Members of hip hop group P-Unit perform on stage during a concert at KICC grounds in Nairobi on July 22, 2018.
P-Unit, one of the country’s pioneer hip hop groups, is seeking Sh30 million compensation from Kenya Commercial Bank (KCB) over a jingle used to advertise a mobile services product.
The case is linked to P-Unit’s Weka Weka hit song released in December 2014, which was filed in July 2019 at the High Court Commercial and Tax Division returned to the corridors of justice this week.
P-Unit, who reunited last month with a spectacular performance to mark their 20th anniversary, claims the bank infringed on their copyright when it produced the Weka Weka na KCB M-Pesa jingle for commercial gains, claims which the bank denies.
KCB maintains that there is no similarity between Weka Weka na KCB M-Pesa and the Weka Weka song, other than the phrase Weka, which is a Kiswahili word which P-Unit cannot claim to be the original composer.
In the most recent hearing, two music producers appearing for the defendant, Gideon Kimanzi who works with Mojo Production that was behind the Weka Weka Na KCB jingle and Philip Digolo Akumu, who works for Ewaso Records, were hard-pressed to explain the technical aspects of the song-making process, from idea conceptualisation, beat making, composing, producing, sampling to mastering of a song.
The group — made up of Gabriel Kagundu (Gabu), Boniface Chege (Bon-eye) and Francis Amisi (Frasha) — argues that KCB created the jingle by corrupting the catchy chorus of their hit song Weka Weka, released on December 15, 2014.
In the court papers, the musicians allege that the bank deliberately reproduced the chorus of their song Weka Weka, which includes Frasha's famous opening verse of the song "Mi huu Weka Weka, Weka Weka pesa kwenye benki kisha nacheka..."
The hit, produced by sound engineer Eric Musyoka who was also cross examined, has since amassed over 705,000 views on YouTube.
When P-Unit released the club banger 'Weka Weka', it became an instant hit. At the time, the group was riding high on a string of successes as one of the country's most bankable artists before fizzling out into the cold.
The artistes told Lady Justice Josephine Wayua Wambua Mongare that P-Unit popularised the phrase Weka Weka and that KCB took advantage of this to exploit the similarity of the words and the lyrics by using the same catchphrase when the bank created its Weka Weka na KCB M-Pesa jingle for commercial gains.
As such, they want the court to order the financial institution to account for the profits it made from the jingle, which was aired on various national television stations, radio and social media and for P-Unit to be compensated for any amounts found to be due.
“All Kenyans who are interested in music can confirm that Weka Weka reminds them of a song by P-Unit”, the music collective state in the documents.
In his testimony on behalf of P-Unit, Gabu claims they believe KCB created their jingle to cash in on the fame their song has brought.
"My fellow group member Francis Amisi in his verse raps 'Weka Weka, Weka Weka pesa kwenye benki' which I believe is the reason why the creator of Weka Weka na KCB M-Pesa advert chose to use the phrase Weka Weka which we coined as part of our lyrics and title of the song in 2014 before the advertisement was released in 2019. Any member of the public who knows our song would be misled into believing that we endorsed the advert. They sought to profit illegally from the popularity of our song.” Says Gabu.
Members of hip hop group P-Unit perform on stage during a concert at KICC grounds in Nairobi on July 22, 2018.
When KCB released the advertisement, Gabu says P-Unit wrote a demand letter to the bank on May 29, 2019, asking it to pull down the advert from all media platforms and then discuss the matter.
They say KCB never responded to the letter but instead an advertising and marketing agency contracted by the bank, Scanad Kenya Ltd, (named as 2nd defendant) in the suit, wrote to P Unit denying the music group’s allegations. However, Gabu notes that the same letter from Scanad also requested a meeting with the three rappers.
P-Unit's lawyers and manager met with the advertising agency and an offer was made to P-Unit to work with the agency on their upcoming two advertising projects and concerts. P Unit were asked to come up with a quotation for these jobs.
But the artistes immediately rejected the offer as it “did not include compensation for copyright infringement by the advertising firm and KCB as the principal beneficiary of the commercial.”
Instead the rap collective wrote to Scanad and KCB on June 13, 2019 seeking Sh30 million as an out of court settlement.
On June 18, 2019, P-Unit says they received a letter from Scanad-appointed law firm asking them to hold any precipitate action against the advertising agency as they sought instructions from their client on how to engage with the hip hop group.
In the following days, Gabu claims P-Unit began seeing articles on various online blogs stating that the group had sued KCB barring the bank from using the Weka Weka phrase.
P-Unit say they were surprised as they had not sued KCB or Scanad and neither had they spoken to any journalist or posted the matter on their official social media pages.
The group would then receive a letter from the Scanad lawyers in June 2019 denying their allegation on copyright infringement.
In the same letter, Scanad also claimed that in 2011, KCB had done another commercial by the name Weka Weka long before P-Unit released their hit and as such their claims of having coined the phrase was baseless. But P-Unit maintains that there is no evidence to show for this even by simple internet search.
But in its defence testimony, KCB says it first used the catchphrase when it launched a 360 degree campaign dubbed ‘Weka Weka Promotion’ on August 29, 2011.
However, according to the evidence attached by the bank, the Weka Weka Promotion did not possess any jingle as is the case with Weka Weka Na KCB M-Pesa.
“The objective of the Weka Weka Promotion were to increase total deposits by Sh3.5 billion from SME (Small and Medium Enterprises), personal and Micro Banking accounts from August 29 to 24 November 2011 and contribute to improving the liquidity ratio from 20 per cent to 30 per cent by end of October 2011. The Weka Weka promotions was broadcast in all television and radio stations as well as in both print and outdoor,” KCB states.
The bank maintains that the only similarity between Weka Weka na KCB M-Pesa and Weka Weka by P-Unit is the phrase “weka” which is a Kiswahili word and no artist can claim custodianship of a language and therefore the phrase Weka Weka cannot be protected under Copyright.
Further KCB states that even the composition of the Weka Weka na KCB M-Pesa jingle and Weka Weka song are distinct.
Bon-eye (left) and Frasha of P-Unit perform on stage during the Decimator Volume 1 album launch in Nairobi December 11, 2018.
“The beat, melody and chord progression used in Weka Weka Na KCB M-Pesa is different from the Weka Weka song by P Unit. The arrangement on the Weka Weka Na KCB M-Pesa does not have any parallels that resemble or borrow from P-Unit’s song. The genre of the two musical works is different.”
In his witness statement, Jimmy Mnene a Legal Manager with Scanad, says the Weka Weka promotion campaign launched in August 2011, concluded on December 1, 2011 where Kennedy Kioko won an acre of land worth Sh3.2 million and Sh2 million in cash.
The second winner Chesiki Water Suppliers Ltd won a Nissan pick-up and the third Zipporah Wangui Wanguhu won Sh2 million in cash. However, Mnene didn’t attach any evidence to his statement.
“Thereafter between May 1, 2019 and October 31, 2019 KCB launched another campaign dubbed Weka Weka Na KCB M-Pesa campaign and hired Scanad to create and run the campaign.” States Mnene.
With Weka Weka Na KCB M-Pesa, Mnene says that the campaign aimed at entrenching a savings culture through KCB M-Pesa and had no co-relation with P-Unit’s song.
“Weka Weka Na KCB M-Pesa advertisements garnered their own popularity and enhanced the substantial goodwill that already exists among the customers and KCB. The apparent achievement of P Unit did not contribute to the formulation of or success of the KCB Weka Weka na KCB promotion or Weka Weka na KCB M-Pesa.”
After closing the hearing, Lady Justice Josephine Wayua Wambua Mongare directed both parties to file their final written submissions, with a mention set for next month to confirm the same, for a judgment date to be set.
