Eldoret-based gospel singer William Getumbe has suffered a setback after the High Court dismissed his petition challenging the Kenya Film Classification Board’s (KFCB) decision to ban his controversial music video “Yesu Ninyandue” and its demand for him to pay Sh243,200 in licensing fees.
In a judgment delivered by Justice Lawrence Mugambi struck out Getumbe’s cases, ruling that while the regulatory approach under the Films and Stage Plays Act may be outdated in light of evolving technology and social media dynamics, the KFCB was within its legal mandate to demand the takedown of the video due to its inappropriate content.
The Court held that the broad definitions within the Films and Stage Plays Act do extend to audiovisual content recorded through smartphones and shared on platforms like YouTube, TikTok, and Facebook, provided such content is intended for public exhibition.
However, it also found that current licensing requirements under the Act are largely impractical and unenforceable for user-generated social media content.
Justice Mugambi noted that although the KFCB’s reliance on certain sections of the Act particularly Sections 4, 12, and 16 to demand license fees from Getumbe was misguided, the Board acted appropriately in seeking to protect the public, especially vulnerable groups such as children, from harmful or offensive audiovisual material.
The petitioner, Getumbe, had argued that his freedom of expression and media rights under Articles 33 and 34 of the Constitution were violated, and further claimed that he was denied fair administrative action.
The Court rejected these claims, finding that Getumbe had been issued a seven-day notice prior to action being taken an adequate opportunity to respond.
The judge was critical of the current state of the legislation, stating that the regulatory regime is outdated and lacks the capacity to adequately address the realities of content production and dissemination in the digital age.
He called for legislative reform, observing that the Act was originally intended to regulate studio-based productions, not amateur recordings shared instantly online.
Despite these shortcomings, the judge maintained that the KFCB’s core mandate, protecting the public from harmful content, remains valid.
It found that the Board acted lawfully in requesting that Getumbe’s video be pulled down, given the volume of public complaints and the nature of the content.
However, the Court declared null and void the Board’s letter dated February 29, 2024, which demanded Sh243,200 in license fees from Getumbe, stating that such a demand had no legal basis under the current framework.
“In these modern times, when any person with a smartphone can generate audiovisual content and upload it for public access, the notion that all such recordings must first be approved by a regulatory authority is not only impractical but also an unreasonable intrusion on personal freedoms,” Justice Mugambi observed.
On the night of March 13 2024, the counseling psychologist and part-time content creator was arrested in his home in Eldoret after he failed to remit to the board the Sh243,200 in filming and licensing fees for uploading his lewd Yesu Ninyandue viral videos without KFCB approval.
At the time of his arrest, the musician had become a trending topic in the country after releasing the two racy songs on YouTube – Yesu Ninyandue-Imejaa and Yesu Ninandue-Nyonga.
Basking in his newfound fame, Getumbe went about his business, explaining his inspirations behind the songs to bloggers and several podcasts.
On February 29,2024 he received a demand letter and a sales invoice from KFCB signed by Nelly Muluka Oluoch the board’s communications manager for the acting CEO, Mr. Paskal Opiyo.
“It has come to our attention that you as a content creator have uploaded several videos on your YouTube channel, the most recent of which are titled Yesu Ninyandue-Imejaa and Yesu Ninandue-Nyonga, among others, which have been criticized for being blasphemous, containing nudity and the use of vulgar language. None of your videos uploaded to YouTube have undergone the necessary screening and classification process to determine age appropriateness as required by Section 4 of the Film and Stage Plays Act Cap 222 prior to public exhibition. Further, you failed to obtain filming permits prior to the production of the music videos in contravention of the provisions of Section 4 of the Act,” read in part of the demand letter
The demand letter further served Mr. Getumbe a seven-day notice to pay the filming and licensing fees and pull down the videos, failure to which he would be arrested and charged to court.
According to the sales invoice, Mr. Getumbe was to pay Sh190,000 as licensing fees, Sh38,000 as filming fees, and Sh15,200 as classification fees, totaling Sh243,200.
Defiant and aggrieved, he filed a petition in the High Court on March 6, accusing KFCB (1st respondent) and its CEO (2nd respondent) of gagging his freedom of expression, discriminating against him, and imposing a blanket ban on his content creation by prohibiting him from posting and sharing any of his content on YouTube, TikTok, Twitter, Facebook and threatening to block his accounts.
