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Title: Elijah Mira Wainiana alias Elijah Miller v Interactive Media Services Limited
Venue: High Court at Nairobi (Nairobi Law Courts)
Case ID: No. 974 of 2006
Authoring Judge: J. L. A. Osiemo
Date of Decision: 18th July, 2007
Plaintiff(s): Elijah Mira alias Elijah Miller
Defendant(s): Interactive Media Services Limited
Keywords: Copyright Infringement

Facts
The Plaintiff claimed to be the owner of the song ‘Neguthondeka Njira’. He discovered that the defendant was selling ringtones that involved the said song thus infringing on the plaintiff’s copyrights. The plaintiff thus sough injunctive orders plus costs of the application pending the hearing and determination of the main suit.

Issues
Whether the defendant infringed on the plaintiff’s copy right

Holding
The defendant did not file a response to the application therefore the court found for the plaintiff and granted his prayers as sought.

Ruling
By way of this Chamber Summons dated 23rd June 2006, the Applicant seeks orders that the Defendant either by itself, its agents, servants and/or employees be restrained by an order of injunction from selling ringtones from the Kikuyu Gospel song known as ‘NIGUTHONDEKA NJIRA’ or in any way howsoever infringing on the Plaintiff’s artistic works of music/copyright till the hearing and determination of this suit.  The applicant also seeks the costs of this application.  The application is based on the grounds as stated on the body of the Chamber Summons and also supported by an affidavit sworn by the Applicant.
   Mr. Kaburu counsel for the Applicant submitted that the Plaintiff is the sole author of the song known as ‘NEGUTHONDEKA NJIRA’ and he is the owner of the copyright. On 4th March 2006 he discovered that the Defendant is selling ringtones derived from his said song and when he learned of the infringement of his copyright by the Defendant he sent them a demand notice requiring them to stop the infringement of his copyright but to no avail. He was forced to file this suit and in the meantime he sought temporary injunction as prayed in this application.
   The Respondent was served but did not file any papers to oppose the application.  The application being not opposed, the same is allowed in terms of prayers 2 and 3 of the Chamber Summons dated 23rd June 2006.

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