The High Court has cleared Gaudencia Mkakeni to pursue a personal copyright claim after Safaricom relied on an earlier failed lawsuit. The judge ruled that the company could not treat Mkakeni and her former company as separate legal persons selectively.
Safaricom Limited has lost its bid to block a fresh copyright lawsuit over the gospel song Hapa Nilipo, reopening a dispute spanning more than a decade.
The High Court ruled that Gaudencia Aoko Mkakeni could pursue her personal claim despite an earlier company’s failed litigation over the same song.
Justice Benard Murunga dismissed Safaricom’s application, finding that the previous proceedings had not determined Mkakeni’s independent copyright claim.
The October 1, 2026, ruling leaves unresolved whether Safaricom infringed the copyright or owes damages.
At the heart of the dispute lies a question of legal identity: can a company defeat an individual’s claim after successfully arguing they are separate persons?
The judge answered that question against Safaricom, rejecting what he considered inconsistent legal positions.
A Song, Two Claims
The dispute dates back to 2009, when Mkakeni entered an arrangement with Tanzanian gospel singer Upendo Nkone concerning Hapa Nilipo.
Mkakeni operated under the unincorporated business name Mhubiri Production while handling the artist’s musical works.
On November 6, 2009, copyright certificate KCB 068 was issued in Mkakeni’s personal name for the song’s audio-visual copyright.
Mhubiri Productions Ltd was incorporated on March 23, 2010, before signing another agreement with Nkone.
Dated July 12, 2010, the agreement covered Hapa Nilipo and another album titled Zipo Faida.
Those separate transactions later became decisive because the original copyright certificate predated the company’s incorporation.
In 2012, Mhubiri Productions Ltd sued Safaricom and Liberty Africa Technologies Ltd over alleged unauthorised ringtone sales through Safaricom’s Skiza platform.
The company sought remedies for copyright infringement but failed to establish ownership of the rights it claimed.
The High Court dismissed its case on June 6, 2016, finding no lawful assignment transferring Mkakeni’s personal rights.
The Court of Appeal upheld that decision on December 4, 2020, reaffirming the company’s separate legal personality.
“The copyright was issued to Gaudencia before the appellant was incorporated,” the appellate court stated.
The judges found no demonstrated agreement transferring those rights to Mhubiri Productions Ltd.
Safaricom’s Second Defence
Mkakeni subsequently filed the present suit in her own name, seeking remedies for alleged infringement of Hapa Nilipo.
Unlike the earlier proceedings, her claim relied on the copyright certificate issued personally to her.
Safaricom sought to terminate the fresh proceedings through an application dated August 23, 2022.
The telecommunications company argued that the dispute was res judicata, meaning a matter already finally determined by a competent court.
It maintained that Mkakeni had directed the earlier litigation, testified as its principal witness, and shared the company’s interest.
Safaricom argued that she should not receive another opportunity to litigate after the company’s defeat.
It also described the new proceedings as vexatious, legally defective, and an abuse of court process.
Mkakeni countered that she had never been a plaintiff in the earlier case or sought personal relief.
She argued that Safaricom could not rely on separate legal identities to defeat one claim, then disregard them against another.
Judge Rejects Inconsistency
Justice Murunga examined Section 7 of the Civil Procedure Act, which governs the doctrine of res judicata.
The doctrine prevents parties from reopening matters already determined when five statutory requirements are satisfied together.
The judge found that the earlier proceedings had reached a final determination before a competent court.
However, the remaining requirements were not satisfied because Mkakeni’s personal claim differed from the company’s failed case.
Mhubiri Productions Ltd had failed to prove that it acquired the copyright through a lawful assignment from Mkakeni.
The earlier courts had expressly distinguished her personal rights from those asserted by the company.
Justice Murunga therefore found that her own infringement claim had not been determined previously.
The judge invoked the doctrine of “approbation and reprobation” to explain Safaricom’s inconsistent positions.
In essence, a litigant cannot rely on a legal distinction before rejecting it when circumstances change.
Safaricom had successfully argued that Mkakeni and Mhubiri Productions Ltd were separate legal persons during the earlier litigation.
It could not now treat them as one person to prevent her independent claim from proceeding.
The judge also rejected Safaricom’s reliance on the principle binding people who allow others to litigate shared interests.
That principle, discussed in John Florence Maritime Services, concerned parties asserting a common right or interest.
Mkakeni’s claim instead rested on copyright registered personally to her, rather than a shared corporate title.
The judge noted that she had confined her present suit to Hapa Nilipo, excluding Zipo Faida.
That distinction supported the conclusion that she was pursuing her own asserted rights rather than repackaging the company’s case.
Trial Still Ahead
Safaricom’s alternative argument that the suit was frivolous or abusive also failed.
Justice Murunga cited authorities describing striking out pleadings as a drastic remedy reserved for plainly hopeless cases.
He found that Mkakeni’s claim was not demonstrably bound to fail before evidence could be heard.
However, the ruling does not establish that she owns enforceable copyright or that Safaricom infringed it.
Safaricom remains free to challenge her title, the copyright’s subsistence, and compliance with Section 33(3) of the Copyright Act.
The court ordered the suit to proceed to case management before the Deputy Registrar within thirty days.
It also directed that the costs of Safaricom’s application remain in the cause.
For Mkakeni, the ruling removes a procedural barrier but does not guarantee victory in the underlying dispute.
For Safaricom, the next stage requires defending the substantive claim rather than relying on the company’s earlier defeat.
The central question now shifts from whether Mkakeni may sue to whether she can prove infringement.
The court has preserved that opportunity without prejudging the evidence or the ultimate outcome.
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