It is a big win for musicians and singers after the High Court has dismissed a petition by the Music Copyright Society of Kenya (MCSK) seeking to collect royalties on their behalf.
In a ruling delivered by Justice Josephine Mongare of the Commercial and Tax Division, the court struck out MCSK’s petition, stating that it lacked jurisdiction to hear the matter.
The judge also vacated the conservatory orders issued in June 2024 which had temporarily allowed MCSK to collect royalties for Musicians and singers and issue licenses for copyrighted music.
While dismissing the lawsuit, Justice Mongare explained that MCSK had prematurely moved to court without first exhausting the established dispute resolution mechanisms outlined in the Copyright Act, 2001.
The Act provides a clear path for resolving such disputes before appealing to the High Court, and MCSK had bypassed this process by filing directly with the court.
“MCSK prematurely filed the petition, violating the doctrine of dispute exhaustion, as the Copyright Act, 2001 provides an elaborate dispute resolution mechanism prior to any appeal at the High Court,” Justice Mongare stated.
This ruling effectively nullifies the temporary orders issued by Justice Mongare on June 18, 2024, which had allowed MCSK to continue collecting and licensing royalties.
The decision now strips MCSK of its authority to collect royalties or issue licenses to users of music until the dispute is resolved through the appropriate channels.
In its petition, MCSK had also sought an order to prevent the Performing and Audio-Visual Rights Society of Kenya (PAVRISK) from collecting royalties for MCSK members.
PAVRISK, the only licensed Collective Management Organization (CMO) authorized by the Kenya Copyright Board (KECOBO), had been granted the sole right to collect royalties for all music and audio-visual rights holders in Kenya after a competitive process held in June 2024.
MCSK, in a suit filed by Wachira and Mumbi Advocates, had named KECOBO and its officials as respondents, with PAVRISK listed as an interested party.
MCSK sought to restrain PAVRISK from using its license to collect royalties on behalf of MCSK’s members, arguing that it had the legal right to continue collecting royalties based on its previously issued license, which expired in June 2024.
However, KECOBO defended its decision to grant PAVRISK an all-inclusive operating license, asserting that the process was competitive and transparent.
KECOBO further argued that MCSK had failed to follow the proper procedure by not seeking resolution at the Copyright Tribunal, which is the statutory body tasked with handling such disputes.
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KECOBO’s legal team emphasized that MCSK’s failure to exhaust the dispute resolution process effectively deprived the High Court of jurisdiction to hear the case.
They argued that MCSK should have challenged the denial of its application for an all-inclusive license at the Copyright Tribunal before moving to the High Court.
PAVRISK, now the sole licensed CMO, is empowered to collect and distribute royalties for musicians and audio-visual rights holders in the country.