Kenyan artist Hubert Mbuku Nakitare, popularly known as Nonini, secured a victory in a copyright infringement lawsuit against influencer Brian Mutinda and a local company, resulting in an award of KES 4 million in damages.
The Milimani Commercial Magistrate Court in Nairobi found Mutinda and the company liable for illegally synchronizing and publishing Nonini’s copyrighted song “We Kamu” in a promotional video without his permission.
The case, filed by Nonini in August 2022, revolved around the unauthorized use of his popular song “We Kamu” as a soundtrack in a promotional video posted on social media. The artist argued that his song was used in a skit promoting the Synix U51 TV series, without obtaining the necessary synchronization license. The video in question was initially created by Brian Mutinda on his TikTok account and later reposted on the company’s corporate Facebook page.
Nonini maintained that the use of his song for commercial promotion constituted a clear violation of his intellectual property rights. He argued that neither Mutinda nor the company sought his consent or obtained a license to use the song. “I own the copyright to my song ‘We Kamu,’ and no one is allowed to use it for commercial reasons without my permission,” Nonini stated during the trial.
The artist’s position was bolstered by evidence presented in court, including video clips showing the song playing throughout the skit. The promotional video, captioned with phrases like “Netflix and chill right. The all-new Synix U51 series has got you and bae this long holiday,” made explicit reference to the TV product, positioning Mutinda as an influencer promoting the brand.
The case took a further turn when Mutinda, in his defense, denied any involvement in posting the infringing video. He claimed that he had been contracted by the company to create a video, which he said was delivered without any background music. “I am not an agent of the company and have no control over what they post,” Mutinda argued. He also stated that he was not the one who uploaded the video to the company’s social media account.
However, Mutinda failed to produce the original raw footage of the video or any contract documentation to substantiate his claim that he provided a silent video. The court noted this lack of evidence as detrimental to his defense. Additionally, the company, which was the second defendant in the case, did not respond to the suit, leaving the matter undefended on their part.
Principal Magistrate H.M. Ng’ang’a found both Mutinda and the company liable for copyright infringement. The judgment noted that the evidence, including the video content synchronized with Nonini’s song and posted on the company’s social media account, demonstrated a breach of the artist’s intellectual property rights. “The actions of the first and second defendants constituted copyright infringement of the plaintiff’s composition,” Magistrate Ng’ang’a declared in his ruling.
The court ordered the defendants to jointly pay KES 4 million as general damages to Nonini. While the court granted damages, it denied Nonini’s plea for aggravated and punitive damages, stating that the criteria for such damages were not met. “Punitive or exemplary damages would only be granted where there is oppressive, arbitrary, or unconstitutional action, which was not sufficiently demonstrated in this case,” the ruling stated.
In justifying the awarded amount, the court referred to similar cases, including a 2019 decision in which the court upheld a KES 3 million award for copyright infringement and a 2023 ruling where the plaintiff was awarded KES 4.5 million for the unauthorized use of his music.
The ruling reinforces Kenya’s stance on protecting intellectual property rights, a critical concern in the country’s burgeoning creative economy. Under Article 40(5) of the Constitution, the state is mandated to support, promote, and protect the intellectual property rights of its citizens. In this context, the judgment is seen as a warning to content creators and corporate entities to exercise due diligence in their use of copyrighted material.
