REPUBLIC OF KENYA

CHIEF MAGISTRATE
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. …………………. OF 2013

MUSIC COPYRIGHT SOCIETY OF KENYA LIMITED…………...PLAINTIFF/APPLICANT

VERSUS

GO COMMUNICATIONS LIMITED
T/A ONE FM.…………………………..……………………….DEFENDANT/RESPONDENT

CERTIFICATE OF URGENCY

I, OTIENO K. ARUM of P.O Box Number 75073-00200 Nairobi in the Republic of Kenya,
being an Advocate of the High Court of Kenya do hereby certify this application as urgent on the
GROUNDS THAT

1. The Defendant is engaged in and will continue to be engaged in unlawful broadcasting

and reproduction of copyrighted musical works falling within the Plaintiff’s repertoire.
Therefore this application seeks to enable the Plaintiff to take inventory and seize digital
database(s) and libraries of musical works, related records and documents in the premises
of the Defendant.

2. The Plaintiff has a well-founded apprehension that infringing copies of fixations of

copyrighted musical works and related materials in possession of the Defendant will be
hidden, disappear or will not be available at the time of the hearing unless this matter is
heard as a matter of urgency and the orders sought granted.

Dated at Nairobi this ………………………… day of ……………………………………….2013

_________________________
OTIENO ARUM & COMPANY
ADVOCATES FOR THE PLAINTIFF/APPLICANT

DRAWN & FILED BY:

OTIENO ARUM &CO ADVOCATES
TRAVE HOUSE,5TH FLOOR
Dr 9,MAMA NGINA STREET
P.O BOX 75073-00200
NAIROBI
TO BE SERVED UPON:
GO COMMUNICATIONS LIMITED T/A ONE FM
P.O BOX 7468-00300
NAIROBI
 REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. …………………. OF 2013

MUSIC COPYRIGHT SOCIETY OF KENYA LIMITED…………...PLAINTIFF

VERSUS

GO COMMUNICATIONS LIMITED
T/A ONE FM.…………………………..……………………………..DEFENDANT

PLAINT

1. The Plaintiff is a company limited by guarantee and incorporated under the Companies
Act, Chapter 486 Laws of Kenya with their registered offices at Nairobi. Their address of
service for purposes of this suit shall be through OTIENO ARUM &CO
ADVOCATES,TRAVEL HSE,5TH FLOOR MAMA NGINA STREET P.O BOX75073-
00200 NAIROBI.

2. The Defendant is a limited liability company incorporated in Kenya and carrying on in

Kenya business of radio and television broadcasting. Service of summons shall be
through the Plaintiff Advocate’s office.

3. The Plaintiff’s members consist of Kenyan Composers, Authors and Publishers of

musical works who have assigned to the Plaintiff, Broadcasting, Communication to the
Public and Reproduction Rights in all their musical works. Thus the Plaintiff is able to
authorize the broadcasting, communication to the public and reproduction of any and all
the musical works of its members anywhere in the world, and to collect the appropriate
fees for such usages.

4. The Plaintiff is affiliated to similar organizations throughout the world and, through a
system of reciprocal agreements it authorizes all those organizations to administer the
Broadcasting, Communication to the Public and Reproduction Rights under Copyright in
the musical works of Kenyan Composers, Authors and Publishers in their countries.
Conversely, the Plaintiff has acquired the same rights in the great store of musical works
in the repertoires of all these foreign organizations for its own operational territory which
consists of the Republic of Kenya.

5. The Plaintiff has registered with the Kenya Copyright Board under the Copyright Act,
2001 Chapter 130 Laws of Kenya (hereafter “the Act”) as a Collecting Society for the
collective administration of copyright in musical works and is duly licensed to collect and
distribute royalties for broadcasting, communication to the public and reproduction of a
 copyrighted musical works on behalf of Authors, Composers, Arrangers and Publishers
of musical works.

6. At all times material to this suit the Defendant has been and is engaged in the
broadcasting and/or reproduction of musical works falling within the repertoire of the
Plaintiff under the following call sign: “ONE FM”

7. The Plaintiff avers that the Defendant is required by the Act to obtain Plaintiff’s authority
for the musical works it broadcasts and reproduces in or for its broadcasts by obtaining
the authorization in the form of a license from the Plaintiff to broadcast and/or reproduce
the said musical works falling within the Plaintiff’ repertoire.

8. The Defendant has failed to obtain Plaintiff’s authority or pay to the Plaintiff license fees
for the copyrighted musical works it broadcasts and reproduces as required by the Act.

9. The Defendant has flagrantly engaged and continues to engage in unlawful broadcasting
and reproduction of musical works contrary to the provisions of the Act that require the
latter to pay compensation for the musical works it broadcasts and/or to obtain license
from the Plaintiff to broadcast and reproduce the musical works falling within the
Plaintiff’s repertoire.

10. Despite demand and notice of intention to sue having been given, the Defendant has
refused and/or failed to obtain the Plaintiff’s authorization and /or to pay the Plaintiff thus
rendering this suit necessary.

11. There is no other suit pending and there have been no previous proceedings in any court
between the Plaintiff and the Defendant over the same subject matter.

12. The cause of action arose with the jurisdiction of this Honourable Court.

REASONS WHEREFORE: the Plaintiff pray for judgment against the Defendant for:

a) A permanent injunction restraining the Defendant whether by itself or by its servants,

employees, agents or otherwise howsoever from broadcasting and/or reproducing the
musical works falling within the repertoire of the Plaintiff without the license or prior
authority of the Plaintiff.

b) Kshs 2,808,000.00.

c) Exemplary Damages

d) General Damages

e) Costs
 f) Interests

g) Such further and/or other reliefs as this Court deem just to grant.

Dated at Nairobi this ………………………… day of ……………………………………… 2013

_________________________
OTIENO ARUM & CO. ADVOCATES
ADVOCATES FOR THE PLAINTIFF

DRAWN & FILED BY:

OTIENO ARUM &CO ADVOCATES
TRAVE HOUSE,5TH FLOOR
Dr 9,MAMA NGINA STREET
P.O BOX 75073-00200
NAIROBI

TO BE SERVED UPON:
GO COMMUNICATIONS LIMITED T/A ONE FM
P.O BOX 7468-00300
NAIROBI
 REPUBLIC OF KENYA
CHIEF MAGISTRATE
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. …………………. OF 2013

MUSIC COPYRIGHT SOCIETY OF KENYA LIMITED…………...PLAINTIFF

VERSUS

GO COMMUNICATIONS LIMITED
T/A ONE FM.…………………………..……………………….DEFENDANT

VERIFYING AFFIDAVIT

I, MAURICE MWANDE OKOTH of Nairobi of P.O Box Number 14806-00800 NAIROBI DO

HEREBY MAKE OATH and state as follows:

1. THAT I am the Chief Executive Officer of the Plaintiff and I am conversant with the
facts giving rise to this suit and I am duly authorized to swear this affidavit.

2. THAT I have read and understood the contents of the plaint filed herein and I verify that
the same is correct as presented.

3. THAT there is no other suit pending or any other proceedings in Court between the
parties herein over the same subject matter.

4. THAT what is stated herein is true to the best of my knowledge, information and belief.

SWORN by MAURICE MWANDE OKOTH )

)
At NAIROBI this day of 2013 )

)
BEFORE ME ) DEPONENT
)
)
)
COMMISSIONER OF OATHS )

DRAWN & FILED BY:

OTIENO ARUM &CO ADVOCATES
TRAVE HOUSE,5TH FLOOR
Dr 9,MAMA NGINA STREET
P.O BOX 75073-00200
NAIROBI
 REPUBLIC OF KENYA
CHIEF MAGISTRATE
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. …………………. OF 2013

MUSIC COPYRIGHT SOCIETY OF KENYA LIMITED…………...PLAINTIFF/APPLICANT

VERSUS

GO COMMUNICATIONS LIMITED
T/A ONE FM.…………………………..……………………….DEFENDANT/RESPONDENT

NOTICE OF MOTION
(Under Order 40 Rules 2, 3 and 4 of the Civil Procedure Rules, Section 37 of the Copyright
Act, 2001, Sections 1A, 1B, 3A and 63 of the Civil Procedure Act and All enabling
provisions of law)

TAKE NOTICE that on the ……………… day of ………………….. 2013 at 9.00 o’clock in the
morning or as soon thereafter as the Advocate for the Appellant herein, will move this
Honourable Court FOR ORDERS:-

1. THAT this application be certified as urgent and be heard ex parte in the first instance.

2. THAT an order does issue under section 37 of the Copyright Act No. 12 of 2001 allowing the
plaintiff by itself, its servants, employees or agents to access or enter the offices or premises
of the Defendant to observe and take inventory of all musical works the Defendant broadcasts
and to seize or otherwise take away for preservation such samples, documents, fixations,
copies or other materials of whatsoever nature infringing upon copyright in musical works
within the Plaintiff’s repertoire pending inter partes hearing of this application.

3. THAT an order does issue under section 37 of the Copyright Act No. 12 of 2001 allowing the
plaintiff by itself, its servants, employees or agents to access or enter the offices or premises
of the Defendant to observe and take inventory of all musical works the Defendant
reproduces and to seize or otherwise take away for preservation such samples, documents,
fixations, copies or other materials of whatsoever nature infringing upon copyright in musical
works within the Plaintiff’s repertoire pending hearing of the suit herein.

4. THAT a temporary injunction does issue restraining the Defendant whether by itself or by
its servants, employees, agents or howsoever from broadcasting and/or reproducing the
musical works falling under the repertoire of the Plaintiff without the license or prior
authority of the Plaintiff pending inter partes hearing of this application.

5. THAT an injunction does issue restraining the Defendant whether by itself or by its
servants, employees, agents or howsoever from broadcasting and/or reproducing the
 musical works falling under the repertoire of the Plaintiff without the license or prior
authority of the Plaintiff pending the hearing of this suit.

6. THAT an order does issue compelling the Defendant to submit playlists of all musical works
that have been broadcast and/or reproduced at least six months prior to the date of filing of
this Application pending inter parte hearing of this application.

7. THAT an order does issue compelling the Defendant to submit playlists of all musical works
that have been broadcast and/or reproduced at least six months prior to the date of filing of
this Application pending hearing of this suit.

8. THAT the Applicant be awarded the costs of this application.

WHICH APPLICATION is based on the GROUNDS THAT:-

1 The Plaintiff’s members consist of Kenyan Composers, Authors and Publishers of musical
works who have assigned to the Plaintiff, Broadcasting, Communication to the Public and
Reproduction Rights in all their musical works. Thus the Plaintiff is able to authorize the
broadcasting, communication to the public and reproduction of any and all the musical works
of its members anywhere in the world, and to collect the appropriate fees for such usages.

2 The Plaintiff is affiliated to similar organizations throughout the world and, through a system
of reciprocal agreements it authorizes all those organizations to administer the Broadcasting,
Communication to the Public and Reproduction Rights under Copyright in the musical works
of Kenyan Composers, Authors and Publishers in their countries. Conversely, the Plaintiff
has acquired the same rights in the great store of musical works in the repertoires of all these
foreign organizations for its own operational territory which consists of the Republic of
Kenya.

3 The Applicant has registered with the Kenya Copyright Board under the Copyright Act, 2001
Chapter 130 Laws of Kenya (hereafter “the Act”) as a Collecting Society for the collective
administration of copyright in musical works and is duly licensed to collect and distribute
royalties for broadcasting, communication to the public and/or reproduction of a copyrighted
musical works on behalf of Authors, Composers, Arrangers and Publishers of musical works.

4 The Applicant is also authorized by affiliate organizations in the other countries vide
Reciprocal Agreements to authorize/license the exploitation through broadcasting and
reproduction of musical works within its repertoire.

5 The Respondent is engaged in broadcasting of musical works falling within the Applicant’
repertoire which requires the express authorization of the Applicant as provided under
section 26 of the Act.
6 The Respondent is engaged in reproduction of musical works falling within the Applicant’
repertoire which requires the express authorization of theApplicant as provided under section
26 of the Act.

7 The Respondent has refused to obtain Applicant’s authorization for the musical works it
includes in its broadcasts from the Applicant.

8 The Respondent has refused to obtain Applicant’s authorization for the musical works it
reproduces for its broadcasts from the Applicant.

9 The Respondent has continued to engage in broadcasting and reproduction of musical works
falling within the Applicant’s repertoire and has refused to pay compensation for the musical
works falling within the Applicant’s repertoire which it exploits in its broadcasting activities.

10 The failure by the Respondent to obtain authorization to broadcast and reproduce musical
works falling within the Applicant’s repertoire amounts to acts of infringement of the
copyright in the musical works and withholding of compensation due to the Applicant for the
works so broadcast and/or reproduced.

11 The Respondent is flagrantly engaging in unlawful broadcasting and reproduction of musical

works falling within the Applicant’s repertoire contrary to the provisions of the Act that
require the latter to obtain authorization and to pay compensation for the musical works it
broadcasts and/or reproduces.

12 The Respondent’s continued acts of broadcasting and reproduction of the Applicant’s

musical works without any payment amounts to total infringement under the Act and is
unfair enrichment.

13 The Respondent will, unless restrained by this Honourable Court, continue the said
infringements of copyright in the musical works falling within the Applicant’s repertoire.

14 The Applicant has established a prima facie case with high chances of success and it is only
just, fair and equitable that the prayers sought in the plaint be granted

AND SUPPORTED by the Affidavit of MAURICE MWANDE OKOTH and further grounds
and reasons to be adduced at the hearing thereof.

Dated at Nairobi this ………………………… day of ……………………………………… 2013

_________________________
OTIENO ARUM & CO ADVOCATES
ADVOCATE FOR THE PLAINTIFF/APPLICANT
DRAWN & FILED BY:
OTIENO ARUM &CO ADVOCATES
TRAVE HOUSE,5TH FLOOR
Dr 9,MAMA NGINA STREET
P.O BOX 75073-00200
NAIROBI

TO BE SERVED UPON:
GO COMMUNICATIONS LIMITED T/A ONE FM
P.O BOX 7468-00300
NAIROBI

“If any party served does not appear at the time and place above-mentioned such order will be
made and proceedings taken as the court may think just and expedient”
 REPUBLIC OF KENYA
CHIEF MAGISTRATE
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. …………………. OF 2013

MUSIC COPYRIGHT SOCIETY OF KENYA LIMITED…………...PLAINTIFF/APPLICANT

VERSUS

GO COMMUNICATIONS LIMITED
T/A ONE FM.…………………………..……………………….DEFENDANT/RESPONDENT

SUPPORTING AFFIDAVIT

I, MAURICE MWANDE OKOTH a resident of Nairobi of P.O Box Number 14806-00800

NAIROBI DO HEREBY MAKE OATH and state as follows:

1. THAT I am the Chief Executive Officer of the Music Copyright Society of Kenya, the
Plaintiff herein, I am well versed with the facts of this case, duly authorized to swear this
Affidavit on behalf of the Plaintiff and therefore competent to swear this Affidavit.

2. THAT the Plaintiff’s members consist of Kenyan Composers, Authors and Publishers of
musical works who have assigned to the Plaintiff, Broadcasting, Communication to the
Public and Reproduction Rights in all their musical works. Thus the Plaintiff is able to
authorize the broadcasting, communication to the public and reproduction of any and all
the musical works of its members anywhere in the world, and to collect the appropriate
fees for such usages.

3. THAT the Plaintiff is affiliated to similar organizations throughout the world and,
through a system of reciprocal agreements it authorizes all those organizations to
administer the Broadcasting, Communication to the Public and Reproduction Rights
under Copyright in the musical works of Kenyan Composers, Authors and Publishers in
their countries. Conversely, the Plaintiff has acquired the same rights in the great store of
musical works in the repertoires of all these foreign organizations for its own operational
territory which consists of the Republic of Kenya.

4. THAT the Plaintiff has registered with the Kenya Copyright Board under the Copyright
Act, 2001 Chapter 130 Laws of Kenya (hereafter “the Act”) as a Collecting Society for
the collective administration of copyright in musical works and is duly licensed to collect
and distribute royalties for broadcasting, communication to the public and reproduction
of a copyrighted musical works on behalf of Authors, Composers, Arrangers and
Publishers of musical works. (Annexed hereto and marked MM0-1and MMO-2 are
 copies of Certificate of Incorporation of the Plaintiff and Plaintiff’s Certificate of
Registration as a Collective Society)

5. THAT the Defendant has been and is still engaged in the broadcasting and/or
reproduction of musical works falling within the repertoire of the Plaintiff.

6. THAT the Defendant is required by the Act to obtain Plaintiff’s authority for the musical
works it broadcasts and reproduces in or for its broadcasts by obtaining the authorization
in the form of a license from the Plaintiff to broadcast and/or reproduce the said musical
works falling within the Plaintiff’ repertoire.

7. THAT the Defendant has failed to obtain Plaintiff’s authority or pay to the Plaintiff
license fees for the copyrighted musical works it broadcasts and reproduces as required
by the Act despite several demands and invoices being issued by the plaintiff. (Annexed
herewith and marked MMO-3 are copies of said communication and invoices)

8. THAT the Defendant has flagrantly engaged and continues to engage in unlawful
broadcasting and reproduction of musical works contrary to the provisions of the Act that
require the latter to pay compensation for the musical works it broadcasts and/or to obtain
license from the Plaintiff to broadcast and reproduce the musical works falling within the
Plaintiff’s repertoire.

9. THAT the Respondent will, unless restrained by this Honourable Court, continue the said
infringements of copyright in the musical works falling within the Applicant’s repertoire.

10. THAT the Applicant is reasonably apprehensive that the infringing fixations, copies,
digital data base/s & libraries of musical works, related records, documents, and/or other
necessary materials or evidence herein will be hidden, destroyed or rendered inaccessible
before discovery is made in this suit in the normal way making it necessary that the
Anton Piller sought herein be issued ex parte to secure the preservation of the same.

11. THAT it is only just, fair and equitable that the Applicant be granted the orders herein to.

12. THAT I swear this Affidavit in support of the application herein.

 13. THAT what I have deposed to herein is true to the best of my knowledge and belief save
for information sources whereof I have disclosed.

SWORN by MAURICE MWANDE OKOTH )

)
At NAIROBI this day of 2013 )

)
BEFORE ME ) DEPONENT
)
)
COMMISSIONER OF OATHS )

DRAWN & FILED BY:

OTIENO ARUM &CO ADVOCATES
TRAVE HOUSE,5TH FLOOR
Dr 9,MAMA NGINA STREET
P.O BOX 75073-00200
NAIROBI

TO BE SERVED UPON:
GO COMMUNICATIONS LIMITED T/A ONE FM
P.O BOX 7468-00300
NAIROBI
 REPUBLIC OF KENYA
CHIEF MAGISTRATE
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. …………………. OF 2013

MUSIC COPYRIGHT SOCIETY OF KENYA LIMITED…………...PLAINTIFF/APPLICANT

VERSUS

GO COMMUNICATIONS LIMITED
T/A ONE FM.…………………………..……………………….DEFENDANT/RESPONDENT

PLAINTIFF’S LIST OF DOCUMENTS

1. Copy of Plaintiff Certificate of Incorporation of the Plaintiff.

2. Copy of Plaintiff Certificate of Registration as a Collective Society.
3. Plaintiff Communication and Invoice Sent to Defendant.
4. Plaintiff Demand Letter and Notice of Intention to Sue.

Dated at Nairobi this ………………………… day of ……………………………………… 2013

_________________________
OTIENO ARUM & CO ADVOCATES
ADVOCATE FOR THE PLAINTIFF/APPLICANT

DRAWN & FILED BY:

OTIENO ARUM &CO ADVOCATES
TRAVE HOUSE,5TH FLOOR
Dr 9,MAMA NGINA STREET
P.O BOX 75073-00200
NAIROBI

TO BE SERVED UPON:
GO COMMUNICATIONS LIMITED T/A ONE FM
P.O BOX 7468-00300
NAIROBI
 REPUBLIC OF KENYA
CHIEF MAGISTRATE
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. …………………. OF 2013

MUSIC COPYRIGHT SOCIETY OF KENYA LIMITED…………...PLAINTIFF/APPLICANT

VERSUS

GO COMMUNICATIONS LIMITED
T/A ONE FM.…………………………..……………………….DEFENDANT/RESPONDENT

PLAINTIFF’S LIST OF WITNESSES

1. Maurice Mwande Okoth

Dated at Nairobi this ………………………… day of ……………………………………… 2013

_________________________
OTIENO ARUM & CO ADVOCATES
ADVOCATE FOR THE PLAINTIFF/APPLICANT

DRAWN & FILED BY:

OTIENO ARUM &CO ADVOCATES
TRAVE HOUSE,5TH FLOOR
Dr 9,MAMA NGINA STREET
P.O BOX 75073-00200
NAIROBI

TO BE SERVED UPON:
GO COMMUNICATIONS LIMITED T/A ONE FM
P.O BOX 7468-00300
NAIROBI