IP Case Law library

Facts

The case involved a constitutional petition filed by Laban Juma Toto and David Amunga against the Kenya Copyright Board (1st Respondent) and the Attorney General (2nd Respondent). The Music Copyright Society of Kenya (1st Interested Party) and the Music Publishers Association of Kenya (2nd Interested Party) were also involved in the matter, along with several other individuals who had joined as interested parties.

The petitioners sought various declarations and orders related to the decision of the 1st Respondent on 27th March 2017, which approved the licence to collect and distribute royalties to the 1st Interested Party. The petitioners argued that the decision was inconsistent with the Constitution and the Fair Administrative Action Act, and it violated their constitutionally protected freedom of association, right to protection of property, and right to fair administrative action.

The key issues raised in the petition included:

1. Inconsistency with the Constitution and Fair Administrative Action Act: The petitioners claimed that the decision of the 1st Respondent was inconsistent with the Constitution and the Fair Administrative Action Act, and was therefore null and void.

2. Violation of Constitutional Rights: The petitioners asserted that the decision infringed on their constitutionally protected freedom of association, right to protection of property, and right to fair administrative action as enshrined in Articles 36, 40, and 47 of the Constitution.

3. Lack of Public Participation: The petitioners argued that the decision was ratified without public participation, violating Article 10(2) of the Constitution of Kenya.

The orders sought by the petitioners included declarations of nullity, certiorari to quash the decision, and mandamus to compel the 2nd Respondent to appoint the Competent Authority under Section 48 of the Copyright Act. They also sought the costs of the petition.

Additionally, there was an application seeking the empaneling of a bench of not less than three judges to hear the matter, citing substantial issues related to the interpretation of the Copyright Act and the Fair Administrative Act.

Issues

Whether the petition raises ‘substantial questions’ to be determined by a bench of not less than three judges?

Rule

Martin Nyaga & Others v The Speaker County Assembly of Embu and others - A legal matter is deemed to have a substantial question of law if certain factors are present. These factors include whether the matter raises a novel point, is complex or requires a significant amount of time for resolution. Additionally, the impact of the prayers sought in the petition and the level of interest generated by the petition are considered relevant in determining whether a matter raises a substantial question of law.

Santosh Hazari v Purushottam Tiwari (2001) - The statement asserts that for a legal question to be considered substantial, it must be debatable and not conclusively settled by existing laws or precedents. A substantial question of law is one that is open to interpretation, has not been definitively addressed before, and is crucial to the outcome of the case concerning the rights of the involved parties. Essentially, it emphasises the necessity of genuine legal uncertainty and relevance for a question to be deemed substantial.

Analysis

The court conducted a comprehensive analysis to determine whether the petition met the constitutional threshold for certification as raising substantial questions of law. The key parameters considered are as follows:

Jurisdiction under Article 165(3)(b) or (d): The court confirmed that the petition falls within the ambit of Article 165(3)(b) and (d) as it involves alleged violations of fundamental rights and freedoms under Articles 19-24, 36, 40, and 47 of the Constitution, along with statutory provisions of the Copyright Act.

Impact on the Rights of Parties: The court recognised that the issues raised in the petition directly, indirectly, and substantially affect the rights of all parties involved, given the claims of violation or threatened violation of fundamental rights and the statutory provisions under the Copyright Act.

Open Question and Lack of Binding Precedent: The court noted that the issues raised in the petition are yet to be conclusively determined by the law, and there is no binding precedent from the Supreme Court. The matters are still debatable and open for interpretation.

Public Importance: Emphasising the public nature of the issues, the court acknowledged that the case goes beyond the interests of the parties, affecting the entire music industry in the country. The court recognized the need for common principles to be developed for similar cases.

Complexity and Time for Disposal: Considering the complexity of the issues and the extended duration of the cases (since 2015), the court acknowledged that the matters belong to a unique category under copyright law, requiring further scrutiny. The court also recognised the potential impact on the music industry and the need for time to resolve the issues adequately.

Constitutional Threshold for Certification: Despite the absence of submissions from certain parties, the court concluded that the petition met the constitutional threshold for certification. The court certified the matter as raising substantial questions of law under Article 165(3)(b) and (d) and referred it to the Chief Justice to empanel a bench of not less than three judges for the hearing.

Conclusion

The court deferred the decision on costs until the outcome of the petition. Overall, the court's analysis led to the certification of the matter as having significant legal implications and deserving an in-depth examination by an appropriate judicial panel.

The court's decision to empanel a bench of not less than three judges for the case of Laban Juma Toto & another v Kenya Copyright Board & 13 others reflects a nuanced understanding of the complexities involved in copyright law and the protection of constitutional rights. The determination that the issues presented raised substantial questions of law is particularly commendable given the impact of the decision on the broader creative industry and the precedents it may set for the interpretation of the Copyright Act alongside fundamental freedoms enshrined in the Constitution.
Ruling to be found here