The High Court had ordered Digital pay TV provider Wananchi Group to pay Sh5 million to the owners of the film Pwagu.
Digital pay TV provider Wananchi Group, which trades as Zuku, will now pay Sh5 million to the owners of the film Pwagu, after the High Court reduced a Sh7.2 million compensation award issued last year by the Copyright Tribunal.
Wananchi had sought to overturn the tribunal’s decision, which found the broadcaster liable for copyright infringement after it aired Pwagu on its Zuku Swahili 100 channel without the consent of the film’s owners, Kadi Media and Diana Mbogo.
The tribunal had ordered Wananchi to pay Sh2.21 million in special damages and Sh5 million in general damages. In its ruling, the tribunal, chaired by Elizabeth Lenjo, held that Wananchi had exercised exclusive rights belonging to Kadi Media by broadcasting the film without authorisation.
“We find that it is not in dispute that the Respondent (Wananchi) exercised a right exclusive to the first Claimant (Kadi Media) by broadcasting to the public the film Pwagu.”
Wananchi Group had defended itself, saying it had an agreement with a third party, Sparks Corporate Solutions, which claimed to own the rights to the film.
But the tribunal stated that where a party claims to have acquired rights through assignment, the party must produce the license or assignment duly registered by the Kenya Copyright Board, which wasn’t produced.
According to the tribunal, as a seasoned broadcaster of Kenyan audiovisual works, Wananchi ought to have conducted proper due diligence before airing the film.
Dissatisfied with the judgment, Wananchi filed an appeal at the High Court in May 2025, arguing that the tribunal had erred both in law and in fact by holding it liable. The company maintained that responsibility, if any, lay with Sparks Corporate Solutions.
Infringement of copyright
Wananchi also faulted the tribunal for failing to make findings against Sparks Corporate, despite what it described as the company’s central role in the dispute. Additionally, it argued that the tribunal relied on documents attributed to Sparks that were not formally produced as evidence.
The broadcaster further challenged the award of special damages, arguing that they had not been properly proved, and contended that the Sh5 million in general damages was excessive.
In its determination, the High Court upheld the finding that Wananchi had infringed the copyright of Kadi Media and Diana Mbogo. However, the court set aside the Sh2.21 million award in special damages.
The court held that special damages must be strictly proved and must demonstrate a clear nexus between the infringement and the actual loss suffered.
“Since there is no dispute as to the owner of the infringed works, then for a claim on special damages based on the costs of production, post-production, and administrative costs to succeed, there has to be a nexus between the infringement and the actual damages demanded,” noted the court.
According to the judge, a claim for special damages must rest on solid proof, not assumption. For example, there must be clear evidence showing how the airing of a film diminished its actual market value. If the broadcast rendered the film worthless or significantly reduced its commercial worth, the production costs could then serve as evidence of the fair market value that was effectively destroyed.
The judge also noted that lost licensing fees may form part of special damages, provided the amount the owner would reasonably have earned from licensing the film to a third party can be reliably determined.
The judge also noted that any profits made by the alleged infringer may be examined to support a claim of unjust enrichment.
Sh5 million award in general damages
“In light of the foregoing, this Court finds that the claim for special damages was not properly proved and was therefore not recoverable.”
High Court Judge Antony Mrima nevertheless upheld the Sh5 million award in general damages, stating that the tribunal had conducted a comparative analysis of similar cases before arriving at the figure.
“The Appellant’s attempt to distinguish the decision does not successfully demonstrate how the award is inordinately high as to justify this Court to disturb the same,” the judge held.
He added that significant intellectual effort, time and resources had been invested in producing the film, and the award could not be said to be excessive.
Consequently, the court set aside the Sh2,217,951 in special damages but upheld the Sh5 million in general damages, as well as the orders on costs and interest.
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