REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM NO. E389 0f 2022
PAUL OGOLA …………………………………………………...........PLAINTIFF
VERSUS
OPRAH OYUGI ………………………………………………...1ST DEFENDANT
GOOD KARMA FICTION AFRICA LIMITED ………………2ND DEFENDANT
NETFLIX INTERNATIONAL B.V………………….…………3RD DEFENDANT
KRYSTIN SAVANE……………………………………….…...4TH DEFENDANT
RULING
1. This ruling is in regard to a Notice of Preliminary Objection dated 14th November, 2022, filed by the 1st defendant. It raises the following grounds-
(i) That this suit is fatally defective because the plaintiff did not issue and serve summons to enter appearance to the 1st defendant pursuant to Order 5 Rule 1 of the Civil Procedure (Amended) Rules, 2010;
(ii) This suit does not present and/or produce any sufficient evidence before the Court against the 1st defendant therefore the suit as against the 1st defendant is frivolous, vexatious and a complete waste of the Court’s time and resources;
(iii) The suit offends Regulation 4(3) of the Copyright Regulations, 2020 and therefore frivolous and vexatious; and
(iv) The entire proceedings are therefore null and void ab initio.
2. In support of the 1st defendant’s Preliminary Objection, the firm of Kiskan Law Africa LLP filed written submissions dated 14th July, 2023. On behalf of the plaintiff, the law firm of OG Makowade Advocates filed written submissions dated 16th June, 2023.
3. Mr. Kanyoge for the 1st defendant stated that the plaintiff claims ownership of the copyright and authorship of two original literary works, namely, “See No Evil”, a TV series script and “Siri Kali”. He further stated that the plaintiff’s case is that the defendants have jointly and severally infringed on his intellectual property rights and claims to be in the proper forum to handle his claim. Counsel submitted that the 1st defendant herein has not exhausted all available legal avenues before approaching this Court in a copyright infringement case.
4. Counsel for the 1st defendant relied on the case of the Speaker of the National Assembly v Njenga Karume [2008] KLR 425, where the Court of Appeal stated that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed.
5. Mr. Kanyonge also relied on the provisions of Section 5 of the Copyright Act which provides the functions of the Copyright Board, which include the oversight of copyright related matters including disputes, and if a person is aggrieved by the decision of the said Board, he can appeal to the Copyright Tribunal.
6. Counsel relied on the case of Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, where the Court of Appeal emphasized on the importance of exhausting alternative mechanisms before resorting to litigation.
7. Counsel contended that there is no evidence of infringement of copyright law as envisaged in Section 35(1) to (3) of the Copyright Act and that the 1st defendant has not committed any of the offences listed in Section 38(1) of the Copyright Act, 2019. He also contended that the plaintiff has not adduced any evidence to prove that the 1st defendant owns the copyright to the “Country Queen” series and as such, the 1st defendant should not be part of the proceedings before this Court.
8. Mr. Kanyonge stated that it is imperative for individuals to utilize provided avenues as it not only demonstrates regard for the established dispute resolution mechanisms but more importantly, respect for the rule of law.
9. Mr. Makowande, the plaintiff’s Counsel, opposed the Preliminary Objection and stated that although the 1st defendant contends that she was not served with summons to enter appearance, she entered appearance on 24th October, 2022 and thereafter the suit was mentioned on 16th November, 2022. In demonstrating the purpose intended by service of summons, Counsel relied on the case of Amina Hersi Moghe & 2 others v Diamond Trust Bank Kenya Limited & another [2021] eKLR.
10. Mr. Makowande wondered how the 1st defendant can claim not to have been served with summons to enter appearance yet she had filed a response to the claim and had continuously attended Court.
11. The plaintiff’s Counsel stated that it is worrisome to note that the 1st defendant and her Counsel have drawn the conclusion that there is no evidence against her, yet no witness has been examined and cross-examined in Court. Counsel relied on the case of Mwangi S. Kimenyi v Attorney General & another [2014] eKLR and the decision in Rift Valley Water Services Board v Oriental Construction Co. Limited [2018] eKLR, to support the submission that the power to dismiss a suit is at the discretion of the Court and it must be exercised judiciously.
12. He urged this Court not to dismiss the suit between the parties herein, based on the 1st defendant’s opinion that the evidence before this Court against the defendants is not sufficient, as that is a matter to be determined at the hearing of the case.
13. On the 1st defendant’s contention that the copyright in issue is not registered under Section 4(3) of the Copyright Regulations, the plaintiff’s Counsel stated that the 1st defendant cannot purport to object to the plaintiff’s claim on the basis of non-registration of a copyright for works that are exempted by the law.
14. On whether the Notice of Preliminary Objection meets the test laid down in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited (1969) EA 696, Mr. Makowande submitted that the dispute between the parties herein is based on triable issues and the objection raised cannot be determined without a full hearing where witnesses are allowed to testify.
ANALYSIS AND DETERMINATION
The issue for determination is if the Preliminary Objection raised by the 1st defendant should be sustained.
15. I have read and considered the issues raised in the Preliminary Objection, the submissions and authorities relied on by both the Counsel for the 1st defendant and for the plaintiff. Having done so, and bearing in mind the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited (supra) and the case of Oraro v Mbaja [2005] 1KLR 141, on what constitutes a Preliminary Objection, and that it should be premised on pure points of law, it is clear in my mind that an allegation such as the one raised by the 1st defendant herein of non-service of summons to enter appearance, is not an issue that can be canvassed by way of a Preliminary Objection as it shuts out the opposing party from filing factual evidence by way of affidavit and exhibiting any documents it may wish to. In this Court’s considered view, such an application should be brought by way of a Notice of Motion so as to give leeway to both parties to support their claims through depositions.
16. It is therefore my finding that the issue of non-service of summons to enter appearance is not a pure point of law and does not fall in the ambit of a Preliminary Objection.
17. The 2nd ground about the suit filed by the plaintiff being frivolous and vexatious calls for an explanation from the 1st defendant as to why she thinks that the plaintiff’s case is frivolous and vexatious. That is a matter that calls for evidence by way of affidavit. It then follows that the 1st defendant’s 2nd ground raises factual issues that do not qualify as pure points of law.
18. On the ground that the suit between the parties herein offends Regulation 4(3) of the Copyright Regulations, 2020, that too calls for evidence to be adduced, as the plaintiff would have to demonstrate the works that are alleged to have been infringed by the defendants, and the latter would have to adduce evidence to rebut the allegation. The plaintiff would also have to prove through evidence if indeed the works in dispute are exempt from registration under the Copyright Regulations, 2020 and the 1st defendant would have to rebut the same. That would come in by way of evidence and the applicable law would then apply.
19. I must mention that the 1st defendant filed a Notice of Preliminary Objection and apart from addressing the 1st ground, the rest of the grounds were thrown at the face of the Court for it to decipher for itself what the said defendant was driving at as the other grounds were not addressed in the 1st defendant’s submissions.
20. In the case of Oraro v Mbaja (supra), Ojwang, J (as he then was), expressed himself as follows on Preliminary Objections:
“The principle is abundantly clear. A ‘preliminary objection’ correctly understood, is now well defined as and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling proof or seeks to adduce evidence for its authentication, is not, as matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts a matter cannot be raised as a preliminary point. ... Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”
21. It is clear to me that the 1st defendant’s Preliminary Objection fails the above test and is for dismissal. In the result, the Notice of Preliminary Objection dated 14th November, 2022 is hereby dismissed with costs being awarded to the plaintiff/respondent.
It is so ordered.
DELIVERED, DATED and SIGNED at NAIROBI on this 1st day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Makowade for the respondent/plaintiff in the PO
No appearance for the applicant in the PO/1st defendant
Ms B. Wokabi – Court Assistant.
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM NO. E389 0f 2022
PAUL OGOLA …………………………………………………...........PLAINTIFF
VERSUS
OPRAH OYUGI ………………………………………………...1ST DEFENDANT
GOOD KARMA FICTION AFRICA LIMITED ………………2ND DEFENDANT
NETFLIX INTERNATIONAL B.V………………….…………3RD DEFENDANT
KRYSTIN SAVANE……………………………………….…...4TH DEFENDANT
RULING
1. This ruling is in regard to a Notice of Preliminary Objection dated 14th November, 2022, filed by the 1st defendant. It raises the following grounds-
(i) That this suit is fatally defective because the plaintiff did not issue and serve summons to enter appearance to the 1st defendant pursuant to Order 5 Rule 1 of the Civil Procedure (Amended) Rules, 2010;
(ii) This suit does not present and/or produce any sufficient evidence before the Court against the 1st defendant therefore the suit as against the 1st defendant is frivolous, vexatious and a complete waste of the Court’s time and resources;
(iii) The suit offends Regulation 4(3) of the Copyright Regulations, 2020 and therefore frivolous and vexatious; and
(iv) The entire proceedings are therefore null and void ab initio.
2. In support of the 1st defendant’s Preliminary Objection, the firm of Kiskan Law Africa LLP filed written submissions dated 14th July, 2023. On behalf of the plaintiff, the law firm of OG Makowade Advocates filed written submissions dated 16th June, 2023.
3. Mr. Kanyoge for the 1st defendant stated that the plaintiff claims ownership of the copyright and authorship of two original literary works, namely, “See No Evil”, a TV series script and “Siri Kali”. He further stated that the plaintiff’s case is that the defendants have jointly and severally infringed on his intellectual property rights and claims to be in the proper forum to handle his claim. Counsel submitted that the 1st defendant herein has not exhausted all available legal avenues before approaching this Court in a copyright infringement case.
4. Counsel for the 1st defendant relied on the case of the Speaker of the National Assembly v Njenga Karume [2008] KLR 425, where the Court of Appeal stated that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed.
5. Mr. Kanyonge also relied on the provisions of Section 5 of the Copyright Act which provides the functions of the Copyright Board, which include the oversight of copyright related matters including disputes, and if a person is aggrieved by the decision of the said Board, he can appeal to the Copyright Tribunal.
6. Counsel relied on the case of Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, where the Court of Appeal emphasized on the importance of exhausting alternative mechanisms before resorting to litigation.
7. Counsel contended that there is no evidence of infringement of copyright law as envisaged in Section 35(1) to (3) of the Copyright Act and that the 1st defendant has not committed any of the offences listed in Section 38(1) of the Copyright Act, 2019. He also contended that the plaintiff has not adduced any evidence to prove that the 1st defendant owns the copyright to the “Country Queen” series and as such, the 1st defendant should not be part of the proceedings before this Court.
8. Mr. Kanyonge stated that it is imperative for individuals to utilize provided avenues as it not only demonstrates regard for the established dispute resolution mechanisms but more importantly, respect for the rule of law.
9. Mr. Makowande, the plaintiff’s Counsel, opposed the Preliminary Objection and stated that although the 1st defendant contends that she was not served with summons to enter appearance, she entered appearance on 24th October, 2022 and thereafter the suit was mentioned on 16th November, 2022. In demonstrating the purpose intended by service of summons, Counsel relied on the case of Amina Hersi Moghe & 2 others v Diamond Trust Bank Kenya Limited & another [2021] eKLR.
10. Mr. Makowande wondered how the 1st defendant can claim not to have been served with summons to enter appearance yet she had filed a response to the claim and had continuously attended Court.
11. The plaintiff’s Counsel stated that it is worrisome to note that the 1st defendant and her Counsel have drawn the conclusion that there is no evidence against her, yet no witness has been examined and cross-examined in Court. Counsel relied on the case of Mwangi S. Kimenyi v Attorney General & another [2014] eKLR and the decision in Rift Valley Water Services Board v Oriental Construction Co. Limited [2018] eKLR, to support the submission that the power to dismiss a suit is at the discretion of the Court and it must be exercised judiciously.
12. He urged this Court not to dismiss the suit between the parties herein, based on the 1st defendant’s opinion that the evidence before this Court against the defendants is not sufficient, as that is a matter to be determined at the hearing of the case.
13. On the 1st defendant’s contention that the copyright in issue is not registered under Section 4(3) of the Copyright Regulations, the plaintiff’s Counsel stated that the 1st defendant cannot purport to object to the plaintiff’s claim on the basis of non-registration of a copyright for works that are exempted by the law.
14. On whether the Notice of Preliminary Objection meets the test laid down in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited (1969) EA 696, Mr. Makowande submitted that the dispute between the parties herein is based on triable issues and the objection raised cannot be determined without a full hearing where witnesses are allowed to testify.
ANALYSIS AND DETERMINATION
The issue for determination is if the Preliminary Objection raised by the 1st defendant should be sustained.
15. I have read and considered the issues raised in the Preliminary Objection, the submissions and authorities relied on by both the Counsel for the 1st defendant and for the plaintiff. Having done so, and bearing in mind the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited (supra) and the case of Oraro v Mbaja [2005] 1KLR 141, on what constitutes a Preliminary Objection, and that it should be premised on pure points of law, it is clear in my mind that an allegation such as the one raised by the 1st defendant herein of non-service of summons to enter appearance, is not an issue that can be canvassed by way of a Preliminary Objection as it shuts out the opposing party from filing factual evidence by way of affidavit and exhibiting any documents it may wish to. In this Court’s considered view, such an application should be brought by way of a Notice of Motion so as to give leeway to both parties to support their claims through depositions.
16. It is therefore my finding that the issue of non-service of summons to enter appearance is not a pure point of law and does not fall in the ambit of a Preliminary Objection.
17. The 2nd ground about the suit filed by the plaintiff being frivolous and vexatious calls for an explanation from the 1st defendant as to why she thinks that the plaintiff’s case is frivolous and vexatious. That is a matter that calls for evidence by way of affidavit. It then follows that the 1st defendant’s 2nd ground raises factual issues that do not qualify as pure points of law.
18. On the ground that the suit between the parties herein offends Regulation 4(3) of the Copyright Regulations, 2020, that too calls for evidence to be adduced, as the plaintiff would have to demonstrate the works that are alleged to have been infringed by the defendants, and the latter would have to adduce evidence to rebut the allegation. The plaintiff would also have to prove through evidence if indeed the works in dispute are exempt from registration under the Copyright Regulations, 2020 and the 1st defendant would have to rebut the same. That would come in by way of evidence and the applicable law would then apply.
19. I must mention that the 1st defendant filed a Notice of Preliminary Objection and apart from addressing the 1st ground, the rest of the grounds were thrown at the face of the Court for it to decipher for itself what the said defendant was driving at as the other grounds were not addressed in the 1st defendant’s submissions.
20. In the case of Oraro v Mbaja (supra), Ojwang, J (as he then was), expressed himself as follows on Preliminary Objections:
“The principle is abundantly clear. A ‘preliminary objection’ correctly understood, is now well defined as and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling proof or seeks to adduce evidence for its authentication, is not, as matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts a matter cannot be raised as a preliminary point. ... Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”
21. It is clear to me that the 1st defendant’s Preliminary Objection fails the above test and is for dismissal. In the result, the Notice of Preliminary Objection dated 14th November, 2022 is hereby dismissed with costs being awarded to the plaintiff/respondent.
It is so ordered.
DELIVERED, DATED and SIGNED at NAIROBI on this 1st day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Makowade for the respondent/plaintiff in the PO
No appearance for the applicant in the PO/1st defendant
Ms B. Wokabi – Court Assistant.