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We are pleased with the ruling of the Malindi High Court last Friday 14th July, 2017, that has now allowed artistes to have their Skiza royalties paid through CMOs.   

Justice Chitembwe pursuant to an Application filed by Safaricom on the request of KAMP & PRISK clarified his Orders in Petition No.5 of 2016. He stated as follows;

1. That artists shall have the right to receive their royalties through channels of their choice. Artists who wish to be paid through the Collective Management Organizations (CMOs) shall have the right to do so and Safaricom shall be under obligation to honor their wishes.

2.Those who wish to be paid through other channels likewise can do so.  

This ruling comes as a clarification since Safaricom had construed the Orders to mean that all Skiza royalties are to be paid through the Content Service Providers (CSPs) also known as Premium Rate Service Providers (PRSPs).  

As PRISK we remain committed to giving the rightful share to artistes as was evidenced in our last year’s Skiza distributions before the November ruling that prevented further payments by Safaricom to the CMOs.   

We shall in the next few days communicate on how we shall operationalize this new position as effectively as possible. Thank you for your steadfast support without which, we would not have achieved this great outcome. We continue to seek your indulgence and prayers for the betterment of our industry.  

SUMMARY OF THE SKIZA RELATED CASES:  

1. CIVIL APPLICATION NO. 63 OF 2016 AT THE COURT OF APPEAL IN MALINDI  

This Application forms part of Civil Appeal No. 9 of 2016 against the ruling in Petition No. 5 at the High Court in Malindi which KAMP-PRISK are seeking to reverse.

Filed in 24th November 2016, the said Application for stay did not have a hearing date until the 13th March 2017. The delay in hearing of the matter was occasioned by administrative challenges at the Judiciary specifically the allocation of hearing dates by the Registry at Malindi and the Court breaking for vacation early. KAMP and PRISK had through their advocates sought to expedite hearing of the matter by writing to  the Registrar of the Court of Appeal vide a letter dated 5th December 2017 to first move the matter to Nairobi where the courts were still operational and allocate a date before close of the year 2016.Through a letter dated 15th December 2016, the Deputy Registrar Malindi Mr. P.K Rotich did inform us that the Application had been transmitted to Nairobi for directions pursuant to our request made through the letter dated 5th December 2016 referred to hereinabove.  

The Application had arrived in Nairobi but it was still without a hearing date prompting us to further write another letter to the President- Court of Appeal, dated 20th December 2016 but before the matter could be allocated a hearing date the Court of Appeal in Nairobi went on recess.  

In the New Year we were informed that the matter had been reverted to Malindi where the court was on recess until end of February 2017. When the matter finally came up for hearing on 13th March 2017, it failed to proceed because Safaricom sought for more time to file a response to an Application for stay filed by MCSK, on the basis that MCSK had been denied a license to operate by KECOBO. The parties were directed to file and serve their submissions within 14 days from the date above. Thereafter, the Court of Appeal Registry would set a date for hearing for the matter.  

There being no urgency from the other parties to file their submissions since, KAMP & PRISK have written to the Court of Appeal Registrar(Malindi) vide a letter received on 13th of July 2017 at the Registry seeking to have the matter set for hearing at the earliest.  

2.       APPLICATION FOR CLARIFICATION OF ORDERS IN PETITION NO. 5 OF 2016  

This Application was filed by Safaricom upon request by KAMP & PRISK .The same was precipitated by lack of clarity in the implementation of the Orders granted by Justice Chitembwe specifically the Judge’s view in his Judgement implying that rights owners should exercise the discretion on their preferred channel of payment of their royalties. His view aforesaid was contradictory to an Order granted permanently barring Safaricom from paying Skiza royalties through the CMOs.  

KAMP & PRISK had requested Safaricom to file the said Application vide a letter dated 6th February 2017 addressed to the Director of Corporate Affairs (Safaricom) Mr. Steve Chege but there was no action from Safaricom. It was not until the 4th of May 2017 that the Application was finally filed in Court after a relentless push by KAMP & PRISK.

After filing, the Application was scheduled for hearing on 7th June 2017 but did not proceed on the said date owing to an Application filed by Albert Gacheru of MCSK seeking to be enjoined as a party to the matter. The matter was adjourned to allow all parties to respond to Gacheru’s Application and a hearing date set for 10th July 2017.  

When the matter came up for hearing on the 10th July 2017, KAMP & PRISK representatives who were present in Court rallied behind the Safaricom Advocate urging the Court to clarify its Orders which Orders contradicted the Judges view in the main body of his Judgement as highlighted above. On the other side, Albert Gacheru of MCSK together with the Petitioners (Mercy Kingóo & Another) strongly opposed the Application urging the Court to dismiss it on the basis that it lacked merit and had been filed in bad faith. This despite KAMP & PRISK representatives present in Court that day pleading with MCSK’s Albert Gacheru to support the Application without success.  

Having heard the matter, the Judge set a ruling date for 14th July 2017 on which date he allowed the Application to stand and proceeded to clarify his Orders directing that it was his intention that rights owners have the right to receive their Skiza royalties through channels of their choice.

It was a big triumph for the rights owners as majority of them who are unhappy with the CSPs/PRSPs can now receive their royalties through the CMOs.   KAMP & PRISK wish to acknowledge and sincerely thank MPAKE for the goodwill and support during the period the two organizations (KAMP-PRISK) were pushing Safaricom to seek a clarification of the Orders.  

Click on the link below to view the ruling by Justice Chitembwe on Malindi petition number 5 of 2016:  http://prisk.or.ke/index.php/en/docman/documents/malindi-ruling/5-ruling-dated-14-07-2017-compressed/file

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