Zuku fined Sh7.2m for illegally airing Kenyan film 'Pwagu'

Wananchi Group Limited, trading as Zuku, has been ordered to pay Sh7.2 million in damages for illegally broadcasting the Kenyan film Pwagu without authorization.

The case, Kadi Media Limited vs Wananchi Group Limited, stemmed from a complaint by Kadi Media Limited and filmmaker Diana Mbogo, who alleged that Zuku infringed their copyright by airing Pwagu on its TV platform without consent.

The claimants sought an injunction to halt further broadcasting, special damages of Sh2,217,951, general damages, and costs, citing unauthorised use of their audio-visual work.

The tribunal's journey to this verdict began with a High Court order on November 4, 2024, transferring the case from Justice C.W. Meoli to the Copyright Tribunal.

Despite Zuku's initial challenge to the tribunal's jurisdiction, a ruling on November 28, 2024, affirmed its authority under Section 26(3) of the Copyright Act and Article 169(1)(d) of the Constitution.

Kadi Media provided robust evidence, including certificates from the Kenya Copyright Board and the Kenya Film and Classification Board, proving their ownership of Pwagu's literary and audio-visual rights.

Zuku admitted to airing the film, claiming it acquired the content from Sparks Corporate Solutions Limited, a third party that warranted no infringement on third-party rights.

However, the tribunal found Zuku's due diligence lacking, noting that the unsigned, undated agreement with Sparks held no legal weight.

Furthermore, minutes from a June 2024 meeting revealed that Zuku aired unapproved content, undermining their defence.

The tribunal ruled that Zuku violated Section 35 of the Copyright Act by broadcasting Pwagu without a valid license or assignment from Kadi Media.

Despite a demand letter on May 30, 2024, Zuku continued airing the film, dismissing the claims as defamatory.

The tribunal rejected Zuku's reliance on Section 35(5)(b), which protects unaware infringers, as Zuku was aware of the copyright but relied on faulty third-party assurances.

Citing precedents like Kimani v Safaricom Limited (2015) and Royal Media Services Limited v John Katana (2019), the tribunal awarded Kadi Media Sh2,217,951 in special damages for production and administrative costs, supported by extensive documentation.

Additionally, KSh 5 million in general damages was granted to compensate for the harm caused by Zuku's unauthorized broadcast to its wide viewership.

However, exemplary damages were denied, as Zuku had ceased airing the film post-dispute.

Costs and interest on the awarded sums were also granted, effective from the judgment date until fully paid.