By TITUS MUGAMBI

A popular saying attributed to Oscar Wilde goes, ‘imitation is the sincerest form of flattery that mediocrity can pay to greatness.’ While certain forms of imitation may be sincerely flattering, plagiarism is not one of them.

The next time you think of ‘borrowing’ your friend’s assignment or project to ‘guide’ you in completing that assignment or project that seems to be causing you distress, be wary that you may wade into the dreaded waters of copyright infringement that may leave you exposed to pay damages to the original owner of the copied assignment. The decision in Ann Nang’unda Kukali versus Mary A. Ogolla and University of Nairobi (Bungoma High Court Civil Suit No 94 of 2010) is instructive.

As part of her course work while pursuing a postgraduate degree of Master of Education Administration at Maseno University, the plaintiff undertook a project research titled ‘An Evaluation of Implementation of Safety Policy in Girls Boarding Secondary Schools in Bungoma East District Kenya.’ The plaintiff’s research work was accepted by the university in partial fulfilment of the award of the masters degree.

Later on, the first defendant enrolled at the University of Nairobi to pursue a Masters of Arts degree in Project Planning and Management. Through a mutual friend with the plaintiff, she acquired the plaintiff’s thesis which she used to model her research proposal which she titled, ‘Factors influencing the Implementation of Health and Safety Policy in Public Boarding Secondary Schools in Kenya. A case for Bungoma South District.’

The plaintiff became aware the first defendant’s research proposal and upon going through it, she was convinced that the first defendant had plagiarized her work. She therefore brought an action against her contending that the latter had infringed her copyright by plagiarizing her work.

The first defendant indeed acknowledged getting a copy of the plaintiff’s project from a mutual friend to guide her in preparing her proposal which she submitted to her supervisors for approval. She however withdrew the proposal after the plaintiff complained.

Upon perusing the two (2) works, the court noted that except for minor changes, the works were similar in substance, language and construction and an objective analysis could not differentiate the two.

The court held that plagiarism is a violation of intellectual property right of another. It is a strict liability tort against the owner of the intellectual work and once proven, the author is entitled to recover damages; s/he need not prove the actual loss suffered. Having held so, the court awarded the plaintiff damages of kshs 300,000 against the first defendant. The court reasoned that plagiarism is a threat to academic integrity in Kenyan Universities and courts should assist academic institutions to maintain academic integrity.

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TITUS MUTUA MUGAMBI is an Advocate of the High Court of Kenya practicing in Mombasa with Hamilton Harrison & Mathews Advocates. He is a student of the University of Nairobi pursuing a Master of Laws Degree in Public Finance & Financial Services Law