Nyadida v Equity Bank (Kenya) Limited & 4 others (Petition 2 of 2019)  KEHC 14416 (KLR) (Commercial and Tax) (13 October 2022) (Judgment)
Neutral citation:  KEHC 14416 (KLR)
Republic of Kenya
Petition 2 of 2019
WA Okwany, J
October 13, 2022
Eric Obiero Nyadida
Equity Bank (Kenya) Limited
Equity Group Foundation
Director of Public Prosecutions
National Police Service
1.The petitioner is an adult male of sound mind a citizen of the Republic of Kenya a resident of the City of Nairobi within the County of Nairobi within the Republic of Kenya . His address for the purpose of this petition shall be care of Khaminwa & Khaminwa Advocates, George Padmore Road. Off Marcus Garvey Road, P.O. Box 43758- 00100 Nairobi.
2.The 1st respondent is a limited liability company incorporated in Kenya under the provisions of the Companies Act (repealed) of the Laws of Kenya duly issued with a licence by the Central Bank of Kenya to operate a bank in the Republic of Kenya with its head office located in the City of Nairobi in Equity Centre Building. Service of this petition upon it shall be effected by the petitioner’s advocate office.
3.The 2nd respondent describes itself as a not for profit implementing foundation created by the 1st respondent as part of the 1st respondent’s community service responsibility program with their office also located in Equity Centre Building. Service of this Petition upon it shall be effected by the petitioner’s advocate office.
4.The 3rd respondent is a constitutional officer allowed under the provisions of Article 157(1) of the Constitution of Kenya with his powers and functions better defined Section 5 of the Office of the Director of Public Prosecutions Act 2013. Service of this petition upon it shall be effected by the petitioner’s advocate’s.
5.The 4th respondent is the Inspector General of Police who is a state officer in command of the National Police Service under Article 245(1) of the Constitution with his functions and duties better defined under the provisions of Section 10 of the National Police Service Act 2011. The 4th respondent has under his control among others the Officer Commanding the Banking Fraud Investigate Unit and the Officer Commanding the Kileleshwa Police Station located within the City of Nairobi. Service upon him shall be effected by the petitioner’s advocate offices.
6.The 5th respondents is a Constitutional Officer allowed under the provisions of Article 156 of the Constitutional of Kenya the Principle Legal Advisor to the Government of the Republic of Kenya whose office is in Sheria House located within the City of Nairobi within the aforesaid Republic. Service of this petition upon him shall be conducted by the advocates of the petitioner.
The Petitioner’s Case
7.The Petitioner herein, Eric Obiero Nyadida, sued the respondents through the Petition dated 6th February 2019 seeking the following orders: -a.A conservatory order directed against the 1st and 2nd respondents restraining them from any further use of the petitioner’s work of music;b.A declaration that by the acts and/or omission on the part of the respondent the petitioner’s Fundamental Rights and Freedoms have been breached and continue to be breached.c.A declaration that the petitioner is due damages to be quantified by this court as a result of the breach of his Constitutional rights .d.A declaration that the petitioner is due damages from the 1st and 2nd respondent to be quantified by this court as a result of the breach of his Constitutional Rights to his intellectual property created by his musical work Wings to Fly.e.Costs and interests
8.The Petitioner states he is a fully paid up member of the Music Copyright Society of Kenya Limited holding membership number 8015 and that on 14th May 2013 he registered the following songs with the said society; "Running", "Flame Docks" and Wings to Fly".
9.The Petitioner’s case is that sometime in May 2013, he approached the 1st Respondent with a proposal to publicize the 1st and 2nd Respondents’ education program dubbed “Wings to Fly” after which the Petitioner agreed to compose an original musical piece to be used by the 1st Respondent to advertise the 2nd Respondent for valuable consideration.
10.The Petitioner avers that he presented his musical piece, “Wings to Fly” to the 1st Respondent who agreed to purchase it for the sum of Kshs 10,000,000. He states that the 1st respondent later reneged on its promise to buy the music and instead caused his arrest and prosecution with the offence of Forgery by the 4th and 3rd Respondents respectively in Criminal Case No. 691 of 2015 Republic vs Geofrey Nyadida Odongo and Eric Obiero Nyadida.
11.The Petitioner states that he was acquitted at the close of the criminal proceedings wherein the trial court, in the judgment rendered on 3rd October 2017, found the Petitioner and his brother/co-accused not guilty of the charges.
12.Aggrieved by the actions of the Respondents, the Petitioner filed this petition seeking damages for the violation of his constitutional rights the particulars of which he listed to be as follows: -a.That the 1st Respondent intimidated and harassed the Petitioner by taking an active role in ensuring that he was arrested and charged in court.b.That the 1st and 2nd Respondent violated the Petitioner’s copyright to his music.c.That the 3rd Respondent prosecuted the Petitioner in a Court that is not the Children's Court yet he was a minor at the time of his arrest and presentation in Court in violation of Article 53 (2) of the constitution and Section 73 (b) of the Children’s Act.d.That the 4th Respondent locked up the Petitioner, who was at the time of his arrest a minor, at Kileleshwa Police Station in a Cell with adults contrary to the provisions of Article 53 (1) (f) (ii) of the Constitutione.That the 1st Respondent used its position and influence to instigate criminal charges against the Petitioner in a bid to enable the 1st and 2nd Respondents gain commercial advantage against the Petitioner.
13.At the hearing of the case, the Petitioner (PW1) narrated the genesis of his dispute with the 1st and 2nd Respondents. He testified that he was, on or about the year 2013, a high school student aged 16 years old when he started his music career. He stated that his manager, one Mr. John Kennedy secured for him a contract to produce a song to promote the 1st and 2nd respondents’ ‘Wings to Fly’ program, an initiative that supports the education of needy children. He stated that the management of Equity Bank (the Bank) liked his music and proposed to offer him a scholarship in exchange for the rights to the music which proposal his parents did not accept after which the bank offered to pay him Kshs. 10,000,000. He added that to their surprise, the bank reviewed their offer downwards to Kshs. 2.5 Million and started to use his songs in their advertisements before finalizing the deal.
14.PW1 testified that after several correspondence with the bank, he received a letter from the bank’s legal department warning him the bank’s intention to take legal action against him and his brother one Geoffrey Odongo Nyadida, on allegations of commission of an undisclosed criminal offence. In the said correspondence, the bank requested the Petitioner and his said brother to go to their offices to record a statement.
15.The petitioner testified that upon going to the bank in the company of his said brother, they were unlawfully detained in the bank’s premises for at least 12 hours before being handed over to the police. He stated that the police violated his rights, as a minor, as he was held in a crowded cell together with adults without access to a lawyer. He added that they were, on 16th April 2015, charged with the offence of attempting to defraud Equity Bank of Kshs. 10 Million. He explained that the trial in the criminal case went on for about 3 years but that they were eventually acquitted on 3rd October 2017.
16.The petitioner’s case was that the bank continues to use his song to advertise its program ‘Wings to Fly’ without his consent, and have refused to pay him for the rights to the music thus necessitating this court action. The petitioner produced the following documents as exhibits in this case: -i.Proceedings and judgment in the criminal case.ii.Birth certificate which indicates that the petitioner was born on 30th June 1997.iii.Letter from the Music Copyright Society dated 4th December 2018 showing that the petitioner’s copyright was registered on 14th May 2013.iv.The petitioner’s proposal to the bank.v.Printout of telephone communication between the bank and the petitioner’s mother.vi.Demand letter to the bank’s CEO informing him that the bank was using the petitioner’s song without paying for it.vii.The disks containing the subject music and the handwritten lyrics.
17.On cross examination, the petitioner testified that he is a talented song writer and that the song that is the subject of this suit together with the add theme was produced by Home Boys Studios and registered by the Music Copyright Society of Kenya. He stated that he compared his song with the song add theme that the bank uses to advertise its program, “Wings to Fly’ and noted that it has at least 10 features with the same theme song. He maintained that the bank copied the song used in their advert from his theme song and did not pay for it. He further stated that the bank deleted all the email correspondence that it had with him after irregularly obtaining his password. It was his case that the bank agreed to buy his song for Kshs. 2.5 Million and that he signed an agreement to that effect but that the contract document was not given to him.
18.On further cross examination, the petitioner produced bundle of documents containing print outs from an online company, the Verge, explaining the meta data of the song in question. The petitioner sought to be compensated for the use of his music without his consent.
19.At the close of the hearing, the petitioner’s counsel filed written submissions wherein he argued that the Affidavit of Service filed on the 28th February 2019 was proof of the petition on all the respondents yet the 3rd to 5th Respondents did not file any responses. It was therefore the petitioner’s case that his averments against the said respondents were uncontested and that the petition against them should be allowed as prayed. It was submitted that the 3rd Respondent's failure to oppose the Petitioner's Petition meant that the Petitioner's averments and evidence was uncontroverted. For this argument, the petitioner relied on the provisions of Rule 28 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 which provides that:-
20.The petitioner faulted the 3rd to 5th respondents for unlawful arrest, malicious prosecution and for violating his rights under Section 73 of Children's Act which provides that the Petitioner, being a minor, could only be charged before a Children's Court.
21.On the claim of malicious prosecution against the 1st and 2nd respondents, the petitioner submitted that he was a party to a commercial transaction with the 1st respondent who turned around to accuse him and his brother on trumped up charges of fraud when he demanded to be paid for the use of his song. For this argument the petitioner cited the decision in Gitau vs. Attorney General [19901 KLR 13 where the court held as follows on malicious prosecution:-
22.Regarding the breach of intellectual property rights, the petitioner submitted that he had demonstrated, through annexures "EON — 17A" that he created and registered the work/music in question using his own skill, intellect, labour and endevour. The Petitioner reiterated that as concerns the said work, he is regarded as the author and creator of the intellectual property as defined under Section 2 (a & b) of the Copyright Act 2001 which is protected under Article 40 of the Constitution.
23.Regarding the consequence of his acquittal, the petitioner submitted that following the collapse of the criminal case against him, it follows that the document he was accused of forging is a valid document from the 1st and 2nd Respondents who cannot therefore escape from liability for using the Petitioner's work without compensating him as agreed.
24.The Petitioner therefore submitted that with his acquittal connoted that the said Respondents are estopped from denying the Petitioner's claim. Reference was made to the decision in Titus Muiruri Doge v Kenya Canners Ltd [19881 eKLR where it was held as follows on the issue of estoppel:-
25.The petitioner submitted that the 1st and 2nd Respondents knew that the petitioner was a minor and took advantage of his tender age to deny him his right to payment for his creative works. He maintained that the respondents’ actions were deliberate in nature and was intended to defraud and divest him of his rights.
The 1st and 2nd Respondents’ Case
26.The 1st and 2nd respondents opposed the Petition through the joint Replying Affidavit sworn by the 1st respondent’s Senior Communication Manager Mr. Edward Muchai.
27.The 3rd, 4th and 5th respondents did not file any responses despite service with the Petition.
28.In addition to the Replying Affidavit, the 1st and 2nd Respondents also presented the oral testimony of the said Mr. Edward Muchai (DW1), who testified that he knew the petitioner having met him sometime in 2013 when he came to his office with music in a CD which he wanted him to listen to. He confirmed that he listened to the song which had the lyrics ‘Wings to Fly’ after which he informed the petitioner that the song could be used by the Equity Group Foundation. He then directed the petitioner to one of their offices on the 8th Floor of the bank’s building for further assistance.
29.DW1 denied the claim that petitioner’s song ‘Wings to Fly’ features in the music bed used by the bank to advertise its program ‘Wings to Fly’. He explained that the bank’s advertisement features the music ‘Reunion’ which is done on a software that the bank bought from Apple Company. He testified that the software comes with the music authored by the patent holders of the software. He produced the metadata for the ‘Reunion’ song and added that according to the metadata, the copyright belongs to Apple Incorporated even though authored by APM Music.
30.The respondent’s witness stated that the petitioner’s song was not an original song but an extraction of the ‘Reunion’ song and added that the bank would present the evidence of an expert witness to prove his claim. He denied the allegation that he signed any agreement with the petitioner and the claim that the bank entered into any agreement to buy his music. He maintained that the signature on the alleged agreement was a forgery.
31.DW1 confirmed that he had listened to the petitioner’s song and noted that it sounded similar to the music bed or signature tune that the bank uses in its feature. He confirmed that the beats of the music are close/similar to the ‘Reunion’ song that the bank used in its advertisement. He however noted that an expert, one Mr. Philip Tuju, issued a report indicating that the ‘Reunion’ song cannot be said to be one and the same as the Petitioner’s music.
32.On cross examination, DW1 confirmed that he met the petitioner in 2013 when they held a discussion over the possibility of the bank using the petitioner’s song dubbed ‘Wings to Fly’ after which he directed the petitioner to the 2nd respondent’s offices on the 8th floor of the bank’s building. He also confirmed that the 2nd respondent was in charge of the Wings to Fly’ program, a foundation that sponsors bright scholars from needy backgrounds. He denied the allegation that he signed any contract with the petitioner but that he later saw a copy of an alleged contract at the bank’s security office. He also denied the allegation that the bank instituted criminal proceedings against the petitioner but confirmed that he was a witness in the said criminal case.
33.He maintained that the features for the 2nd Respondent’s Wings to Fly Program used the “Reunion” was part of a library of tunes contained in software suite known as iLife that the 1st Respondent purchased from Apple through their reseller Elite Digital solutions in 2013.
34.In cross-examination, DW1 confirmed that prior to the service of the Petition upon the 1st and 2nd Respondents, he had not heard the song “wings to fly ad theme song” contained in the music disc produced by the plaintiff as Exhibit EON-17A. He further stated that he does not have the authority to enter into contracts on behalf of the 1st and/or 2nd Respondents as alleged or at all.
Analysis and Determination
35.I have considered the pleadings filed by the parties herein, the oral and documentary evidence that they presented together with the written submissions. I find that the main issue for determination is whether the petitioner has made out a case for the granting of the prayers sought in the petition. I have already noted at the beginning of this judgment that the petitioner mainly seeks conservatory orders to restrain the respondent from using his work of music; a declaration that the respondents breached the petitioner’s fundamental rights and freedoms; a declaration that the petitioner is entitled to damages for breach of his constitutional and intellectual rights to his music; costs of the suit.
36.The petitioner’s case was that he was the creator of the music/tune, ‘Wings to Fly’ which music he produced and presented to the 1st Respondent’s Senior Communication Manager, Mr. Edward Muchai at his offices situate on the 6th Floor of the Equity Bank Building. Mr. Muchai listened to the song, liked and requested him to write a proposal to be presented to the bank’s CEO. Without repeating the petitioner’s entire evidence, which I have already summarized in this judgment, a summary of the petitioner’s case is that not only did the 1st and 2nd respondent end up using his song in their advertisement, without his consent and without paying him as agreed, but that they also initiated malicious prosecution against him and his brother one Geoffrey Odongo Nyadida.
37.The 1st and 2nd respondent’s sole witness, Mr. Edward Muchai, did not deny that he met the petitioner, had an opportunity to listen to his music, which he liked/appreciated and confirmed that the bank could use it in its adverts. DW1 testified as follows on his first encounter with the petitioner:-
38.At the hearing of the case, the petitioner produced a letter from the Music Copyright Society to show that his copyright was registered on 14th May 2013. He also produced a copy of his proposal to the bank, printout of the telephone communication between his mother and the bank, the disks containing the music and the demand letter to the bank’s CEO informing him that the bank was using the music without paying for it. The petitioner testified that he compared his music with the song ad theme that the bank uses to advertise its program, ‘Wings to Fly’ and noted that it is similar to his and has at least 10 features with the same theme song. He maintained that the bank copied the music used in their advert from his theme song and did not pay for it.
39.DW1 testified that the bank purchased the ‘Reunion’ tune/music that it uses in the advert from Apple Company through a vendor known as Elite Digital. According to DW1, the ‘Reunion’ tune was picked from a collection of 5000 other tunes that came with the software that the bank purchased from Apple. He testified as follows regarding the petitioner’s claim that the bank used his music ‘Wings to Fly’ without paying for it:-
40.From the above extract of the respondent’s witness’s testimony, it is clear that the music that the bank alleges it purchased from Apple Company is similar to the music that the petitioner presented to DW1. It is also apparent that there was a contradiction in the testimony of the respondent’s witness as while on one hand he stated that he listened to the petitioner’s music for the first time in 2013 when the petitioner presented it to him in his office, on cross examination, he stated that he heard the tune for the first time in 2019. Furthermore, even though DW1 testified that the bank engaged an expert to distinguish the difference between the ‘Reunion’ song from the petitioner’s ‘Wings to Fly’ song and to determine when the songs were released and by which artist, no such expert was presented in court to shed light on the matter. The respondent’s witness however referred to the report made by one Mr. Phillip Tuju who alleged that the ‘Reunion’ song was published in February 2008.
41.My finding is that the expert’s report presented by DW1 falls short of the probative value and test expected of an expert witness’s report as it was not presented by the maker whose evidence would have been subjected to cross examination to confirm its veracity.
42.This court had a chance to listen to the petitioner’s music ‘Wings to Fly’ when the same was played in court during the hearing. I noted that there was a striking similarity between the said song and the one used by the bank in advertising its program, also dubbed ‘Wings to Fly’. My finding is that it cannot be a coincident that out of almost 5000 tunes/songs that the 1st and 2nd respondents alleged that they purchased from Apple, they ended up choosing a song that has an uncanny similarity to the song that the petitioner presented to DW1 during their meeting held in 2013.
43.Section 35 of the Copyright Act provides as follows:-
44.Having regard to the above section, I find the petitioner proved, on a balance of probabilities, that the 1st and 2nd respondents used and have been using the music that he created without his consent and without paying him for it thus breaching his intellectual property rights.
45.Turning to the petitioner’s claim over malicious prosecution, I note that it was not disputed that the parties herein had interacted and reached an understanding when the respondents requested the petitioner to write a proposal on the use of his song to promote the respondents’ scholarship program. It is against this backdrop that the petitioner went to the respondents’ offices, upon learning that his song was being used by the respondents, to enquire about his payments when he was arrested and detained by the respondents’ security officers before being handed over to the police who then charged him in court with the offence of forgery. The petitioner was eventually acquitted of the criminal charges. I find it quite unfortunate that the respondents, who should have been in the forefront in promoting young talents went ahead to dim the petitioner’s hopes by arresting him when all he did was pursue the rights to his music.
46.The law governing the tort of malicious prosecution was stated by the East African Court of Appeal in Mbowa vs East Mengo District Administration EA 352, where the judges expressed themselves as follows:-a.“The action for damages for malicious prosecution is part of the common law of England….The tort of malicious prosecution is committed where there is no legal reason for instituting criminal proceedings. The purpose of the prosecution should be personal and spite rather than for the public benefit. It originated in the medieval writ of conspiracy which was aimed against combinations to abuse legal procedure, that is, it was aimed at the prevention or restraint of improper legal proceedings…… It occurs as a result of the abuse of the minds of judicial authorities whose responsibility is to administer criminal justice. It suggests the existence of malice and the distortion of the truth.b.It’s essential ingredients are:c.The criminal proceedings must have been instituted by the defendant, that is, he was instrumental in setting the law in motion against the plaintiff and it suffices if he lays an information before a judicial authority who then issues a warrant for the arrest of the plaintiff or a person arrests the plaintiff and takes him before a judicial authority;d.The defendant must have acted without reasonable or probable cause i.e. there must have been no facts, which on reasonable grounds, the defendant genuinely thought that the criminal proceedings were justified;e.The defendant must have acted maliciously in that he must have acted, in instituting criminal proceedings, with an improper and wrongful motive, that is, with an intent to use the legal process in question for some other than its legally appointed and appropriate purpose; andf.The criminal proceedings must have been terminated in the plaintiff’s favour, that is, the plaintiff must show that the proceedings were brought to a legal end and that he has been acquitted of the charge……g.The plaintiff, in order to succeed, has to prove that the four essentials or requirements of malicious prosecution, as set out above, have been fulfilled and that he has suffered damage.h.In other words, the four requirements must “unite” in order to create or establish a cause of action. If the plaintiff does not prove them he would fail in his action. The damage that is claimed is in respect of reputation but other damages might be claimed, for example, damage to property…..The damage to the plaintiff results at the stage in the criminal proceedings when the plaintiff is acquitted or, if there is an appeal, when his conviction is quashed or set aside. In other words, the damage results at a stage when the criminal proceedings came to an end in his favour, whether finally or not. The plaintiff could not possibly succeed without proving any or all of the first three essentials of malicious prosecution without the fourth which forms part of the cause of action, would not take him very far. He must prove that the court has found him not guilty of the offence charged…..i.The law in action for malicious prosecution has been clearly defined and in so far as the ordinary criminal prosecution is concerned the action does not lie until the plaintiff has been acquitted of the charge.
47.Taking a cue from the dictum in the above cited case, I find that considering the relationship, the understanding and the correspondence that the respondents had with the petitioner who was at the time a minor, the action, by the respondents, to detain him for hours on end and later hand him over to the police was extreme and uncalled-for. The respondents’ conduct lends credence to the petitioner’s claim that they took advantage of his age and status to intimidate and harass him in a bid to discourage him from pursuing his intellectual rights over his music.
48.I find it quite ironical, that the respondents, who through their program ‘Wings to Fly’, promote the education of bright needy students could choose to treat the petitioner, who was himself a student, in such a cruel manner. In my considered view, the respondents could have employed other means to amicably settle the differences that they may have had with the petitioner over the music contract instead of involving the police in the matter.
49.I listened to the petitioner’s testimony and observed his demeanour, he struck me as an intelligent and truthful young person whose evidence was not impeached, even of stringent cross examination by the respondent’s counsel, Mrs. Okimaru. The respondent’s witness, on the other hand, gave shaky and contradictory evidence especially in respect to the issue of when he first heard the plaintiff’s song. I also find the explanation offered by DW1 on how the bank officers dealt with the petitioner when he first visited their offices to be quite unsatisfactory. I am satisfied that the petitioner proved his claim, on malicious prosecution against all the respondents to the required standards.
50.For the reasons that I have stated in this judgement, I find that the petitioner proved his case against the respondents jointly and severally and I therefore enter judgment in his favour as follows:-a.A conservatory order is hereby issued against the 1st and 2nd respondents to restrain them from using the petitioner’s work of music, ‘Wings to Fly’.b.A declaration is hereby issued that by their acts and/or omission the respondents breached the petitioner’s fundamental rights and freedoms.c.I award damages of Kshs. 250,000 to the petitioner against all the respondents jointly and severally for malicious prosecution.d.I award damages of Kshs. 5,000,000 to the petitioner against the 1st and 2nd respondents for breach of the petitioner’s intellectual property rights.e.I award the petitioner the costs of this suit together with interest on c) and d) hereinabove at court rates.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF OCTOBER 2022.W. A. OKWANYJUDGEIn the presence of: -Dr. Khaminwa for the Petitioner.Mrs Okimaru for 1st and 2nd respondent.Court Assistant- Sylvia