Plagiarism
(FIRST KENYAN COURT CASE)
COURT ISSUES INJUNCTION AGAINST UNIVERSITY IN PLAGIARISM SUIT
By Esther Nyaiyaki Onchana
Advocate – Nairobi
Anne Nang’unda Kukali v Mary A Ogola & University of Nairobi [2010] eKLR (www.kenyalaw.org)
High Court of Kenya at Bungoma
Civil Suit 94 of 2010
Lady Justice F. Muchemi
November 9, 2010
Many will recall the resignation of Germany’s popular defence minister Karl-Theodor zu Guttenberg early this month, amid a persistent scandal of plagiarism. Guttenberg resigned days after he was stripped of his university doctorate following allegations that he had copied large parts of his work from others. Although he admitted breaching standards he denied deliberately cheating.
Plagiarism is defined as the wrongful appropriation of another author's language, thoughts, ideas, or expressions, and the representation of them as one's own original work. In the fields of academia and journalism plagiarism is considered academic dishonesty or a breach of journalism ethics calling for a range of sanctions including academic censure and severe damage to one’s career. Famous incidences where plagiarism was at the centre of scrutiny have been documented in the fields of art, music and literature and can be traced to as far back as the 11th century.
Plagiarism suit in Kenya: a first of its kind
In the present day, this old age transgression continues to be fraught with moral, ethical and legal questions. In September 2010 the Bungoma High Court mulled over the legal aspects of this subject following allegations of plagiarism by Anne Nang’unda Kukali (Applicant) against Mary A. Ogola (1st Respondent) and the University of Nairobi. Lady Justice Florence Muchemi presided over the case; a first of its kind in Kenyan courts.
In her application to the court, Ms. Kukali sought for a temporary injunction to restrain the University of Nairobi from including Ms. Ogola’s name in the list of for the graduation ceremony that was to be held on September 24, 2010 or any other forthcoming graduation. Further she sought to restrain the University of Nairobi from awarding Ms. Ogola with a degree certificate for the degree of masters in Arts in Project Planning and Management pending the hearing and determination of the suit.
The facts leading to this application were that in June 2009 Ms. Ogola submitted a research proposal to the University of Nairobi for the degree of Masters in Arts in Project Planning and Management the same material that the Ms. Kukali had presented to Maseno University for the degree of Masters of Education in 2008. Ms. Kukali argued that at the time of the presentation, the Ms. Ogola was aware that the copyright to the work was held by Ms. Kukali; which work Ms. Ogola obtained through Ms. Kukali’s friend. The Applicant told the court that the 1st Respondent falsely presented the work as her original work and falsely declared that the work had been presented for the award of any degree in any other University.
The Applicant’s lawyer, Mr. Sifuna submitted that intellectual law granted Ms. Kukali a right against copyright infringement of her work. He pointed out to the court that the act of copying the work had been expressly admitted in Ms. Ogola’s replying affidavit. While submitting that the application had high chances of success having satisfied the principles set out in the often cited East African case of Giella v Cassman Brown. Mr. Sifuna contended that if the 1st Respondent was allowed to graduate using the copyright work, his client would suffer intellectual loss which could not to be compensated in monetary terms.
Ms. Ogola opposed the application through her lawyer Mr. Khakula who submitted that the document annexed to the supporting affidavit was a draft that could not prove a prima facie case in favour of the Applicant. In his view the admissions by the 1st Respondent in the replying affidavit were not sufficient to lay a basis for granting an injunction. He told the court that his client had on the advice of the University of Nairobi abandoned the work complained of and submitted fresh work. He argued that the parties conducted their research work at different places, were pursuing degrees in different universities and for that reason the issue of copyright did not arise. The University of Nairobi did not respond to the application and its stand on the matter remained unknown at the time of the ruling delivered on November 9, 2010.
In the court’s ruling Lady Justice Florence Muchemi stated that the perusal of the annexed documents presented to the court showed that the Applicant’s topic was “An Evaluation of the Implementation of Safety Policy in Girls Boarding Secondary Schools in Bungoma East District.”while thesecond annexure which was the subject of the suit showed that the 1st Respondent’s topic for research was “Factors Influencing the Implementation of Health and Safety Policy in Public Boarding Secondary Schools in Kenya: A case for Bungoma South District.”
In both cases the parties executed declarations to the effect that the research work was their original work and their respective research supervisor signalled their endorsement. After comparing the document against each other, Justice Muchemi noted that under the segment titled ‘Literature Review’ the 1st Respondent has reproduced almost word by word the Applicant’s original work save a few words, phrases and references.
The same was true under when the sub-heading “Abstract” of the Applicant’s and the 1st Respondent’s works were compared. The court concluded that same material content has been reproduced in the 1st Respondent’s work under that same sub-heading with only a few changes in some words and rephrasing of sentences. The introductory paragraphs and the objectives of the study were similar. The court further observed that the research was based on boarding schools with the Applicant giving their number as fourteen and the 1st Respondents as ten. The method of data collection was the same being through questionnaires, interviews, observations and document analysis.
The research methodology for both the Applicant’s work and that of the 1st Respondent was contained in Chapter III of the research proposal. The sub-headings and contents under the sub-headings were the same in both documents.
The comparative analysis the Applicant’s work and that of the 1st Respondent and the express admissions by the 1st Respondent, left the court with no doubt that the Applicant’s intellectual rights had been violated by the 1st Respondent.
With respect to the 1st Respondent‘s contention that she had submitted fresh work to the University which had been annexed to the replying affidavit, the court stated that the draft had not been endorsed by the supervisors to show that it has been submitted for approval. Further 1st Respondent had failed to furnish the court with any evidence to prove withdrawal of the copyrighted draft she had submitted earlier.
The court therefore assumed that the copyright work was still in the hands of the University of Nairobi and that it may be used by the 1st Respondent as partial fulfilment of the Masters Degree course at any future graduation. The court being satisfied that the Applicant had shown that she was likely to suffer substantial loss due to violation of her intellectual rights in the event of her original work being used by the 1st Respondent in her degree course approval granted the orders sought accordingly.
Internet double edge sword for plagiarism
The growth the internet has been heralded as a double edged sword with respect to plagiarism. On one hand the availability of a multitude of information websites including websites that avail term papers to students for a relatively small fee have left universities across the world scratching their heads on how to fight the vice. On the other hand it has provided a variety of free tools that help identify plagiarism.
Famous Plagiarism suits
The author of the famous novel Roots Alex Haley settled a lawsuit with Harold Courlander that cited approximately 80 passages from Courlander's novel The African. English courts dismissed two plagiarism suits against Dan Brown the author of The Da Vinci Code and in 1999 J.K. Rowling, author of the Harry Potter series of books was sued by Nancy Stouffer who for plagiarism. However the court ruled that Stouffer had fabricated evidence.
