anchored on breach of contract, instead it must be treated as a tortious claim based on the alleged copyright infringement.
36. Section 4(2) of the Limitation of Actions Act provides that -
An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:
Provided that an action for libel or slander may not be brought after the end of twelve months from such date.
37. In determining whether the plaintiff’s suit is time-barred, the Court must first ascertain when the cause of action accrued. The defendant argued that the cause of action herein arose at the point when it first begun using the impugned voice-overs. The plaintiff on the other hand, maintained that the harm complained of constitutes a continuing injury, as the defendant has persistently and without interruption used the recordings. The doctrine of continuing injury is well established in law. In the case of German School Society & another v Ohany & another [2023] KECA 894 (KLR), the Court of Appeal while addressing this principle held as follows -
The principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. “A continuing wrong” refers to a single wrongful act which causes a continuing injury. “Recurring/successive wrongs” are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. The Supreme Court of India in Balakrishna S.P. Waghmare v Shree Dhyaneshwar Maharaj Sansthan AIR 1959 SC 798 explained the concept of continuing wrong (in the context of the Indian Limitation Act) as follows:
“It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury."
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Also, the Supreme Court of India in M. Siddiq v Suresh Das (2020) 1 SCC 1 observed:
343. “…. A continuing wrong arises where there is an obligation imposed by law, agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature, giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise, there must in the first place be a wrong which is actionable because in the absence of a wrong, there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual, whether positive or negative, to act or desist from acting in a particular manner. The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature. [...]
Hence, in evaluating whether there is a continuing wrong within the meaning of Section 23, the mere fact that the effect of the injury caused has continued, is not sufficient to constitute it as a continuing wrong. For instance, when the wrong is complete as a result of the act or omission which is complained of, no continuing wrong arises even though the effect or damage that is sustained may endure in the future. What makes a wrong, a wrong of a continuing nature is the breach of a duty which has not ceased but which continues to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation."
38. The import of the foregoing decision is that a wrong qualifies as continuing, only where the breach itself endures over time. In this case, this Court is satisfied that the plaintiff’s cause of action is anchored on what she describes as the defendant’s continuous and uninterrupted use of her voice-overs from the year 2000 to the present. Unlike a single, completed act, the alleged unauthorized use represents an alleged recurring infringement that occurs each time the impugned recordings are utilized on the defendant’s mobile platform. The wrong complained of is therefore not confined to the year 2000 when the initial recording was made, but is said to persist for as long as the defendant continues to utilize the impugned voice-overs without consent or compensation.
39. In the said circumstances, although the initial act complained of occurred over twenty years ago, the plaintiff’s claim in so far as it concerns the defendant’s continued and present use of the impugned voice-overs cannot be defeated solely on the basis of statutory limitation.
40. Accordingly, this Court finds that the plaintiff’s claim is not statute barred.
Whether the plaintiff’s claim for copyright infringement can be sustained against the defendant.
41. The plaintiff contended that she recorded the phrases “Samahani mteja wa nambari uliyopiga hapatikani kwa sasa, tafadhali jaribu tena baadaye”, “Nasikitika hatuwezi kukamilisha nambari uliyopiga, tafadhali angalia namba alafu upige tena” and “Samahani nambari uliyopiga haitumiki kwa sasa”, and further contended that the defendant has commercially exploited the said phrases without her permission from the year 2000 to date. This Court notes that although the pl
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