REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 90 OF 2020
IN THE MATTER OF ARTICLES 35(2) AND 48 THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF SECTIONS 2, 34, 35 OF THE COPYRIGHT ACT NO. 12 OF 2001 AND
IN THE MATTER OF DENIAL, VIOLATION, OR INFRINGEMENT OF OR THREAT THE PETITIONER’S RIGHT TO ACCESS OF INFORMATION
AND
IN THE MATTER OF ACCESS TO JUSTICE
BETWEEN
TALENT WORKS AND RIGHTS
ENFORCEMENT AGENCY……………………………………. PETITIONER
VERSUS
KENYA COPYRIGHT BOARD………………..…………..1 ST RESPONDENT
THE ATTORNEY GENERAL …………………………….2 ND RESPONDENT
JUDGMENT
1. The Petitioner herein Talent Works and Rights Enforcement Agency Describes itself as a limited liability company duly incorporated in Kenya pursuant to the Companies Act, 2015 and registered to do and offer agency services to copyright owners and or holders within the Republic of Kenya.it also pleads that it is an assignee/ exclusive licensee of Copyrights by dint of deed of assignments entered into between various copyright owners and itself.
2. The 1 st Respondent is a state corporation established under section 3 of the Copyright Act No. 12 of 2001 and mandated under section 43 to prosecute cases arising out of the infringement of the Copyright Act.
3. The 2 nd Respondent is the Attorney General of the Republic of Kenya and established under Article 156 of the Constitution. The Attorney General is the Principal Legal Advisor to the National Government and represents the National Government in civil proceedings.
4. The Petitioner’s case as per the Petition dated 5 th March 2020 is that courtesy of its deeds of assignment with the various copyright owners, it is assigned to take up all infringement issues and in collaboration with the relevant authorities, prosecute any person found culpable; investigate, inspect, detect and identify with the help of police officers,/ inspectors/ relevant authorities on any infringement complaint; and facilitate recovery and take inventory of any seizure suspected to be used or intended to be use din making such infringement through the help of Police Officers / inspectors/ relevant authorities among others.
5. The petitioner states that in exercising its mandate, it has on several occasions been in constant communication with the 1 st Respondent concerning matters that touch on copyright infringement for their prosecution. It however accuses the 1 st respondent of having, through ill motive, continuously frustrating the functions of the Petitioner during the course of its business in the manner stated below.
6. That by a letter dated 29 th October, 2015, addressed to the Director of Public Prosecutions, the 1 st Respondent accused the Petitioner of being an impostor and of fleecing members of the public through acts of harassment and confiscation of goods
7. That again vide a letter dated 4 th may 2017, the 1 st Respondent wrote to the Chief Magistrate’s Court at Kajiado concerning a criminal matter where the Petitioner lodged a complaint against one Brian Godi Otieno stating that the Petitioner was an extortionist and further requested the Court to dismiss the case and proceed to return the seized goods to the accused persons.
8. That later vide a letter dated 4 th July 2017, the 1 st Respondent wrote to the Chief Magistrate’s Court at Kajiado stating that the aforesaid case against Brian Otieno Godi had been settled out of Court by the complainant and the accused person and it should therefore be marked as settled.
9. The Petitioner claims that the information in the two letters addressed to the Chief Magistrate’s Court at Kajiado was contradictory and misleading which led to the magistrate writing to the 1 st Respondent seeking clarification on the alleged facts about the Petitioner.
10. The Petitioner also claims that it did present an infringer of copyright, to Court, one Brian Gichuki Wanjiku on 2 nd May 2018 but that the 1 st Respondent again wrote to the Chief Magistrate’s Court at Kerugoya Law Courts vide letter dated 21 st May, 2018 in Criminal Case No. 338 of 2018, alleging that the Petitioner is an impostor, impersonating itself as the 1 st Respondent and was hell bent to on extorting money from innocent hardworking individuals, and explaining how its Legal Counsel relied on averments of the accused person concerning the case that was before Court.
11. That in the same aforesaid letter, the 1 st Respondent purported to withdraw the case against the accused person under section 204 of the Criminal Procedure Code, to have the accused be set at liberty and his property be returned.
12. The Petitioner further accuses the 1 st Respondent of having written a letter dated 17 th August, 2018 to the OCPD Dagoretti stating that the Petitioner had no certificate of authority to inspect. The Petitioner then wrote a letter dated 27 th August 2018 refuting allegations contained in the letter of 17 th August 2018, stating that the 1 st Respondent’s letter was untruthful and had misleading information as the Petitioner was not an inspector under the Copyright Act but an agency hence not in requirement of a certificate of authority as alleged.
13. That on 5 th September 2018, the Petitioner wrote to the 1 st Respondent demanding that the latter retracts its letter of 21 st May 2018 but that to date, no response had been received from the 1 st Respondent even after reminders were send vide letter dated 6 th November, 2018.
14. The Petitioner states that following this circus, it wrote to the Office of Ombudsman on 12 th November, 2018 seeking action for mal administration of and administrative Justice by the 1 st respondent and that in its letter to Ombudsman dated 20 th December, 2018, the 1 st Respondent assured that its Board would put in place a system for future engagement with the Petitioner, which never materialized.
15. The Petitioner claims that the allegations levelled against it by the 1 st respondent through the aforestated letters had put the Petitioner’s integrity to question in the eyes of its clients and members of the public and has brought it great disrepute in the industry. The Petitioner therefore claims that it had been unlawfully deprived of its right to access justice, to do business lawfully and or peacefully enjoy the same and has suffered and continues to suffer substantial loss unless this Court is pleased to intervene for purposes of protecting its constitutionally guarantees right to access justice and as provided for in the Constitution.
16. The Petitioner alleges that its right under Article 35(2) of the Constitution, to the correction or deletion of information that is untrue or misleading affecting it had been denied. It also claims that its right to access justice under Article 48 of the Constitution had been denied or violated by the 1 st respondent refusing to prosecute matters of infringement of copyrights. It claims that under sections 34 and 35 of the Copyright Act, it facilitates infringement cases.
17. It asserts that under Article 21 of the Constitution, it has the right to institute these proceedings and that the jurisdiction of this Court is derived from Articles 23 and 165 of the Constitution to hear and grant remedies for violation of rights.
18. The Petitioner therefore prays for the following reliefs:
i. A Declaration that the Petitioner’s right under Article 35(2) has been violated, breached and or infringed upon by the 1 st and 2 nd Respondents in contravention of Articles 35 (2) of the Constitution.
ii. A declaration that the Petitioner is entitled to a deletion and or correction of the untrue and misleading information passed to the public by the 1 st Respondent in giving the untrue information.
iii. An order directing the respondents to compensate the Petitioner loss arising from violation of the right to information under Article 35(2) and the dissemination of wrongful information.
iv. An order compelling the 1 st Respondent to correct the untrue and misleading information passed to the public by the 1 st Respondent in giving the untrue information specifically that the Petitioner is an impostor.
v. Any other or further just and expedient relief as the Court may deem fit to grant.
19. The Petition is further supported by the affidavit sworn by Edward R. Olang, the Director of the Petitioner, annexing documents which include letters referred to in the main petition. The supporting affidavit is a replica of the facts which I have reproduced herein above from the Petition and therefore I need not rehash them here.
20. Before I venture into the responses to the Petition, it is important to state here that the petition has been pending since 2020 because when the same came up for highlighting of written submissions on 22 nd May, 2024, there was no appearance on the part of the petitioner or its advocate and therefore the petition was dismissed for non-attendance to prosecute. The file was then closed. Later, the petitioner applied for reinstatement vide an application dated 18 th August, 2025.
21. Opposing the Petition, the 1 st Respondent filed a replying affidavit sworn by George Nyakwera, the 1 st Respondent’s Deputy Executive Director on 14 th April, 2021. He deposes that the 1 st Respondent is a state Corporation under the Office of Attorney General and department of Justice and established under section 3 of the Copyright Act No. 12 of 2001. Further, that under section 5 of the Copyright Act, the 1 st Respondent is the sole organization that has the statutory mandate for administration and enforcement of all matters of copyrights in Kenya. The deponent deposes that the Petitioner is a limited liability Company registered under the Companies Act and that it purports to enforce the provisions of the Copyright Act in Kenya.
22. The deponent further deposes that the 1 st Respondent is mandated under section 39(1) of the Copyright Act to appoint inspectors for purposes of enforcing provisions of the Copyright Act and in so appointing, issue them with Certificate of authority to act as such inspectors who, upon appointment, holds office subject to such conditions as the 1 st Respondent may determine with approval of the Cabinet Secretary.
23. Further deposition is that under section 39(2) of the Copyright Act, any member of the Copyright Board or a police officer may perform the functions of a Copyright Inspector.
24. According to the 1 st Respondent, since the Petitioner has never been a member of the Copyright Board or a police officer, it has never been a copyright Inspector for it to purport to enforce the provisions of the Copyright Act.
25. Concerning prosecutorial powers, it is deponed that only the DPP or officers exercising the DPP’s delegated authority can undertake prosecution in cases of copyright infringement as provided for under section 43 (1) of the Copyright Act and the Criminal Procedure Code;
26. The deponent denies that the Petitioner has any exclusive license or deeds of assignment authorizing it to enforce copyright on behalf of the Copyright board or intellectual property owners and that such license or deeds of assignment would be illegal and unconstitutional, null and void.
27. It is further deposed that on 16 th December, 2019, the DPP revoked prosecutorial powers donated to state agencies prosecutors in order to harmonize prosecutorial powers vide Gazette Notice No. 12159. That the 1 st respondent has copyright inspectors who inspect copyright infringement and therefore it cannot be said to be facilitating copyright infringement as alleged by the Petitioner.
28. That there had been reports in the media, of the petitioner going round the country with compromised police officers, purporting to enforce the Copyright Act infringements by extorting money from members of the public with impunity and that in some instances, the petitioner has confiscated people’s laptops and computers containing musical works yet there is no offence known in law for possessing such gadgets with musical works and that as a result, the 1 st respondent had to write to court withdrawing such charges that disclosed no offence..
29. It is deposed that the petitioner belongs to a self-appointed group engages in acts of vigilantism with no legal basis whatsoever and who do not respect the rule of law but compromise fair trial and leads to wrongful convictions thereby violating the rights to fair trial, right to life and freedom of security. The 1 st respondent urged this court to dismiss the petition.
30. The 2 nd Respondent filed grounds of opposition dated 7 th December, 2023 contending that the petition does not disclose any claim against it or agencies that it represents, that the 2 nd respondent is not a necessary party and its presence is not required to enable the court adjudicate upon and determine the issues in controversy in the petition, that there is no nexus between it and the petitioner’s case as the alleged violations do not touch on any actions of the 2 nd respondents or its agencies and that no allegation of violation of rights has been pleaded against the 2 nd respondent hence it has been improperly joined to the petition hence it should be struck out from the petition.
Submissions
31. Parties filed written submissions to canvass the petition. The petitioner’s submissions are dated 20 th December, 2023 in which its counsel reiterates the contents of the petition and supporting affidavit, maintaining that the petitioner is a voluntary entity assisting talented artists to feel their intellectual property rights which have been infringed and no government action has been taken to protect from such infringement or exploitation, and that the 1 st respondent had refused to prosecute violators of the Copyright Act and frustrated the petitioner’s efforts by maligning it and calling it an extortionist and imposter by withdrawing cases filed in court against violators of the intellectual property rights.
32. The petitioner reproduces what was pleaded in the petition and which the court adopts as its case.
33. The 1 st respondent filed submissions dated 26 th May 2026 framing three issues for determination namely:
i. Whether the Petitioner has legal authority under the Copyright Act to investigate, inspect, seize property, prosecute or enforce copyright infringements matters
ii. Whether the actions of the 1 st Respondent violated Articles 35(2) and 48 of the Constitution
iii. Whether the petition satisfies the constitutional threshold required in constitutional litigation.
34. Submitting on issues i and ii, the 1 st respondent reiterates its depositions in the replying affidavit as highlighted in the body of this Judgment.
35. On issue iii, the 1 st respondent urges this court to find that the petition offends the doctrine of constitutional avoidance on account that the issues raised in the petition are defamation matters which ought to be determined in ordinary civil suits and not a constitutional petition. Reliance is placed on the Supreme Court decision in Communications Commission of Kenya & 3 Ohers v Royal media Services Limited ad 5 others [2014] eKLR.
36. The 1 st respondent urges this court to dismiss the petition with costs.
37. The 2 nd Respondent did not file any submissions.
Analysis and Determination
38. I have considered the petition, the responses thereto and the written submissions. I find the main issues for determination to be:
i. Whether the 2 nd respondent s a necessary party to the petition
ii. Whether the petition meets the threshold for constitutional petitions or whether it offends the doctrine of avoidance
iii. Depending on the answer to issue ii above, whether the petition is merited
iv. What orders should this court make including on costs.
i. Whether the 2nd respondent is a necessary party to the petition
39. The 2 nd Respondent Attorney general in the grounds of opposition dated 7 th December, 2023 urged this Court to strike it off the Petition as there is no allegation leveled against it in the petition and that neither does the petitioner seek any remedy against it.
40. Further, that it had not been demonstrated as to how it violated the petitioner’s rights since there is no evidence linking it to the alleged violations. The 2 nd Respondent maintained that it is not a necessary party and that its presence is not required to enable the court to adjudicate upon and determine the issues in controversy in the petition.
41. That it has been improperly joined and made to incur unnecessary expense and tedious court process. That there is no legal basis upon which it was enjoined to the petition.
42. Rule 5 of the (Mutunga Rules), the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides as follows:
5 .The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—
(a) Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.
(b) A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.
( c) Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.
(d) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—
i.order that the name of any party improperly joined, be struck out; and
ii.that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.
(e)Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.
43. On the other hand, a Respondent, under the same Mutunga Rules is defined under Rule 2 as:
“respondent” means a person who is alleged to have denied, violated or infringed, or threatened to deny, violate or infringe a right or fundamental freedom.
44. The above Rule 5 is categorical that a petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.
45. To correct misjoinder or non-joinder, the Court is empowered either on application by a party or on its own motion, to order the striking out of a party improperly joined . The Court may also order the addition of any person who ought to have been joined, or whose participation in the matter before it may be necessary in order to enable the court adjudicate upon and settle the matter.
46. The Supreme Court in Ndii & others v Attorney General & others (Petition E282, 397, E400, E401, E416 & E426 of 2020 & 2 of 2021 (Consolidated)) [2021] KEHC 9746 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment) held as follows regarding the effect of misjoinder or non-joinder of parties:
“Be that as it may, order 1 rule 9 of the Civil Procedure Rules is clear that a suit cannot be defeated for misjoinder or non-joinder and that what the court should be bothered with is the determination of the rights of the parties; that rule reads as follows: No suit shall be defeated by reason of the misjoinder or non- joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
To the extent that this rule is applicable to the petitions such as the one before court, we can confidently say that regardless of whether the 1 st respondent has been properly joined to this suit, this court is in good stead and ideally placed to ‘deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”
47. On who is a necessary party to proceedings before a court, L.N. Mugambi J, in Mokaya v Independent Electoral & Boundaries Commission & 4 others (Constitutional Petition E191 of 2025) [2026] KEHC 12990 (KLR) (Constitutional and Human Rights) (20 August 2026) (Ruling) quite recently, citing other decisions including binding ones on this Court, stated as follows at paragraphs 29 to 34 of the decision:
“29. That notwithstanding, the Court in Youth Limited v Kihiko & another; Kenya Railways Corporation (Intended Defendant) [2024] KEELC 1413 (KLR) observed thus:
“Courts have held that a party is necessary to a suit where it is shown that the legal reliefs sought would directly affect the person sought to be joined, to avoid a multiplicity of suits or where it is shown that the Defendant cannot effectually set a defence unless that person is joined in it. This position was set out in the Ugandan case of Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 quoted with approval by the Court of Appeal in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR as follows:
A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.
30.The Court of Appeal also quoted its earlier decision in Meme v Republic (2004) KLR637 wherein it held that joinder will be permissible: a. Where the presence of the party will result in the complete settlement of all the question involved in the proceedings; b. Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law: and c.Where the joinder will prevent a likely course of proliferated litigation.”
31.As to the meaning of cause of action, this phrase simply describes the existence of facts that would give rise to a claim that is properly founded in law. In Isaiah Ondiba Bitange v & 3 others v Institute of Engineers of Kenya another [2017]eKLR the Court explained thus:
A cause of action was defined by Obi Okoye — Essays on Civil Proceedings,[1] thus — "By a cause of action is meant any facts or series of facts which are complete in themselves to found a claim or relief.” In the case of Drummond Jackson v. British Medical Associations & Ors., Lord Pearson stated as follows:-“...... the expression “reasonable cause of action” ....No exact paraphrase can be given, but I think “reasonable cause of action” means a cause of action with some chance of success when.... only the allegations in the pleading are considered, if it is found that the alleged cause of action is to fail, the statement of claim should be struck out.”
The Supreme Court of Nigeria in the case of Oshoboja v. Amuda & Ors; held that a reasonable cause of action means a cause of action with some chances of success, when only the allegations in the Statement of Claim are considered. Our law is the law of the practitioner rather than the law of the philosopher. Decisions have to draw their inspiration and their strength from the very facts which framed the issues for decisions.
32.The Court went further to state as follows:
“… The pith and marrow of it is that where on a consideration of only the allegations in the pleading the court concludes that a cause of action with some chance of success is shown then that pleading discloses a reasonable cause of action. Person, J in Drummond Jackson v British Medical Association, the definition of a cause of action was determined as an act on the part of the Defendant which gives the Plaintiff his cause of complaint….”
33.In the same way, the Court in Njunge v Ministry of Interior & Coordination of National Government & 3 others [2024] KEHC 4676 citing a number of authorities with approval noted as follows:
That the application discloses no reasonable cause of action or defence in law. In DT Dobie & Co. (Kenya) Limited v Muchina & Another [1982] KLR, the Court of Appeal defined reasonable cause of action to mean “an action with some chance of success when allegations in the plaint only are considered. A cause of action will not be considered reasonable if it does not state such facts as to support the claim prayer…
34.The 2 nd Respondent’s position is that the Petitioner has not demonstrated with exactitude why the 2 nd Respondent (Speaker of the National Assembly) is a party in these proceedings. The 2 nd Respondent argued that the Petitioner neither mention it in the Petition nor supporting affidavit. Further, the Petitioner has not sought any relief against the 2 nd Respondent.”
48. In the instant petition, the 1 st respondent is a state corporation established under section3 of the Copyright Act and with the power to sue and be sued in its own corporate name. There is no single allegation made against the 2 nd Respondent that it violated or how it violated the petitioner’s rights. Apart from simply stating in the reliefs that the respondents violated the petitioner’s rights, no pleading mentions how the 2 nd respondent could have violated or threatened the petitioner’s rights with violation.
49. Under rule 5 of the Mutunga Rules, and in view of the definition of who a respondent is under Rule 2 of the said Rules, in constitutional litigation, if a petition fails to disclose a cause of action, clear allegations of rights violations, or specific reliefs against a particular respondent, the court has the authority to strike out that respondent from the petition.
50. In African Centre for Corrective and Preventive Action & 31 others v Google Kenya Limited & 4 others; Ideate Tech Policy Africa Limited (Amicus Curiae) (Petition E068 of 2023) [2026] KEHC 7021 (KLR) (Constitutional and Human Rights) (20 May 2026) (Ruling), this Court had occasion to discuss whether a respondent against whom no allegation of violation of rights was made should be struck off the petition and the Court stated:
“24.In the present petition, this Court has not been shown that the presence of the 5 th respondent is necessary in order for this court to completely and effectually determine all the issues raised in the petition. Differently put, this Court is unable to identify any issue that cannot be fully determined in the absence of the 5th Respondent.
25.I reiterate my earlier statement that parties should not be added to Court proceedings just to make the petition look good. A respondent should only be brought to court if there is an issue that needs their active and not passive participation.
26.In this case, the 5 th respondent is not just any other party, it is enjoined as a main respondent, not as an interested party or amicus curiae. Its continued presence in these proceedings must serve a useful legal purpose such that whereas this Court remains mindful that constitutional petitions should not be defeated by procedural technicalities, that principle cannot be stretched to justify indiscriminate joinder of parties against whom no cause of action is disclosed.
27.Rule 5 of the Mutunga Rules as cited above exists not only to facilitate access to justice, but also to shield parties from unnecessary and unjustified litigation, so that the 5 th respondent should not spent all the time in court simply saying that there is no allegation made against it, until the petition is heard and a decision rendered.
28.I am therefore satisfied that the 5th Respondent was improperly joined to these proceedings and that no reasonable cause of action has been disclosed against it. In the end, I find the application dated 10 th December, 2025, seeking to strike out the 5th Respondent from these proceedings to be merited. I allow it and proceed to strike out from the petition herein the name of the 5 th respondent.”
51. In this case, as no cause of action has been disclosed against the 2 nd Respondent, I find no reason to retain the 2 nd Respondent in these proceedings, noting that the striking out will not affect the merits of the petition and neither will be sus
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 90 OF 2020
IN THE MATTER OF ARTICLES 35(2) AND 48 THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF SECTIONS 2, 34, 35 OF THE COPYRIGHT ACT NO. 12 OF 2001 AND
IN THE MATTER OF DENIAL, VIOLATION, OR INFRINGEMENT OF OR THREAT THE PETITIONER’S RIGHT TO ACCESS OF INFORMATION
AND
IN THE MATTER OF ACCESS TO JUSTICE
BETWEEN
TALENT WORKS AND RIGHTS
ENFORCEMENT AGENCY……………………………………. PETITIONER
VERSUS
KENYA COPYRIGHT BOARD………………..…………..1 ST RESPONDENT
THE ATTORNEY GENERAL …………………………….2 ND RESPONDENT
JUDGMENT
1. The Petitioner herein Talent Works and Rights Enforcement Agency Describes itself as a limited liability company duly incorporated in Kenya pursuant to the Companies Act, 2015 and registered to do and offer agency services to copyright owners and or holders within the Republic of Kenya.it also pleads that it is an assignee/ exclusive licensee of Copyrights by dint of deed of assignments entered into between various copyright owners and itself.
2. The 1 st Respondent is a state corporation established under section 3 of the Copyright Act No. 12 of 2001 and mandated under section 43 to prosecute cases arising out of the infringement of the Copyright Act.
3. The 2 nd Respondent is the Attorney General of the Republic of Kenya and established under Article 156 of the Constitution. The Attorney General is the Principal Legal Advisor to the National Government and represents the National Government in civil proceedings.
4. The Petitioner’s case as per the Petition dated 5 th March 2020 is that courtesy of its deeds of assignment with the various copyright owners, it is assigned to take up all infringement issues and in collaboration with the relevant authorities, prosecute any person found culpable; investigate, inspect, detect and identify with the help of police officers,/ inspectors/ relevant authorities on any infringement complaint; and facilitate recovery and take inventory of any seizure suspected to be used or intended to be use din making such infringement through the help of Police Officers / inspectors/ relevant authorities among others.
5. The petitioner states that in exercising its mandate, it has on several occasions been in constant communication with the 1 st Respondent concerning matters that touch on copyright infringement for their prosecution. It however accuses the 1 st respondent of having, through ill motive, continuously frustrating the functions of the Petitioner during the course of its business in the manner stated below.
6. That by a letter dated 29 th October, 2015, addressed to the Director of Public Prosecutions, the 1 st Respondent accused the Petitioner of being an impostor and of fleecing members of the public through acts of harassment and confiscation of goods
7. That again vide a letter dated 4 th may 2017, the 1 st Respondent wrote to the Chief Magistrate’s Court at Kajiado concerning a criminal matter where the Petitioner lodged a complaint against one Brian Godi Otieno stating that the Petitioner was an extortionist and further requested the Court to dismiss the case and proceed to return the seized goods to the accused persons.
8. That later vide a letter dated 4 th July 2017, the 1 st Respondent wrote to the Chief Magistrate’s Court at Kajiado stating that the aforesaid case against Brian Otieno Godi had been settled out of Court by the complainant and the accused person and it should therefore be marked as settled.
9. The Petitioner claims that the information in the two letters addressed to the Chief Magistrate’s Court at Kajiado was contradictory and misleading which led to the magistrate writing to the 1 st Respondent seeking clarification on the alleged facts about the Petitioner.
10. The Petitioner also claims that it did present an infringer of copyright, to Court, one Brian Gichuki Wanjiku on 2 nd May 2018 but that the 1 st Respondent again wrote to the Chief Magistrate’s Court at Kerugoya Law Courts vide letter dated 21 st May, 2018 in Criminal Case No. 338 of 2018, alleging that the Petitioner is an impostor, impersonating itself as the 1 st Respondent and was hell bent to on extorting money from innocent hardworking individuals, and explaining how its Legal Counsel relied on averments of the accused person concerning the case that was before Court.
11. That in the same aforesaid letter, the 1 st Respondent purported to withdraw the case against the accused person under section 204 of the Criminal Procedure Code, to have the accused be set at liberty and his property be returned.
12. The Petitioner further accuses the 1 st Respondent of having written a letter dated 17 th August, 2018 to the OCPD Dagoretti stating that the Petitioner had no certificate of authority to inspect. The Petitioner then wrote a letter dated 27 th August 2018 refuting allegations contained in the letter of 17 th August 2018, stating that the 1 st Respondent’s letter was untruthful and had misleading information as the Petitioner was not an inspector under the Copyright Act but an agency hence not in requirement of a certificate of authority as alleged.
13. That on 5 th September 2018, the Petitioner wrote to the 1 st Respondent demanding that the latter retracts its letter of 21 st May 2018 but that to date, no response had been received from the 1 st Respondent even after reminders were send vide letter dated 6 th November, 2018.
14. The Petitioner states that following this circus, it wrote to the Office of Ombudsman on 12 th November, 2018 seeking action for mal administration of and administrative Justice by the 1 st respondent and that in its letter to Ombudsman dated 20 th December, 2018, the 1 st Respondent assured that its Board would put in place a system for future engagement with the Petitioner, which never materialized.
15. The Petitioner claims that the allegations levelled against it by the 1 st respondent through the aforestated letters had put the Petitioner’s integrity to question in the eyes of its clients and members of the public and has brought it great disrepute in the industry. The Petitioner therefore claims that it had been unlawfully deprived of its right to access justice, to do business lawfully and or peacefully enjoy the same and has suffered and continues to suffer substantial loss unless this Court is pleased to intervene for purposes of protecting its constitutionally guarantees right to access justice and as provided for in the Constitution.
16. The Petitioner alleges that its right under Article 35(2) of the Constitution, to the correction or deletion of information that is untrue or misleading affecting it had been denied. It also claims that its right to access justice under Article 48 of the Constitution had been denied or violated by the 1 st respondent refusing to prosecute matters of infringement of copyrights. It claims that under sections 34 and 35 of the Copyright Act, it facilitates infringement cases.
17. It asserts that under Article 21 of the Constitution, it has the right to institute these proceedings and that the jurisdiction of this Court is derived from Articles 23 and 165 of the Constitution to hear and grant remedies for violation of rights.
18. The Petitioner therefore prays for the following reliefs:
i. A Declaration that the Petitioner’s right under Article 35(2) has been violated, breached and or infringed upon by the 1 st and 2 nd Respondents in contravention of Articles 35 (2) of the Constitution.
ii. A declaration that the Petitioner is entitled to a deletion and or correction of the untrue and misleading information passed to the public by the 1 st Respondent in giving the untrue information.
iii. An order directing the respondents to compensate the Petitioner loss arising from violation of the right to information under Article 35(2) and the dissemination of wrongful information.
iv. An order compelling the 1 st Respondent to correct the untrue and misleading information passed to the public by the 1 st Respondent in giving the untrue information specifically that the Petitioner is an impostor.
v. Any other or further just and expedient relief as the Court may deem fit to grant.
19. The Petition is further supported by the affidavit sworn by Edward R. Olang, the Director of the Petitioner, annexing documents which include letters referred to in the main petition. The supporting affidavit is a replica of the facts which I have reproduced herein above from the Petition and therefore I need not rehash them here.
20. Before I venture into the responses to the Petition, it is important to state here that the petition has been pending since 2020 because when the same came up for highlighting of written submissions on 22 nd May, 2024, there was no appearance on the part of the petitioner or its advocate and therefore the petition was dismissed for non-attendance to prosecute. The file was then closed. Later, the petitioner applied for reinstatement vide an application dated 18 th August, 2025.
21. Opposing the Petition, the 1 st Respondent filed a replying affidavit sworn by George Nyakwera, the 1 st Respondent’s Deputy Executive Director on 14 th April, 2021. He deposes that the 1 st Respondent is a state Corporation under the Office of Attorney General and department of Justice and established under section 3 of the Copyright Act No. 12 of 2001. Further, that under section 5 of the Copyright Act, the 1 st Respondent is the sole organization that has the statutory mandate for administration and enforcement of all matters of copyrights in Kenya. The deponent deposes that the Petitioner is a limited liability Company registered under the Companies Act and that it purports to enforce the provisions of the Copyright Act in Kenya.
22. The deponent further deposes that the 1 st Respondent is mandated under section 39(1) of the Copyright Act to appoint inspectors for purposes of enforcing provisions of the Copyright Act and in so appointing, issue them with Certificate of authority to act as such inspectors who, upon appointment, holds office subject to such conditions as the 1 st Respondent may determine with approval of the Cabinet Secretary.
23. Further deposition is that under section 39(2) of the Copyright Act, any member of the Copyright Board or a police officer may perform the functions of a Copyright Inspector.
24. According to the 1 st Respondent, since the Petitioner has never been a member of the Copyright Board or a police officer, it has never been a copyright Inspector for it to purport to enforce the provisions of the Copyright Act.
25. Concerning prosecutorial powers, it is deponed that only the DPP or officers exercising the DPP’s delegated authority can undertake prosecution in cases of copyright infringement as provided for under section 43 (1) of the Copyright Act and the Criminal Procedure Code;
26. The deponent denies that the Petitioner has any exclusive license or deeds of assignment authorizing it to enforce copyright on behalf of the Copyright board or intellectual property owners and that such license or deeds of assignment would be illegal and unconstitutional, null and void.
27. It is further deposed that on 16 th December, 2019, the DPP revoked prosecutorial powers donated to state agencies prosecutors in order to harmonize prosecutorial powers vide Gazette Notice No. 12159. That the 1 st respondent has copyright inspectors who inspect copyright infringement and therefore it cannot be said to be facilitating copyright infringement as alleged by the Petitioner.
28. That there had been reports in the media, of the petitioner going round the country with compromised police officers, purporting to enforce the Copyright Act infringements by extorting money from members of the public with impunity and that in some instances, the petitioner has confiscated people’s laptops and computers containing musical works yet there is no offence known in law for possessing such gadgets with musical works and that as a result, the 1 st respondent had to write to court withdrawing such charges that disclosed no offence..
29. It is deposed that the petitioner belongs to a self-appointed group engages in acts of vigilantism with no legal basis whatsoever and who do not respect the rule of law but compromise fair trial and leads to wrongful convictions thereby violating the rights to fair trial, right to life and freedom of security. The 1 st respondent urged this court to dismiss the petition.
30. The 2 nd Respondent filed grounds of opposition dated 7 th December, 2023 contending that the petition does not disclose any claim against it or agencies that it represents, that the 2 nd respondent is not a necessary party and its presence is not required to enable the court adjudicate upon and determine the issues in controversy in the petition, that there is no nexus between it and the petitioner’s case as the alleged violations do not touch on any actions of the 2 nd respondents or its agencies and that no allegation of violation of rights has been pleaded against the 2 nd respondent hence it has been improperly joined to the petition hence it should be struck out from the petition.
Submissions
31. Parties filed written submissions to canvass the petition. The petitioner’s submissions are dated 20 th December, 2023 in which its counsel reiterates the contents of the petition and supporting affidavit, maintaining that the petitioner is a voluntary entity assisting talented artists to feel their intellectual property rights which have been infringed and no government action has been taken to protect from such infringement or exploitation, and that the 1 st respondent had refused to prosecute violators of the Copyright Act and frustrated the petitioner’s efforts by maligning it and calling it an extortionist and imposter by withdrawing cases filed in court against violators of the intellectual property rights.
32. The petitioner reproduces what was pleaded in the petition and which the court adopts as its case.
33. The 1 st respondent filed submissions dated 26 th May 2026 framing three issues for determination namely:
i. Whether the Petitioner has legal authority under the Copyright Act to investigate, inspect, seize property, prosecute or enforce copyright infringements matters
ii. Whether the actions of the 1 st Respondent violated Articles 35(2) and 48 of the Constitution
iii. Whether the petition satisfies the constitutional threshold required in constitutional litigation.
34. Submitting on issues i and ii, the 1 st respondent reiterates its depositions in the replying affidavit as highlighted in the body of this Judgment.
35. On issue iii, the 1 st respondent urges this court to find that the petition offends the doctrine of constitutional avoidance on account that the issues raised in the petition are defamation matters which ought to be determined in ordinary civil suits and not a constitutional petition. Reliance is placed on the Supreme Court decision in Communications Commission of Kenya & 3 Ohers v Royal media Services Limited ad 5 others [2014] eKLR.
36. The 1 st respondent urges this court to dismiss the petition with costs.
37. The 2 nd Respondent did not file any submissions.
Analysis and Determination
38. I have considered the petition, the responses thereto and the written submissions. I find the main issues for determination to be:
i. Whether the 2 nd respondent s a necessary party to the petition
ii. Whether the petition meets the threshold for constitutional petitions or whether it offends the doctrine of avoidance
iii. Depending on the answer to issue ii above, whether the petition is merited
iv. What orders should this court make including on costs.
i. Whether the 2nd respondent is a necessary party to the petition
39. The 2 nd Respondent Attorney general in the grounds of opposition dated 7 th December, 2023 urged this Court to strike it off the Petition as there is no allegation leveled against it in the petition and that neither does the petitioner seek any remedy against it.
40. Further, that it had not been demonstrated as to how it violated the petitioner’s rights since there is no evidence linking it to the alleged violations. The 2 nd Respondent maintained that it is not a necessary party and that its presence is not required to enable the court to adjudicate upon and determine the issues in controversy in the petition.
41. That it has been improperly joined and made to incur unnecessary expense and tedious court process. That there is no legal basis upon which it was enjoined to the petition.
42. Rule 5 of the (Mutunga Rules), the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides as follows:
5 .The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—
(a) Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.
(b) A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.
( c) Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.
(d) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—
i.order that the name of any party improperly joined, be struck out; and
ii.that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.
(e)Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.
43. On the other hand, a Respondent, under the same Mutunga Rules is defined under Rule 2 as:
“respondent” means a person who is alleged to have denied, violated or infringed, or threatened to deny, violate or infringe a right or fundamental freedom.
44. The above Rule 5 is categorical that a petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.
45. To correct misjoinder or non-joinder, the Court is empowered either on application by a party or on its own motion, to order the striking out of a party improperly joined . The Court may also order the addition of any person who ought to have been joined, or whose participation in the matter before it may be necessary in order to enable the court adjudicate upon and settle the matter.
46. The Supreme Court in Ndii & others v Attorney General & others (Petition E282, 397, E400, E401, E416 & E426 of 2020 & 2 of 2021 (Consolidated)) [2021] KEHC 9746 (KLR) (Constitutional and Human Rights) (13 May 2021) (Judgment) held as follows regarding the effect of misjoinder or non-joinder of parties:
“Be that as it may, order 1 rule 9 of the Civil Procedure Rules is clear that a suit cannot be defeated for misjoinder or non-joinder and that what the court should be bothered with is the determination of the rights of the parties; that rule reads as follows: No suit shall be defeated by reason of the misjoinder or non- joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
To the extent that this rule is applicable to the petitions such as the one before court, we can confidently say that regardless of whether the 1 st respondent has been properly joined to this suit, this court is in good stead and ideally placed to ‘deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”
47. On who is a necessary party to proceedings before a court, L.N. Mugambi J, in Mokaya v Independent Electoral & Boundaries Commission & 4 others (Constitutional Petition E191 of 2025) [2026] KEHC 12990 (KLR) (Constitutional and Human Rights) (20 August 2026) (Ruling) quite recently, citing other decisions including binding ones on this Court, stated as follows at paragraphs 29 to 34 of the decision:
“29. That notwithstanding, the Court in Youth Limited v Kihiko & another; Kenya Railways Corporation (Intended Defendant) [2024] KEELC 1413 (KLR) observed thus:
“Courts have held that a party is necessary to a suit where it is shown that the legal reliefs sought would directly affect the person sought to be joined, to avoid a multiplicity of suits or where it is shown that the Defendant cannot effectually set a defence unless that person is joined in it. This position was set out in the Ugandan case of Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 quoted with approval by the Court of Appeal in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR as follows:
A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.
30.The Court of Appeal also quoted its earlier decision in Meme v Republic (2004) KLR637 wherein it held that joinder will be permissible: a. Where the presence of the party will result in the complete settlement of all the question involved in the proceedings; b. Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law: and c.Where the joinder will prevent a likely course of proliferated litigation.”
31.As to the meaning of cause of action, this phrase simply describes the existence of facts that would give rise to a claim that is properly founded in law. In Isaiah Ondiba Bitange v & 3 others v Institute of Engineers of Kenya another [2017]eKLR the Court explained thus:
A cause of action was defined by Obi Okoye — Essays on Civil Proceedings,[1] thus — "By a cause of action is meant any facts or series of facts which are complete in themselves to found a claim or relief.” In the case of Drummond Jackson v. British Medical Associations & Ors., Lord Pearson stated as follows:-“...... the expression “reasonable cause of action” ....No exact paraphrase can be given, but I think “reasonable cause of action” means a cause of action with some chance of success when.... only the allegations in the pleading are considered, if it is found that the alleged cause of action is to fail, the statement of claim should be struck out.”
The Supreme Court of Nigeria in the case of Oshoboja v. Amuda & Ors; held that a reasonable cause of action means a cause of action with some chances of success, when only the allegations in the Statement of Claim are considered. Our law is the law of the practitioner rather than the law of the philosopher. Decisions have to draw their inspiration and their strength from the very facts which framed the issues for decisions.
32.The Court went further to state as follows:
“… The pith and marrow of it is that where on a consideration of only the allegations in the pleading the court concludes that a cause of action with some chance of success is shown then that pleading discloses a reasonable cause of action. Person, J in Drummond Jackson v British Medical Association, the definition of a cause of action was determined as an act on the part of the Defendant which gives the Plaintiff his cause of complaint….”
33.In the same way, the Court in Njunge v Ministry of Interior & Coordination of National Government & 3 others [2024] KEHC 4676 citing a number of authorities with approval noted as follows:
That the application discloses no reasonable cause of action or defence in law. In DT Dobie & Co. (Kenya) Limited v Muchina & Another [1982] KLR, the Court of Appeal defined reasonable cause of action to mean “an action with some chance of success when allegations in the plaint only are considered. A cause of action will not be considered reasonable if it does not state such facts as to support the claim prayer…
34.The 2 nd Respondent’s position is that the Petitioner has not demonstrated with exactitude why the 2 nd Respondent (Speaker of the National Assembly) is a party in these proceedings. The 2 nd Respondent argued that the Petitioner neither mention it in the Petition nor supporting affidavit. Further, the Petitioner has not sought any relief against the 2 nd Respondent.”
48. In the instant petition, the 1 st respondent is a state corporation established under section3 of the Copyright Act and with the power to sue and be sued in its own corporate name. There is no single allegation made against the 2 nd Respondent that it violated or how it violated the petitioner’s rights. Apart from simply stating in the reliefs that the respondents violated the petitioner’s rights, no pleading mentions how the 2 nd respondent could have violated or threatened the petitioner’s rights with violation.
49. Under rule 5 of the Mutunga Rules, and in view of the definition of who a respondent is under Rule 2 of the said Rules, in constitutional litigation, if a petition fails to disclose a cause of action, clear allegations of rights violations, or specific reliefs against a particular respondent, the court has the authority to strike out that respondent from the petition.
50. In African Centre for Corrective and Preventive Action & 31 others v Google Kenya Limited & 4 others; Ideate Tech Policy Africa Limited (Amicus Curiae) (Petition E068 of 2023) [2026] KEHC 7021 (KLR) (Constitutional and Human Rights) (20 May 2026) (Ruling), this Court had occasion to discuss whether a respondent against whom no allegation of violation of rights was made should be struck off the petition and the Court stated:
“24.In the present petition, this Court has not been shown that the presence of the 5 th respondent is necessary in order for this court to completely and effectually determine all the issues raised in the petition. Differently put, this Court is unable to identify any issue that cannot be fully determined in the absence of the 5th Respondent.
25.I reiterate my earlier statement that parties should not be added to Court proceedings just to make the petition look good. A respondent should only be brought to court if there is an issue that needs their active and not passive participation.
26.In this case, the 5 th respondent is not just any other party, it is enjoined as a main respondent, not as an interested party or amicus curiae. Its continued presence in these proceedings must serve a useful legal purpose such that whereas this Court remains mindful that constitutional petitions should not be defeated by procedural technicalities, that principle cannot be stretched to justify indiscriminate joinder of parties against whom no cause of action is disclosed.
27.Rule 5 of the Mutunga Rules as cited above exists not only to facilitate access to justice, but also to shield parties from unnecessary and unjustified litigation, so that the 5 th respondent should not spent all the time in court simply saying that there is no allegation made against it, until the petition is heard and a decision rendered.
28.I am therefore satisfied that the 5th Respondent was improperly joined to these proceedings and that no reasonable cause of action has been disclosed against it. In the end, I find the application dated 10 th December, 2025, seeking to strike out the 5th Respondent from these proceedings to be merited. I allow it and proceed to strike out from the petition herein the name of the 5 th respondent.”
51. In this case, as no cause of action has been disclosed against the 2 nd Respondent, I find no reason to retain the 2 nd Respondent in these proceedings, noting that the striking out will not affect the merits of the petition and neither will be sus
[...truncated]