Copyright Infringement
Jeffrey Ndungi Sila v Kenya Copyright Board, Multichoice Kenya Limited, Frederick Saramba [2018] Petition No 541 of 2015
Facts
The Petitioner's residential premises in South B, Nairobi, were subjected to multiple searches and seizures by officers from the Kenya Copyright Board and Multichoice Kenya Limited. The Petitioner claimed that these actions were illegal, causing extensive damage to his property during the first search on May 20, 2014. Subsequent searches on September 26, 2014, and March 18, 2015, were also contested by the petitioner.
The petitioner argues that the searches violated his constitutional rights, asserting that he neither infringed the Copyright Act nor committed any crime. Criminal charges were filed against the petitioner in connection with these incidents, with some cases still pending.
The reliefs sought by the petitioner include declarations that the searches and seizures violated his fundamental rights, including the right to equal protection, human dignity, privacy, and protection of property. The petitioner also sought declarations regarding the illegality of the confiscation of personal items, the actions of the officers and the third respondent, and the constitutionality of search warrants. Additionally, the petitioner sought injunctions, damages, costs, special damages, and interest on monetary awards.
Issue
- Whether the petitioner’s rights were violated?
- Whether the petitioner was entitled to special damages?
Rule
Whether the petitioner’s rights were violated?
Anita Karimi Njeru v Republic - a party who comes to Court on account of violation of rights and fundamental freedoms must plead with precision the Articles of the Constitution allegedly violated, the rights to have been infringed, the manner of infringement and the jurisdictional basis
Article 31 of the Constitution - every person is guaranteed the right to privacy. However, Article 24 of the Constitution status that rights or fundamental freedoms may be limited only if limitation is reasonable and justifiable in an open and democratic society
Section 35 (1) of the Copyright act - (1) Copyright shall be infringed by a person who, without the licence of the owner of the copyright—(a) does, or causes to be done, an act the doing of which is controlled by the copyright; or (b) imports, or causes to be imported, otherwise than for his private and domestic use, an article which he knows to be an infringing copy
Section 39 of the Copyright act - Kenya Copyright Board may appoint inspectors who may at any reasonable time and with certificate of authority enter any premises for the purpose of ascertaining whether there has been violation of the Copyright Act.
Section 42 of the Copyright Act - police officers may arrest a person without a warrant any person suspected with reasonable grounds of having committed an offence under the Copyright Act
Whether the petitioner was entitled to special damages?
Capital Fish Kenya Limited v The Kenya Power and the Lighting Company Limited - special damages must not only be specifically pleaded, they must also be strictly proved with as much particularity as circumstances permit
Analysis
Issue 1
The Court found there had been no infringement of the petitioner’s rights. The officers were authorised by the Kenya Copyright Board and had reasonable grounds to believe there was copyright infringement being committed, their suspicions were confirmed by the incriminating material found at the Petitioner’s residence.
Issue 2
The petitioner's failure to substantiate the alleged damages with itemised evidence and receipts or estimates reflecting the cost of repairs or replacements significantly weakens his claim.
The burden of proof for special damages is stringent because it requires a clear causal link between the action and the harm suffered, which must be directly quantifiable. The petitioner's broad assertions and lack of detailed documentation fail to meet this high standard of proof, suggesting that while he may have experienced inconvenience or distress, these do not automatically translate to compensable special damages under the law.
The court's decision in the case of Jeffrey Ndungi Sila v Kenya Copyright Board & 2 others offers a detailed interpretation of the legal boundaries within which state and quasi-state entities operate in enforcing copyright laws. The court upheld the legality of the searches and seizures conducted by the Kenya Copyright Board and Multichoice Kenya Limited, but the reasoning behind this merits further scrutiny.
Firstly, although the court rightly applied the provisions of the Copyright Act that empower the Board to enter premises and seize infringing items, it appears to have insufficiently considered how these powers were executed. The petitioner’s complaints about extensive property damage and the potentially aggressive nature of multiple searches could suggest an excessive exercise of power, not aligned with the mandate that such searches be conducted "reasonally." The principle that such powers must be exercised reasonably, especially when they infringe fundamental rights such as privacy and human dignity, is crucial to constitutional protections.
Secondly, in handling the claim for special damages, the court's decision to demand stringent proof, while legally justified, may disregard the practical difficulties faced by individuals in these situations. The expectation for detailed documentation may not align with the chaotic realities of a forcefully conducted raid, where documenting damages may be secondary to dealing with the immediate emotional and financial impacts.
Critically, the court seems to have implicitly trusted the claims of the enforcement officers over the petitioner’s narrative without a thorough examination of the proportionality and necessity of the force used during the raids. This approach could establish a precarious precedent, setting the bar for proving state or corporate overreach disproportionately high for ordinary citizens.
Conclusion
The Court found no violation of the petitioner’s rights nor that he suffered any damage.
Judgment to be found here