The question now put to everyone in the chain is no longer who owns the work, but who failed to ask. Kimani v Safaricom Limited & 2 others; Music Copyright Society of Kenya & another (Third party) [2023] KEHC 20085 (KLR) | Primary Pictures Limited v Kramer (Civil Appeal E1388 of 2024) [2026] KEHC 9976 (KLR)
Three decisions, three years apart, settle a question Kenyan creators have long asked; who must confirm that the rights are in order before a creative work is turned to profit? The answer now reaches past the platform, to the agency, the brand and the creator who presses post.
The Foundation: Diligence Became the Price of Exploitation
In Kimani v Safaricom Limited & 2 others [2023] KEHC 20085 (KLR), the artiste known as Mr. Bamboo complained that three of his songs were sold as caller ring back tones on Skiza Tunes between 2009 and 2014. Safaricom had taken them from two content providers, who relied in turn on a copyright society and a licensing company.
Ongeri J found all three liable, and the reasoning turned on diligence. Having exploited the songs, they could not point upstream, as it was their duty to confirm that the artiste had assigned his rights, and they ought to have held contracts duly executed by the artistes. Unauthorised use, the Court observed, had left artistes at the mercy of those who harvest where they have not worked. None produced records of earnings. Damages were assessed at Kshs. 1,500,000 per song, Kshs. 4,500,000 in all, jointly and severally, with liberty to pursue the third parties for indemnity, a remedy against the suppliers and no answer to the artiste.
A Docket Full of Household Names
What began as one artiste’s suit has become a pattern. The following disputes are reported:
- Sauti Sol v Crystal Asige (Kshs. 5 million KLM deal, 2019).
- Nyashinski v Sam Eli (Kshs. 12 million Tecno deal).
- Jemimah Wa Thiong’o v Safaricom (Kshs. 15 million, 39 songs on Skiza Tunes).
- Peter Oyier v Safaricom (Kshs. 69 million for the use of his voice).
- P Unit v Kenya Commercial Bank (Kshs. 30 million jingle claim, lost and on appeal).
- Mutoriah v Foi Wambui & Oppo (the song Beta in a marketing campaign).
The defendants span a telecommunications company, a bank, a smartphone brand and fellow artistes, and every use complained of is commercial.
The Influencer Who Could Not Be Struck Out
Ms Wambui was paid Kshs. 600,000 to promote the Oppo Reno 12 5G and posted a skit set to Mutoriah’s song Beta. He had not licensed it, and sued after his demand for an apology was rejected. She applied to be struck out as an independent contractor engaged through a marketing agency, saying Oppo approved content before posting and owed the duty of clearance. Oppo replied that it had neither contracted her nor chosen the song. Magistrate Hosea Mwangi dismissed the application with costs. The pleaded facts disclosed a reasonable cause of action against all the defendants, and whether she ought to have sought a synchronisation licence cannot be determined on an interlocutory application.
A Chat Can Bind You, But It Cannot Assign Copyright
Primary Pictures Limited v Kramer (Civil Appeal E1388 of 2024) [2026] KEHC 9976 (KLR) is not a copyright case, but it belongs here. A film editor claimed Kshs. 678,403 for work on a Netflix trailer with no signed contract, and the Small Claims Court inferred one from calls, messages and performance. Mrima J dismissed the appeal on 9th July 2026: no general rule requires agreements to be in writing.
Copyright keeps a stricter rule. Section 33 of the Copyright Act requires an assignment, and any exclusive licence, to be written and signed by or for the grantor, while non-exclusive licences may be oral or inferred from conduct. A commissioner may therefore owe payment on the strength of a chat and still never acquire the rights it paid for.
The Direction of Travel
Those who commercially exploit a work must verify the chain of title before use, not after a complaint. Liability is tested at every level of that chain, from platform and content provider through agency to influencer. And the disputes turn on contracts that, for years, were informal and poorly documented.
PRACTICAL IMPLICATIONS
- Platforms, telecommunications operators and distributors: obtain and keep the executed assignment or licence from the artiste. A supplier’s warranty, an indemnity or a collecting society’s confirmation of membership will not protect you against the artiste, as shown in Kimani v Safaricom Limited & 2 others.
- Brands and agencies: state in the contract who clears the music and who holds the synchronisation licence, and require proof of clearance before anything is published. A brand that reserves the right to approve content should expect to be asked what it approved.
- Influencers and content creators: do not assume that music in sponsored content is the brand’s problem. Ask for written confirmation of clearance before posting, and negotiate an indemnity that says plainly who bears the risk.
- Artistes: record the deal, and the rights passing under it, in a signed written instrument, and keep proof of authorship. A WhatsApp exchange can bind a party to pay or deliver, but it should not be the only record of who owns the work.
Copyright in Kenya is no longer a question asked after the campaign has launched. The courts are asking it first, and they are asking everyone in the chain.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set out in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact our W&A Intellectual Property Law Department.
About the author
Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.
Peris is a results-driven and disciplined legal professional committed to delivering exceptional value to clients. With expertise across various legal fields, she provides strategic legal solutions tailored to diverse client needs. Her strong interpersonal skills, dedication, and meticulous approach to legal practice enable her to navigate complex legal matters effectively.
