Nyashinski fights court order to reveal details of lucrative Tecno deal

Songwriter and performer Nyamari Ongegu, known in music circles as ‘Nyashinski’, has filed an appeal at the High Court seeking to quash a magistrate court’s ruling compelling him to produce a contract he signed. 

The brand ambassador deal, believed to be lucrative, was signed with China-based mobile company Tecno. 

The court row stems from a copyright infringement case filed against him by Nigerian music producer Sam Are Eliapenda Jedidah.

Nyashinski argues that providing the documents as ordered poses a serious risk of injuring his personal brand by exposing him to extortion and blackmail.

In her August 2024 ruling on the matter, Magistrate Selina Muchungi had ordered Nyashinski to produce the contract he signed with Tecno Kenya in May 2023 when he was appointed brand ambassador of Tecno Camon 20. The order was meant to aid in determination of the case. 

She ruled that to assess and determine the general damages of infringement of Sam Are's copyrights, as alleged by the producer, the financial statements relating to the transaction are relevant to the suit. 

The magistrate also ordered Nyashinski to produce bank transactions, proof of payment of the deal and royalty reports of his hit song ‘Wach Wach’, which was produced by Nigerian national. While this song forms the basis of the suit, the same order was extended to two more songs: "Showman" and "Top Form", also produced by Are.

Are sued Nyashinski and Tecno Kenya in 2023.

He accused the parties of using the hit song "Wach Wach" to advertise, promote and endorse Tecno Camon 20, without seeking his consent or at least compensating him.

Are and Nyashinski co-own publishing rights at 50 percent each.

However, the rapper owns 100 percent of the master rights for the record, which he argued was what formed the basis of him entering the contract without seeking Are’s approval. 

Fighting back at the High Court, Nyashinski has faulted the magistrate's order compelling him to produce the endorsement agreement and the corresponding bank transfer payments.

“The trial court failed to provide directions, safeguard and/or mechanisms to ensure that the applicant’s personal data, financials, legal obligations and personal brand are protected for blackmail, extortion, exploitation, fraud and abuse,” Nyashinski argues through his lawyers.

Not being honest

The singer further says the order to produce the contract failed to take into account that he was bound by a non-disclosure agreement, while at the same time ignoring the doctrine of privity of contract since the Nigerian music producer was never a party to the deal.

“The learned magistrate incorrectly extended the scope of privity of contract by allowing the applicant to seek documents they had no contractual rights to access, thereby posing a serious risk of blackmail and exploitation,” Nyashinski's lawyer said.

The rapper further adds that the contract documents do not bear material connection to the core issues of the case.

He goes on to argue that copyright matters are still a new area of law in Kenya and that most people do not know how to go about it. This, he says, is why he is seeking the High Court's intervention to shield him from disclosing the sensitive financial information.

But Are, in his replying affidavit, insists the documents are crucial in determining the losses he has suffered, while accusing Nyashinski and his lawyer of not being honest. 

“The documents are necessary to shed light on how much loss I suffered due to the appellant’s (Nyashinski’s) and the 2nd respondent’s (Tecno Kenya) copyright infringing actions against my copyright-protected work...justice will not be served if the appellant and the 2nd respondent continue concealing material evidence,” says the music producer.

The Nigerian also accused Nyashinski's lawyer of contradiction, having told the magistrate court that he didn’t have the documents during the trial of the case.

“Even after claiming that the documents are protected by a non-disclosure agreement, counsel for the appellant in the last mention in the trial court informed the court that he has no such documents in his possession as the second respondent retained the agreement signed between the appellant and the 2nd respondent and that the respondent was paid in cash and that they can organise a receipt if need be.” 

Are also stated that Nyashinski cannot claim his rights are superior to the producer’s.

Tecno not registered in Kenya

In the same suit, Tecno’s local agent, Carlcare Service Limited, has filed an application seeking to have the suit struck out, arguing that Tecno Kenya is an entity that's not registered in Kenya. The Chinese mobile company is registered in Hong Kong as Tecno Mobile Limited. Carlcare, through lawyer George Lwande, says the case was faulty from the beginning.

“As the 2nd defendant is a non-existent entity, thus the suit brought against it is not sustainable in law and is incurably defective.”
 
tmatiko@ke.nationmedia.com