Win for Nonini as High Court upholds Sh4 million award

Genge musician Hubert Nakitare, popularly known as Nonini. [File, Standard]

Genge musician Hubert Nakitare, popularly known as Nonini has won a major legal battle after the High Court upheld a Sh4 million copyright award against electronics company Synix.  

Justice Linus Kassan found that Nonini's copyright had been infringed and maintained the damages awarded by the lower court, albeit shifting liability exclusively to TV advertising and electronics company Sylvix Electronics.

The ruling sends a powerful message to all content publishers across the country about respecting intellectual property, even as it cleared content creator Brian Mutinda of personal liability and placed full responsibility on Sylvix Electronics.

At the heart of the case was a viral video that featured Nonini's copyrighted song without his permission.

Nonini, however, sued content creator Brian Mutinda and electronics firm Sylvix Electronics over his hit song “Wee Kamu,” which he said was used without his consent in an online video posted on the Synix social media platform.  

He sought a declaration that they had infringed on his rights through synchronization and illegal publishing, along with aggravated damages and other reliefs.

"The evidence on record clearly indicates that the Plaintiff's song had a copyright or license which was infringed. This is not disputed by either of the parties," Justice Kassan stated.

The judge noted that Nonini had produced a valid certificate proving ownership of the song "Wee Kamu," one of his popular tracks that has resonated with Kenyan music fans and that the unauthorized use constituted a clear violation of his intellectual property rights.

The court confirmed that the Genge pioneer's rights had been violated when his track was synchronized with video content and published on social media.

The disputed video, which was played in the courtroom during proceedings, showed content creator Mutinda welcoming a lady to his house to watch a television screen branded with Sylvix Electronics' name.

Playing in the background was Nonini's song with the distinctive lyrics "leo niko kwa keja sitoki hapa, kwa hivyo ukitaka wee kamu" could be heard throughout the video, making the use of the copyrighted material undeniable.

While the video clearly featured the copyrighted material, the court had to determine who was responsible for the infringement whether it was Mutinda, Sylvix Electronics, or both.

While the High Court confirmed the infringement, it carefully examined who should be held accountable.

In his ruling, Justice Kassan found that while Mutinda could not be held liable due to insufficient evidence linking him to the synchronization, Sylvix Electronics bore full responsibility for the infringement.

The judge emphasized that the video was posted on Sylvix Electronics' social media account, a fact that even Nonini himself had acknowledged during cross-examination.

"During cross-examination, the Plaintiff admitted that the account that posted the offending video was synix electronics (2nd Def) and not the 1st Defendant account," the judgment noted.

This admission became crucial in determining liability. The court found that Sylvix Electronics, having posted the infringing content on its account, must bear the consequences.

A significant factor in the case was Sylvix Electronics' complete failure to participate in the legal proceedings. The company did not defend itself in the original trial nor did it appeal the decision.

"The Second Defendant did not participate in the lower Court proceedings and in this Appeal," Justice Kassan observed.

Justice Kassan however found the Sh4 million awarded by the lower court to be entirely appropriate and declined to interfere with it.

"I find reasonable safe that this award shall only be against the 2nd Respondent," the judge ruled, directing that the full amount be paid by Sylvix Electronics.

The judge also ordered the electronics company Sylvix Electronics to pay the costs of the appeal.