Why tribunal has dismissed KRA's bid to block copyright suit in eRITS tax system

The Kenya Copyright Tribunal recently dismissed a preliminary objection by the Kenya Revenue Authority (KRA) and its Commissioner General, clearing the path for a full hearing in a significant copyright infringement suit. The case, brought by Lawrence Miruka Bosire, alleges that KRA's Electronic Rental Income Tax System (eRITS) unlawfully incorporates his copyrighted geo-mapping and rental revenue management software. The Tribunal rejected KRA's arguments that it lacked jurisdiction, that the matter was *sub judice*, or that the claim was time-barred, affirming its mandate to adjudicate disputes concerning copyright registration, compensation, and infringement under the Copyright Act. This decision underscores the Tribunal's crucial role in safeguarding intellectual property rights in Kenya, particularly in the realm of software and digital innovation.

The Kenyan legal landscape for intellectual property has seen a notable development with the Copyright Tribunal's recent dismissal of a preliminary objection lodged by the Kenya Revenue Authority (KRA) and its Commissioner General. This ruling, in the case of *Lawrence Miruka Bosire v. Kenya Revenue Authority & Others*, allows a copyright infringement claim concerning KRA's Electronic Rental Income Tax System (eRITS) to proceed to a substantive hearing. The claimant, Lawrence Miruka Bosire, alleges that the eRITS system, a critical component of Kenya's tax collection infrastructure, unlawfully utilizes his proprietary geo-mapping and rental revenue management software.

This decision carries significant weight for legal practitioners and innovators in Kenya, particularly those operating in the burgeoning digital and software development sectors. It not only clarifies the jurisdictional boundaries of the Copyright Tribunal but also reinforces the robust protection afforded to computer programs under Kenyan copyright law. The Tribunal's stance signals a commitment to upholding intellectual property rights against powerful state entities, setting a crucial precedent for future disputes involving government-developed or deployed digital systems.

The article will delve into the statutory and doctrinal context governing copyright in Kenya, analyze the Tribunal's reasoning in dismissing KRA's objections, and explore the broader implications for practitioners navigating intellectual property disputes and software development contracts within the Kenyan jurisdiction.

Copyright protection in Kenya is primarily governed by the Copyright Act, 2001 (Cap 130), as amended, and the Copyright Regulations, 2020. This legislative framework extends protection to a variety of creative works, including literary, musical, and artistic works, as well as audio-visual works, sound recordings, broadcasts, and, crucially for this case, computer programs. Section 2 of the Copyright Act explicitly defines a computer program as a set of instructions capable of causing a computer to perform a particular task, classifying it as a literary work eligible for copyright protection.

While copyright protection in Kenya arises automatically upon the creation and fixation of a work in a tangible form, voluntary registration with the Kenya Copyright Board (KECOBO) provides enhanced legal standing and prima facie evidence of ownership, which can be instrumental in infringement disputes. The Copyright Act also establishes the Copyright Tribunal under Section 48, an expert body tasked with hearing and determining disputes related to copyright registration, compensation, and infringement. The Tribunal's procedural regulations, such as the Copyright Tribunal (Procedure) Regulations, 2022, guide the conduct of proceedings, aiming for expeditious and fair resolution of copyright matters.

In the case at hand, Lawrence Miruka Bosire initiated proceedings against the Kenya Revenue Authority (KRA), the Kenya Copyright Board (KECOBO), the Commissioner General of KRA, and the Registrar of Copyrights. Bosire alleged that KRA's Electronic Rental Income Tax System (eRITS), launched in April 2025 to enhance rental income tax collection, substantially reproduces and incorporates protected elements of his copyrighted geo-mapping and rental revenue management software. He presented copyright registration certificates issued by KECOBO as evidence of his ownership.

KRA and its Commissioner General filed a preliminary objection, seeking to block the suit on three main grounds: lack of subject matter jurisdiction by the Tribunal, the matter being *sub judice* (pending before another court), and the claim being time-barred. The Tribunal, chaired by Liz Lenjo, meticulously addressed each objection. On the issue of jurisdiction, the Tribunal affirmed its statutory mandate under the Copyright Act, which explicitly grants it authority to determine disputes concerning copyright registration, compensation, and infringement. It clarified that Bosire's claim squarely fell within this mandate, distinguishing it from disputes arising from KRA's tax administration functions, which would be governed by the Kenya Revenue Authority Act.

Regarding the *sub judice* argument, KRA failed to provide sufficient evidence to convince the Tribunal that the same issues and parties were actively engaged in litigation before another competent court. The Tribunal emphasized that for a matter to be *sub judice*, there must be a direct and substantial similarity between the issues in contention. Finally, the Tribunal dismissed the argument that the claim was time-barred, specifically rejecting KRA's reliance on Section 20A of the Kenya Revenue Authority Act. It held that this provision applies to tax administration disputes and not to copyright infringement claims, which are governed by the timelines stipulated in the Copyright Act. The Tribunal underscored that issues of ownership, authorship, originality, access, derivation, and infringement of eRITS require a full evidentiary hearing and could not be summarily dismissed through a preliminary objection.

This ruling aligns with the Tribunal's evolving jurisprudence, which has consistently emphasized the need for demonstrable human creative input for copyright protection, as seen in cases addressing AI-generated works. While not directly applicable to the eRITS case, this broader principle reinforces the Tribunal's role in safeguarding the rights of human creators. The dismissal of KRA's preliminary objection ensures that the substantive merits of Bosire's copyright infringement claim will be heard, potentially leading to a landmark decision on software copyright and government use of proprietary technology.

The Copyright Tribunal's dismissal of KRA's preliminary objection in the eRITS copyright infringement suit is a pivotal moment for intellectual property law in Kenya. It unequivocally affirms the Tribunal's jurisdiction over complex software copyright disputes, reinforcing its role as a specialized forum for resolving such matters. The decision sends a clear message that government entities are not immune to copyright infringement claims and must adhere to intellectual property laws, particularly when developing or deploying digital systems.

For practitioners, this case highlights several critical considerations. Firstly, it underscores the importance of conducting thorough due diligence and securing appropriate licenses or assignments for all software and digital assets, especially when engaging in large-scale projects or public-private partnerships. Secondly, it reaffirms that copyright registration, while not a prerequisite for protection, provides invaluable evidentiary weight in infringement proceedings. Thirdly, it emphasizes the need for a nuanced understanding of jurisdictional boundaries and limitation periods, particularly when dealing with claims against state agencies where different statutory frameworks might apply. As the *Bosire v. KRA* case proceeds to a full hearing, all eyes will be on the Copyright Tribunal for its eventual determination on the merits, which could significantly shape the future of software intellectual property rights and digital innovation within Kenya.