In a landmark decision delivered on 20th June 2025 by Hon. Justice F. Mugambi in the High Court of Kenya at Nairobi [2025] KEHC 8774 (KLR). The Court found Christ Is the Answer Ministries (CITAM) and Isaac Peter Kalua liable for copyright infringement of the song “Rungu Rwa Ihiga”, originally authored by gospel artist Rebecca Wanjiku.
Background of the Case
The plaintiff, Rebecca Wanjiku, claimed that CITAM’s men’s choir, led by Isaac Kalua, unlawfully reproduced and performed her copyrighted song under a new title, “Athuri Mwihithe”, without her consent. The dispute centred on the unauthorized use of lyrics, melody, and rhythm from her song, which was officially registered in 2011 with the Kenya Copyright Board.
The defendants denied any wrongdoing, arguing that their song was independently created and merely drawn from biblical scripture and public domain content, specifically referencing Exodus 33:21–23. They further argued that the phrase “Rungu Rwa Ihiga” was a common Christian expression and that their use was incidental and non-commercial.
Key Issues and Court Findings
Justice Mugambi framed three central issues for determination:
- Whether the plaintiff had valid copyright ownership.
- Whether infringement occurred.
- Whether the plaintiff was entitled to remedies.
1. Validity of Copyright
The court affirmed the plaintiff’s ownership of the work through a valid certificate of registration, which serves as prima facie evidence under Section 22A(3) of the Copyright Act, 2001. The defense conceded they did not claim authorship or ownership.
2. Evidence of Infringement
Substantial evidence, including audio-visual recordings played in court, demonstrated verbatim copying of lyrics and identical musical arrangement between the two works. Notably, DW1 (Kalua) admitted that the chorus lines repeated in their song were identical to those of the plaintiff’s. The Court dismissed the defendants’ claim that the lyrics were inspired by Exodus 33:21–23, noting that the biblical verses cited bore no textual or structural resemblance to the repeated lyrics in question.
Referring to the Indian Supreme Court decision in R.G. Anand v M/s Deluxe Films (1978), the judge reiterated that copyright protection applies to the expression, not the idea of creative content. Therefore, although both the plaintiff and defendants may have drawn from similar biblical inspiration, it is the plaintiff’s unique composition;consisting ofarrangement of lyrics, melody, and rhythm, that is protected. The use of identical lyrics and a nearly matching melody in the defendants’ song over a substantial duration suggested clear copying rather than independent creation. The court found that the defendants had substantially and materially copied the plaintiff’s work.
3. Defenses Rejected
- The defendants attempted to rely on the “incidental inclusion” exception under Paragraph 1(f) of the Second Schedule to the Copyright Act. Justice Mugambi interpreted the exception to apply to shield from liability those who include protected material in a manner that is genuinely peripheral,inessential, subordinate, merely background or unavoidable, not where the copied material forms a central, repeated, or substantial part of the new work[2019] KECA 701 (KLR). Subsequently, the court found that the copied material was neither casual nor background, but instead formed a central and extended portion of the song. Applying the legal test for substantiality, which considers both qualitative and quantitative aspects, the Court concluded that the copied portion constituted a significant and integral part of the original composition. As such, the defense of incidental inclusion was held to be inapplicable.
- The defense of folklore or public domain was also rejected. The court held that the defendants failed to provide any evidence of traditional or communal authorship, whereas the plaintiff’s authorship was supported by formal registration and credible testimony.
Damages and Remedies Awarded
Although the defendants argued that the song was used for non-commercial ministry purposes, the court emphasized that unauthorized use alone constitutes infringement. Intent or profit motive is immaterial under the law.
However, in assessing damages, the court considered the lack of evidence of commercial gain and opted for moderate general damages of Kshs. 1,500,000. This amount was deemed adequate to vindicate the plaintiff’s rights and deter future infringements.
Additionally, the court issued:
- A permanent injunction restraining the defendants from further use or dissemination of the infringing work.
- An order for takedown and destruction of all existing copies of the infringing song.
- Costs of the suit and interest on damages from the date of filing.
Key Takeaways for Creatives and Legal Practitioners
- Formal registration of copyright is a powerful shield as it shifts the evidentiary burden and affirms ownership.
- Digital platforms, while democratizing music sharing, can expose creators and performers to legal liability if due diligence on ownership is not observed.
- Claims of incidental use or folklore must be backed by concrete evidence, they are not default defenses.
- Even in non-commercial contexts like ministry or education, the unauthorized use of creative work still amounts to infringement.
Conclusion
The judgment in Rebecca Wanjiku v CITAM serves as a critical precedent on how Kenyan courts protect the rights of musicians and content creators. This ensures that the sanctity of original expression is not diluted by unconsented replication, regardless of the context or intent. Justice Mugambi’s judgment reinforces the principle that respect for intellectual property is not a barrier to ministry rather, a cornerstone of ethical and lawful expression.
For more insights on copyright protection, you can read our article here: https://www.proftomojiendaandassociates.com/copyright-protection-in-kenya/.
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By: Sheila Mwikali
