Blow to 16,000 musicians as court dismisses petition in MCSK licence battle

The High Court has struck out a petition challenging the refusal by Kenya Copyright Board to renew musicians' society's operating licence, leaving them without a mechanism to collect royalties.

Justice Patrick Otieno dismissed the case for lack of jurisdiction holding that the dispute was improperly before the High Court and should instead have been taken to the Copyright Tribunal, as provided for under the Copyright Act.

“The dispute falls for determination by the tribunal and not this court. The court finds the Notice of Preliminary Objection to have been properly mounted and allows it, and is therefore bereft of jurisdiction to entertain the petition, which is struck out,” the judge said.  

The decision means the Music Copyright Society of Kenya (MCSK) remains unable to operate, effectively cutting off income streams for thousands of artists who depend on royalty collections from broadcast media, digital platforms, public venues, and commercial establishments.

The case was filed by Ibrahim Yusuf and Jalinga Ekai Alfred in November 2025, suing on their own behalf and on behalf of all members of MCSK, an organisation with a membership of about 16,000 artists.

The petition arose after Kenya Copyright Board (KECOBO) declined to renew MCSK’s operating licence for the 2025/26 financial year without notice or consultation, a move the petitioners said paralysed the society’s ability to collect and distribute royalties.

Court documents reveal that MCSK had operated for years as the primary collective management organisation collecting and distributing royalties to approximately 16,000 artists until the board's January 2025 decision brought operations to a halt.

They further claimed that the refusal to renew the licence amounted to a violation of members’ right to property under Article 40, as musicians were deprived of royalties from the use of their work.

“This decision was made without regard to the right to fair hearing nor consultation,” the petitioners contended, warning that it would constructively close and paralyse operations and ability of the MCSK to collect royalties on behalf of its members.

Initially, the musicians appeared to have scored a victory when Justice Otieno granted them urgent interim orders on November 5, 2025, temporarily protecting their interests while the case proceeded.

However, KECOBO quickly pushed back, filing a preliminary objection and a separate application seeking to set aside the interim orders. 

The board argued that the High Court had no jurisdiction to hear the matter due to the doctrine of exhaustion, insisting that disputes over refusal to license a collective management organisation must first be appealed before the Copyright Tribunal, as stipulated under Section 48(4)(b)(i) of the Copyright Act.

According to the KECOBO, every decision on refusal to grant registration to a collective management organization is only challenged by an appeal to the statutory tribunal.

Justice Otieno agreed with KECOBO, finding that although the petition was framed as a constitutional matter, it was in substance an appeal against the board’s licensing decision.

“The court reads the petition and its prayer to be a clever way of a framed bill of rights language of a matter that questions the discretion given to the tribunal to process operational licenses,” the judge stated.

He observed that granting the orders sought, including certiorari and mandamus to compel KECOBO to reinstate the licence,  would produce “nothing different from the expected outcome of an appeal.”

“The court thus reads the petition and its prayer to be a disguised appeal against the decision of the board declining to grant a certificate of registration,” Justice Otieno ruled.

The judge emphasised that Parliament had deliberately created a specialised tribunal to handle copyright licensing disputes, noting that the objects of the statute are best met by the established tribunal to imbue expertise on matter copyright which jurisdiction should be exhausted before this court is approached.

In a further blow to the petitioners, the court noted that the licence being contested had already expired by operation of law.

“The tenure of the disputed certificate has come to an end and it would be moot to litigate over a matter whose life has come to an end,” the judge said.

He advised that instead of pursuing the petition, better energy would be fruitfully employed in applying and pursuing a certificate of registration to administer royalties for the current year.