When a dispute lands on the desk of a registration body, there is often a temptation for that body to simply resolve it, particularly where the parties are unlikely to sort things out themselves and a swift administrative fix looks like the path of least resistance. The Copyright Tribunal’s decision in Aryeh Movement Limited v Akoth & another is a firm corrective to that instinct. It holds that the Kenya Copyright Board (KECOBO) overstepped its statutory role when it tried to use its power to correct errors in the Copyright Register as a vehicle for resolving a genuine, contested dispute over authorship. The case has attracted attention for its obiter discussion of AI-generated works but its actual holding and the one binding on the parties, is a cleaner, more classical administrative law point about jurisdiction.
The Facts
Cynthia Beldina Akoth complained to KECOBO that Aryeh Movement Limited had caused certain literary works to be registered in Aryeh’s name without her knowledge or consent. By a letter dated 15th June 2025, KECOBO invoked Regulation 4(7) of the Copyright Regulations, observed that no publishing agreement existed between the parties and directed them to reach a written agreement on the percentage of copyright interest within seven days. Failure to comply would result in the expunging of the registered work from the Copyright Register entirely.
Aryeh appealed to the Copyright Tribunal under section 21(1) of the Copyright Act, arguing that KECOBO had acted ultra vires and that Akoth’s authorship was itself disputed. Akoth opposed the appeal: she contended it was defective for want of a supporting affidavit and premature as it challenged a threatened future act rather than a final decision. The Tribunal rejected both objections. No provision of the Copyright Act requires an affidavit with a Notice of Appeal and importing one from general civil procedure would deprive a litigant of the constitutional right to access justice. The appeal was not premature either and KECOBO’s letter was a concrete, actionable administrative decision under the Fair Administrative Action Act, not a mere threat.
Error versus Dispute: The Heart of the Judgment
Regulation 4(7) of the Copyright Regulations allows the Executive Director of KECOBO to amend the Copyright Register to correct errors such as entering information wrongly omitted, removing entries wrongly made, or correcting defects. KECOBO framed its letter as curing an error being the alleged omission of Akoth as an author. The Tribunal drew a sharp line between an error and a dispute stating that:
“An error would connote a factual mistake, and/or inadvertence even, on the part of an actor; while a dispute is a disagreement about something often involving conflicting claims or interpretations. It is evident that the matter before this Tribunal is indeed a dispute as contemplated under Section 48(4)(a) of the Act. No error has been plausibly presented to us, warranting the invocation of the power otherwise lawfully vested under reg 4(7), Copyright Regulations.”
Section 48(4)(a) of the Copyright Act vests jurisdiction over copyright registration disputes in the Tribunal, not KECOBO. Because Aryeh and Akoth were in a genuine disagreement over entitlement to the registered work and not merely correcting an inadvertent slip, KECOBO’s letter was an attempt to adjudicate a dispute it had no power to determine. Applying Anisminic v Foreign Compensation Commission [1969] 2 A.C. 147, a decision taken outside the scope of the power conferred is a nullity. The Tribunal held accordingly.
Registration Does Not Confer Ownership
The Tribunal grounded this jurisdictional limit in a more fundamental point about the nature of copyright itself. Kenya, as a party to the Berne Convention since 1993, recognises that copyright protection is automatic and not subject to any formality. Section 22(5) of the Copyright Act gives this domestic effect by providing that rights accrue to the author automatically on fixation of a work in material form, and non-registration does not bar an author’s claim. Registration under section 22D is voluntary, and KECOBO’s statutory role is to maintain the Register, not to determine, through that administrative process, contested questions of who the true author or owner of a work actually is.
This matters beyond the specific facts of this case: it means a KECOBO certificate of registration is administrative record-keeping, not a judicial or quasi-judicial determination of ownership. Accordingly, a party disputing authorship or ownership must, where the matter is genuinely contested, bring that dispute to the Tribunal under section 48(4)(a) as KECOBO cannot resolve it by simply directing the parties to reach an agreement, on pain of expunging the registration if they fail to.
It is worth noting one argument on which Aryeh failed. It had contended that the impugned letter was invalid because it was communicated under the hand of KECOBO’s Deputy Executive Director rather than a more senior or otherwise empowered officer. The Tribunal rejected this holding that the Executive Director (and by extension a properly appointed Deputy) acts as an officer of KECOBO in discharge of KECOBO’s own statutory mandate under section 5 and section 12 of the Act, not as a wholly separate office. The letter’s signatory was not, on its own, a basis to invalidate it since the fatal defect was jurisdictional, not one of internal signing authority.
Outcome and Takeaways
The Tribunal set aside KECOBO’s decision, and any action or decision premised on it, in its entirety. Three points for practitioners:
- When advising a client whose registered copyright is challenged by a third-party complaint to KECOBO, scrutinise carefully whether KECOBO’s proposed intervention is a genuine correction of an error (within Regulation 4(7)) or, in substance, an attempt to resolve a contested dispute over authorship or ownership, as the latter is ultra vires and can be challenged by way of appeal to the Copyright Tribunal under section 21(1) of the Copyright Act.
- Remember that a KECOBO certificate of registration is not itself proof of ownership and can be challenged notwithstanding registration; equally, advise clients that the absence of registration does not defeat a genuine copyright claim, given the automatic nature of copyright protection under section 22(5) and Kenya’s obligations under the Berne Convention.
- Where a client’s work is created through any collaborative or commissioned process, insist on a written agreement addressing authorship, ownership and any transfer of economic rights at the outset. Section 31 of the Copyright Act requires an agreement for a “commissioned work” to shift ownership away from the author, and the Tribunal was explicit here that no such written agreement had been shown to exist between Aryeh and its collaborators.
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 the Intellectual Property Department at Wamae & Allen LLP: WAIPLaw@wamaeallen.com
About the author
Janeirene specializes in real estate and securitization and banking and finance. She is a promising transactional advocate who has experience in real estate and securities law, transactional law and advisory and has handled complex transactions and advisories.
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.
