“It is obvious to me that where the issue of copyright is contested, the Police, the DPP and the Copyright Board cannot convert themselves into the High Court, settle that issue and declare that the 1st Petitioner has violated any part of the Copyright Act. Their actions are premature, malicious and unlawful and that is what is called abuse of Court process to settle personal scores and this Court cannot sit idly and watch them do so.” – Lenaola J., at para 48.
The above passage is taken from a recent High Court judgment delivered in the case of Peter Gichuki Mwangi & 2 others v Copyright Board of Kenya & 3 others  eKLR. A copy of this judgment is available here. In this case, the copyright (and trade mark) subject matter in dispute was several popular school books published under the title “High Flyer Series”. As the story goes, Peter Gichuki Mwangi (1st Petitioner) and Anthony Kiai (4th Respondent) were once business partners and together they run the publishing house responsible for the books, High Flyer Publishers Ltd. Upon disagreements arising between the two partners, Kiai moved to court for determination of the issue of copyright ownership in the on-going case of HCCC No. 45 of 2011 and unsuccessfully sought injunctive orders from the court pending the hearing and determination of that case. In addition, the court declined to grant Kiai’s prayer for Anton Piller orders. In the instant case, Lenaola J. notes that it was only after failing to obtain the above orders and others, including specifically the Anton Piller orders to search the premises and seize evidence without warning, that Kiai enlisted the support of the Kenya Copyright Board (KECOBO) in storming certain premises where Mwangi was publishing some of the books whose copyright remains contested. Another noteworthy point is that prior to these enforcement actions by KECOBO, the case HCCC 107 of 2013 had already been filed relating to the same disputed copyright works and it was pending determination.
In light of the above, the court held that whereas KECOBO and the DPP have certain statutory and Constitutional mandates which they are lawfully entitled to exercise in the context of the law, the actions taken against Mwangi and the other Petitioners were an abuse of Court process. The learned court also held that since the issue of breach of copyright is still being contested in the High Court, that issue should be settled before a decision whether any party may be guilty of such breach can be addressed. Therefore the court made the following order:-
“An order do issue that the 1st Respondent [KECOBO] and 2nd Respondent [DPP]’s decision to charge the Petitioners in Criminal Cases Nos. 224, 225 and 295 of 2013 together with any charges presented to the 3rd Respondent be stayed pending the final determination of HCCC No. 45 of 2011 as to the lawful or legal owner of the copyright in relation to HIGH FLYER SERIES.”
This judgment epitomizes the transformation currently taking place within the Judiciary of Kenya (highlighted elsewhere by this blogger). While the judicial branch respects that state organs have a certain amount of discretion in the exercise of their statutory and constitutional duties, this discretion should not be exercised arbitrarily, oppressively or contrary to public policy. In the present case, the court is convinced that ‘it is an abuse of criminal process for a person to launch criminal proceedings against the other, in civil matters which are genuinely disputed on substantial grounds by that other person and the civil dispute cannot be reasonably ventilated and decided with a fair finality in the criminal process.’
In its hard-hitting judgment, the court notes:
“Instead of pursuing an appeal against those orders [in HCCC 45 of 2013] or seeking a review thereof or pursuing the civil suit to conclusion, the 4th Respondent [Kiai] enlisted the help of the Copyright Board of Kenya and the Kenya Police to achieve that which he had failed to achieve at the High Court. The result of his efforts was the arrest of the Petitioners [Mwangi and others] and their arraignment in Court. One of the policies jealously guarded by the Courts is the need to ensure that there is no abuse of court process to harass, intimidate and coerce another party to settle a purely civil matter.”
In recent years, the criminal enforcement of copyright infringement both at the instance of either KECOBO and/or collecting societies has become a controversial issue with members of the public complaining of harassment, corruption and malice (See a recent report here). In the present case, KECOBO relied on Section 193A of the Criminal Procedure Code which provides that “the fact that any matter in issue in any criminal proceedings is also in directly or substantially in issue in any civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.” However, along comes the learned Lenaola J. who appreciates the existence of this express provision of the Criminal Code but still finds fault in KECOBO’s enforcement action. The court has not set an important precedent that any exercise of discretion in the performance of statutory and/or constitutional functions by KECOBO is subject to review by the High Court.