Background and introduction
1. For determination is the Notice of Motion application dated 24th December 2024, brought under Section 1A and 3A of the Civil Procedure Act, Order 40 Rules 1 and 4 and Order 51 Rule 1 of the Civil Procedure Rules, as well as Rule 38 of the Civil Procedure (Court-Annexed Mediation) Rules, 2022. The application is supported by the affidavit of the applicant sworn on 24th December 2024 and further affidavit sworn on 22nd January 2025. The applicant seeks interim orders pending the hearing and determination of this application and suit.
2. These include orders authorizing the applicant to register with a publishing company so as to collect royalties due to her, authorizing her to release her new musical compositions and sound recordings, restraining the respondents from holding themselves out as her exclusive agents or agents, restraining the respondents from entering into binding contracts with third parties on her behalf and restraining the respondents from dealing with the proceeds of the respondents work but instead, to deliver such monies to the applicant.
3. The application is opposed by way of a replying affidavit sworn by Michael Ndung’u, the 1st respondent, on 15th January 2025.
4. The dispute between the parties, simply put, relates to a music promotion and management agreement between the applicant, an artist and the 1st and 2nd defendants, wherein the 1st respondent had accepted to act as the applicant’s agent. The applicant’s case is that the Agreement dated 7th November 2023, which gave the 2nd respondents exclusive rights to sell and use the applicant’s recordings, amongst others and the amendments thereto were procured through misrepresentation, undue influence, and breach of fiduciary duty by the 1st respondent.
5. She contends that the 1st respondent did not inform her of the need to retain an independent advocate before signing the agreement. It is the applicant’s further case that she was coerced by the 1st respondent into signing a one-page “inducement” on 11th December 2023 which committed her to a complex “Exclusive Distribution and Licensing Agreement" dated 9th December 2023. She contends that she had not seen or read the distribution agreement, neither did she understand its terms and conditions. This, the applicant contends, was not in her best interests but in the 2nd respondent’s interests even though the 1st respondent was supposed to act in her interests as his agent.
6. As a result of the agreements, the plaintiff is unable to collect her royalties, leading to loss in huge amounts because the respondents continue to hold themselves out as her agents, which means that she is unable to register with any other publisher so as to collect her royalties.
7. The applicant accuses the 1st respondent of breaching the agreement by promoting the applicant’s work as his work, failing to provide her with a performance schedule, whereupon she lost opportunities to tour and perform and also caused her loss.
8. She contends that as a result, she issued a notice of termination of the agreement with the respondents, which the respondents continue to treat as existing, thereby breaching her contractual freedom, against her will. The applicant contends that the respondents continue to hold themselves out as her exclusive agent, against her will and she is therefore unable to release any new music or work with other record labels who have made offers to her.
9. The respondents contest the termination and allegation of breach by the applicant. They also submit that the applicant entered into the contracts with the respondents knowingly and has benefitted from the contracts. That the contract was for a 3 year period but the applicant now wishes to opt out after the respondents had managed to streamline her career by helping her opt out of previous unfair contracts. The respondents argue that the applicants have not provided any evidence of breach of the said contracts.
Analysis and Determination
10. I have reviewed the parties’ pleadings, evidence and submissions both oral and written. The main issue for determination is whether the applicant has met the threshold for granting the injunction orders sought.
11. I am alive to the legal maxim that it is not the business of courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved. (See National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd [2002]2 EA 503). The primary task of the court is to construe the contract and any terms implied in it. (See Megarry, J. in the case of Coco vs A. N. Clark (Engineers) Ltd. - [1969] RPC 41).
12. There is no dispute that, on the face of it, the impugned agreements between the applicant and the respondents have been duly executed by both parties. However, allegations of coercion, fraud, undue influence, and misrepresentation are matters that will require evidentiary proof at trial. At this stage, I refrain from making any further observations to avoid prejudicing the fair hearing of the suit.
13. On the strength of Clause 6 of the Agreement of 7th November 2023, the applicant issued a Notice of Termination dated 29th April 2024. The said Clause provides that;
Termination
“Either party may terminate this agreement upon 60 days written notice if the other party materially breaches this Agreement and fails to correct the beach within reasonable cure period”.
14. Technically, the agreement between the parties stands terminated. While the respondents contend that the applicant benefited from the contract, including an advance payment of USD 200,000, this does not override her contractual right to terminate the agreement in accordance with Clause 6. Any disputes concerning the repayment of advances, financial obligations, or the circumstances surrounding the termination shall be addressed at trial.
15. Similarly, in Clifford Davis v WEA Records [1975] 1 All E.R 240, Lord Denning, citing from Instone v Schroeder Musical Publishing Co. Ltd, [1974] 3 All ER 616 acknowledged that a contract that is unduly restrictive of trade in an oppressive and unjustifiable manner may be deemed unenforceable. The same reasoning applies in the present case, where the applicant argues that the agreement imposes unfair restrictions on her ability to freely pursue her career.
16. I have considered the circumstances presented by the facts of this dispute. Courts are generally reluctant to grant mandatory injunctions at the interlocutory stage unless there are exceptional circumstances or where the applicant demonstrates a clear right that has been infringed. (See Kenya Breweries Ltd & another v Washington O. Okeyo [2002] eKLR), where the Court of Appeal held that mandatory injunctions should only be granted where there is a strong case that is likely to succeed. In the present case, the applicant has shown that her contractual freedom continues being infringed while she suffers career stagnation.
17. Since the applicant has issued a termination notice, the respondents continuing to hold themselves out as her agents is prejudicial to her. Likewise, denying the applicant the ability to register with another publisher could permanently prevent her from collecting royalties, constituting irreparable harm. In any case, the respondents can seek compensation in damages if the contract is later found to be enforceable. Additionally, if the contract is found to be void due to misrepresentation and undue influence, preventing the applicant from releasing music would be an unjust restriction on her career. In my view, these are exceptional reasons which justify the mandatory injunctive prayers sought in the application.
18. While financial loss is generally compensable as submitted by the parties, the balance of convenience must weigh the hardships each party would suffer if the injunction is granted or denied. If the injunction is granted, the respondents will lose control over an agreement they claim is still valid, potentially affecting their commercial interests. If the injunction is denied, the applicant on the other hand remains unable to exploit her music freely. She will suffer the immediate harm of loss of artistic freedom and her career could suffer irreparable damage while waiting for the trial to conclude. The balance of convenience in my view, therefore favors granting the injunction.
19. In order to strike a balance between the rights of all parties, the order authorizing the applicant to register with a publishing company to collect royalties from her musical recordings shall be subject to the condition that the respondents continue to collect royalties and earnings on behalf of the applicant for work they facilitated until the lapse of the 60-day termination notice period, which began on 29th April 2024. All such royalties shall be deposited in full into an escrow account pending the hearing and determination of the matter. The applicant shall have full rights over royalties earned after the 60-day termination period, while pre-termination royalties shall remain preserved in escrow until the court makes a final determination on ownership.
Disposition
20. Accordingly, the application dated 24th December 2024 is allowed in the following terms;
i. A temporary order be and is hereby issued authorizing the Plaintiff/Applicant to register with a publisher/publishing company and collect all royalties due to the Plaintiff/Applicant from all her musical compositions and sound recordings pending the hearing and determination of the suit. This order is subject to the 2nd respondent facilitating and ensuring such publication agreement is entered into within 14 days hereof and ensuring the collection of the royalties and earnings on behalf of the applicant for past work, up to and until the lapse of the 60 days’ notice of termination, starting from 29th April 2024.
ii. These royalties shall be deposited in full in an escrow account to be determined by the parties, pending the hearing and determination of the matter.
iii. The applicant shall have full rights over royalties earned after the termination period, and shall keep an account of such, until determination of the suit.
iv. A temporary order be and is hereby issued authorizing the Plaintiff/Applicant to release any of her new musical compositions and/or sound recordings pending the hearing and determination of the suit
v. A temporary injunction be and is hereby issued restraining the Respondents whether by themselves, their officers, agents, servants, proxies, and/or any other person acting under their direction, control or authority from holding themselves out as the exclusive agents or agents of the Plaintiff/Applicant in respect of any musical works, compositions, recordings, copyrights, or related works of the Plaintiff/Applicant pending the hearing and determination of the suit (subject to orders i and ii above)
vi. A temporary injunction be and is hereby issued restraining the Respondents whether by themselves, their officers, agents, servants, proxies, and/or any other person acting under their direction, control or authority from entering into any agreement, collaboration, partnership or arrangement with any third party which in any manner binds or purports to bind the Plaintiff/Applicant or otherwise imposes any obligations whatsoever to the Plaintiff/Applicant pending the hearing and determination of the suit. (subject to orders i and ii above)
vii. A temporary injunction be and is hereby issued restraining the Respondents whether by themselves, their officers, agents, servants, proxies, and/or any other person acting under their direction, control or authority from transacting, withdrawing, transferring, disposing of, wasting, or in any other manner dealing with the funds the Respondents have received from any proceeds of royalties, performances, tours, appearances, merchandise, ventures, partnerships, synchronization, and any other exploitation of the Plaintiff/Applicant’s copyrights in her musical compositions and sound recordings except to deliver up or transfer such funds to the Plaintiff/Applicant pending the hearing and determination of the suit (subject to orders i and ii above)
viii. Costs of the application shall await the outcome of the suit.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 10th DAY OF FEBRUARY 2025.
F. MUGAMBI
JUDGE