Content creator Brian Mutinda has appealed to the High Court against a Milimani Chief Magistrate’s Court ruling last month awarding rapper Hubert Nonini’ Nakitare Sh4 million in a copyright infringement case.
Chief Magistrate Hosea Ngángá awarded Nonini the millions as compensation after finding Mr Mutinda and Syinix Electronics Ltd guilty of using his song ‘Wee Kamu’ in an online advertisement without the rapper’s consent.
However, in his appeal filed by his lawyers in the High Court on 3 October 2024, Mr Mutinda says he is aggrieved by the entire judgment, citing 12 grounds, including the decision to award the Sh4 million.
“The learned magistrate erred in law and fact by awarding the plaintiff general damages in the sum of Ksh4,000,000 without the plaintiff (Nonini) adducing any evidence of damages as a result of the infringement.” Mr Mutinda says in court papers.
Mr Ng’ang’a had initially awarded Nonini Ksh1 million in damages in a ruling on March 23, which was set aside after Mutinda appealed. Mr Mutinda persuaded the court to overturn the judgment, arguing that he had not been given a chance to present his side of the story.
In his appeal, he blamed his previous lawyers for failing to present his defense. The court allowed Mr. Mutinda to re-file his defense, which was taken into account by the Chief Magistrate when he issued a new judgment awarding Nonini Sh4 million in damages, overturning the original Sh1 million.
This decision is another ground on which Mr Mutinda is appealing the judgment.
“The learned magistrate erred in law and fact by increasing the original amount of damages awarded by him after a formal hearing of evidence from Ksh1,000,000 to Ksh4,000,000 after an inter partes hearing without any additional evidence being adduced by the plaintiff,” Mr. Mutinda argues in court papers.
In reaching his decision, Chief Magistrate Nga’ng’a stated that the issues to be determined were who owns the copyright to the music that the plaintiff claimed was infringed. Second, who published the video that the plaintiff claimed infringed the copyright? And three is the question of the synchronization license and what the plaintiff’s rights are.
“On the first issue, I find that the plaintiff is the copyright owner of the song in question. On the second issue, the evidence showed that the video was posted by the second defendant (Syinix Electronics Ltd). The first defendant failed to produce any contract between it and the second defendant to show that it was only contracted to provide a raw video without the musical content or soundtrack,” Ng’ang’a said.
“Further, the first defendant has failed to produce the raw video that it provided to the second defendant as evidence that it was not privy to the allegations of infringement of the plaintiff’s copyrighted song. I find that it was the first defendant who created the video and the first and second defendants who published it.” Read part of the judgment.
