attached so as to form part of it, and upon assumption that any express or implied
allegations of fact in it are true”. - See Jeraf Sharif Vs Chotai Fancy Stores [1960] EA
374 at p.375.
This position was reiterated in the case of Attorney General Vs Olwoch [192] EA 392 and
Ismail Serugo Vs Kampala City Council and Attorney General, Constitutional Appeal
No. 02/1998, where it was stated that “one has to peruse the plaint on the assumption that
the facts pleaded are true” .
And “if the plaint shows that a Plaintiff enjoyed a right, the right has been violated and the
Defendant is liable, then a cause of action is disclosed”- Refer to Auto Garage Vs
Motokov (N0.3) [1971] EA 514
Looking at the plaint in the present case, it can be discerned from paragraph 4 that the
Plaintiff contends that she is the author of the work in Exhibit P1 and that the Plaintiff
utilized the copy right without her consent and further infringed on the same through
circulation of the bank notes bearing the said work. Though the Defendant alleges that the
artwork was by Shell (U) Ltd and that therefore the copyright belongs to Shell and not the
Plaintiff, the issues raised by the Defendant can only be effectively determined when the
evidence from both parties has been analyzed.
Court finds that on the face of the Plaint, a cause of action is disclosed and therefore Counsel
for the Defendant’s prayer for dismissal of the suit at this stage fails.
The next issue is whether the Plaintiff is the owner of the copyright in respect of the
sculpture on public display at KCC Centenary Park:
To effectively answer this issue, court finds it necessary to explain what a copyright is, and
also revisit the events that led to the creation of the sculpture on display at the KCC
Centenary Park.
A copyright is broadly defined as “an original work of authorship such as …artistic work
…fixed in any tangible medium of expression, giving the holder “….the exclusive right to
reproduce or authorize others to reproduce artistic, dramatic, literary, or musical works.”Refer to Black’s Law Dictionary 7th Edition and Oxford Dictionary of Law
Courts have described a copyright as, “a natural right and creators are therefore entitled to
the same protection anyone would be in regard to tangible and real property”. And have
emphasized that “The proponents of this doctrine contended that creators had a perpetual
right to control the publication of their work”. Refer to Stella Atal Vs Annabel Kiruta
HCCS 0967/2004
As a general rule, there is a copy right if skill or labour is employed in producing the
particular form in which the work is expressed…