Court upholds KECOBO’s decision not to license MCSK to collect royalties

The High Court has upheld the Kenya Copyright Board’s (KECOBO) decision not to renew the Music Copyright Society of Kenya’s (MCSK) licence to collect and distribute royalties.

The ruling marks another setback for the collective management organisation.

In a decision delivered by Justice Patrick Otieno, the court struck out a constitutional petition filed by two MCSK members, saying it lacked jurisdiction to hear the matter.

The petition was filed by Ibrahim Yusuf and Jalinga Ekai Alfred, who sued on their own behalf and on behalf of all MCSK members.

They challenged KECOBO’s decision not to renew MCSK’s licence for the 2025/2026 period, arguing the move was unilateral and unlawful and violated the organisation’s right to fair administrative action under Article 47 of the Constitution.

They also argued that the non-renewal had effectively paralysed MCSK’s operations and deprived more than 16,000 artists of their royalties.

Royalties are payments made to creators, artists or rights holders for the use, reproduction, or distribution of their intellectual property, such as music, books, films, or inventions.

“As a consequence, the petitioner contends, is to constructively close and paralyse the operations and ability of the MCSK to collect royalties on behalf of its members, thus resulting in losses to the company and its general membership by way of violation of the right to property,” the ruling states.

At the time the petition was filed, the court had issued interim conservatory orders preventing KECOBO from implementing the decision.

However, KECOBO returned to court, raising a preliminary objection and seeking to set aside the interim orders.

KECOBO argued that the petition was barred by the doctrine of exhaustion of remedies, citing Section 48 of the Copyright Act.

The provision requires disputes arising from the refusal to grant or renew a licence to a collective management organisation to be challenged before the Copyright Tribunal.

The board said the High Court could not be approached before the statutory dispute resolution mechanism was exhausted, even where constitutional issues were raised.

Justice Otieno agreed with KECOBO, noting that jurisdiction is fundamental and must be resolved at the outset.

While acknowledging that the petition was framed as a constitutional dispute, the judge said the remedies sought—such as orders quashing KECOBO’s decision and compelling the issuance or reinstatement of the licence—resembled the outcome of an appeal.

“The court reads the petition and its prayers to be a clever framing of a matter that questions the discretion given to the board, as a pretext to vest jurisdiction in this court which otherwise belongs to the tribunal,” the judge said.

He added that the Copyright Tribunal is the statutory forum specifically created to handle licensing disputes involving collective management organisations and has the technical expertise to determine such matters.

The court also noted that the licence in question had already expired by operation of law, making the dispute moot.

Justice Otieno advised that instead of pursuing the struck-out petition, MCSK would be better served by applying for a fresh licence for the current year through the prescribed statutory process.

The court therefore allowed KECOBO’s preliminary objection, struck out the petition for lack of jurisdiction, and made no orders as to costs.

The case follows an appeal filed against KECOBO’s decision not to renew MCSK’s Collection Management Organisation (CMO) licence for 2025–2026.

MCSK, through lawyer Duncan Okubasu, filed the appeal under a certificate of urgency on December 10, 2025, seeking to stay the Tribunal’s decision that barred it from operating due to a lack of a valid licence.

The Tribunal cited recent High Court rulings by Justice Chacha Mwita and Justice John Chigiti, which addressed similar issues on collective management and tariff regulations.

Responding to the appeal through Nairobi-based lawyer Alex Nyabwengi, KECOBO said that the collection and distribution of royalties can only be undertaken by a duly licensed CMO, as provided under Section 2 of the Copyright Act, Cap 130, and subject to board approval.