Kagundu & 2 others v Kenya Commercial Bank Limited & another [2025] KEHC 12514 (KLR)

Factual background

You probably heard and even danced to the song ‘wekaweka’ that trended around 2015-2016. You are probably also aware of the famous wekaweka na KCB Mpesa promotion by KCB Bank. The wekaweka song belongs to a pop group known as P-unit. For a Kenyan who speaks Swahili, the weka sounds pretty common, a word we use on a daily basis. That was part of the defense mounted by KCB Bank against a copyright infringement suit by the P-unit. Find the full case here.

The P-unit accused KCB of infringing their copyright by using the phrase ‘weka weka’ in the wekaweka na KCB Mpesa promotion. The Plaintiffs claimed that wekaweka was their catch phrase and its use by KCB made them suffer loss and harm. KCB argued that the phrase was a common phrase that lacks originality and can therefore not be copyrighted. The bankers also argued that the only similarity between their “Weka Weka Na KCB Mpesa” commercial and the Plaintiffs’ “Weka Weka” song is the phrase “weka weka.” They also argued that the beat, melody, chord progression, arrangement, and genre of their commercial are distinct from the Plaintiffs’ song.

Issues for determination

1. Whether the Plaintiffs own copyrights to the song “Weka Weka.”
2. Whether the Plaintiffs’ song and the Defendant’s advert are similar.
3. Whether the Defendants infringed on the Plaintiffs’ copyrights.

Whether the Plaintiffs own copyrights to the song “Weka Weka

The plaintiffs argued that their copyright ownership over the song is undisputed, as the song satisfies the two essential doctrines for copyright ownership: originality and tangibility. There was, however, no certificate of copyright registration from the Kenya Copyright Board (KECOBO) to prove copyright ownership over the song.

Holding of the court:

• Copyright protection can only be awarded to original artistic works;
• Literary, dramatic, musical and artistic works will only be original if they are the result of independent creative effort of the creator(s);
• Copyright registration, though desirable, is not mandatory to establish copyright protection ,and such copyright is conferred automatically on eligible works such as literary, musical, artistic, audio-visual, sound recordings, broadcasts, etc.;
• The weka weka song enjoys automatic copyright protection even though they did not register it with KECOBO.

Whether the Plaintiffs’ song and the Defendants’ advert are similar

The Defendants stated that the only similarity between the Plaintiffs’ song “Weka Weka” and the “Weka Weka Na KCB Mpesa” advertisement is the phrase “weka weka.” They reiterated that the beat, melody, chord progression, arrangement, structure, and genre of the two musical works are different. On their part, the Plaintiff stated that the Defendant’s adverts copied their lyrics “Weka pesa kwenye banki” found in the song.

Court’s holding: –

• The two songs are not similar in very many aspects; they differ in beats, melodies, chord progression, arrangement, structure, and genre;
• From an intrinsic sense and from an ordinary listener’s perspective, the two songs are different and there was, therefore, no infringement on the Plaintiffs ‘copyright.

Whether the Defendants infringed on the Plaintiffs’ copyrights

The court’s holding: –

• The Plaintiffs had copyrights to their song “weka weka” and that this is protected by law regardless of the non-registration;
• The Plaintiffs’ song and the Defendants’ advert are not similar in the intrinsic and ordinary sense;
• There was no basis to hold the defendants liable for copyright infringement, as no evidence of copying was tendered.

The applied law

In reaching the above positions, the court relied on the following provisions of law:

1. Section 22(5) of the Copyright Act of 2001 – This section states that copyright accrues upon affixation of the artistic or literally work in any material form. It provides leeway for instituting copyright infringement suits even where the work is not registered by KECOBO.
2. Rule 4 of the Copyright Rules 2020 – Grants KECOBO the mandate of maintaining the copyright register. Such registration is, however, voluntary.

Key takeaways

• While a copyright owner has the right to bring a claim for copyright infringement, such claims will only succeed upon tendering of evidence of copying.
• Although copyright registration is advisable, it is not mandatory and non-registration does not bar a copyright owner from pursuing a copyright infringement claim.