High Court Strikes Down Appointment of Anti-Counterfeit Agency Board Chairman Twice in a Row

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This blogger has come across a recent High Court judgment in the case of Republic v Attorney General & 2 others Ex parte Tom Odoyo Oloo [2016] eKLR in which the appointment of the chairman of Anti-Counterfeit Agency (ACA) was challenged for being unconstitutional.  In the earlier case of Republic v. Attorney General & 3 Others Ex-Parte Tom Odoyo Oloo [2015] eKLR discussed on this blog here, the High Court struck down the appointment of Polycarp Igathe as ACA Chairman and less than one week later on 24th December 2015, the Cabinet Secretary responsible for ACA appointed Igathe as ACA Chairman to take effect from 17th April 2015, the effective date that was the subject of the Court’s orders in the 2015 case. According to the applicant in the present case, this re-appointment of Igathe was both illegal and unconstitutional.

Section 6(1) of the Anti-Counterfeit Act, 2008 as amended by the Statute Law Miscellaneous Amendment Act, 2014, provides that the Chairman of ACA is to be appointed by the Cabinet Secretary from amongst the members appointed under paragraph (h) thereof which provides for two members appointed by the Cabinet Secretary not being public officers, and who hold a degree from a university recognised in Kenya and have at least ten years’ experience in matters relating to (i) intellectual property (IP) rights; (ii) consumer protection, or (iii) trade. In Republic v. Attorney General & 3 Others Ex-Parte Tom Odoyo Oloo [2015] eKLR, the Court held that for a person to qualify as ACA Chairman, he or she must have been appointed under section 6(1)(h) of the Act under which he is required to possess the qualifications stipulated thereunder. In this regard, it was the Applicant’s contention that Igathe was not prior to his appointment as a ACA Chairman appointed under section 6(1)(h) of the Act.

In addition to the constitutional and legal arguments raised against the appointment, the applicant also contended that Igathe has “serious, inexcusable and incurable conflict of interest issues that makes his appointment contrary to public interest and the legitimate expectations of the public”. In particular, the Applicant points out that Igathe had a “direct vested, beneficial and pecuniary interest in matters counterfeiting especially in the energy sector and therefore he is susceptible to use his position to victimize, zealously, industry competitors under the false guise of fighting counterfeiting.”

In rejecting Igathe’s appointment for the second time, the court held in part as follows:

“Whereas this Court cannot in these proceedings conclude whether or not the Interested Party was a proper person to chair the Board of Directors of the Agency, the appointing authority in light of the earlier decision of this Court ought to have resolved the issues which led to the earlier decision before purporting to appoint the Interested Party to the same position.

In my view the decision purporting to appoint the Interested Party as the Chairperson of the Agency cannot therefore be allowed to stand on two grounds. First, the process of appointment of the said Interested Party was tainted with procedural impropriety. Secondly, the appointing authority failed to take into consideration relevant materials to wit the Interested Party’s suitability for the said position taking into account his perceived conflict of interest.”

In light of the above judgment, ACA highest decision-making organ does not have a Chairman, which clearly cripples the Agency’s IP enforcement functions. According to ACA, the present suit as well as a similar suit relating to the appointment of anti-counterfeit inspectors are part of a scheme to paralyze its operations instigated by persons who have been behind several court cases, which ACA has been forced to defend thereby directing its resources away from the fight against counterfeiting. A few weeks prior to the date of the present court judgment, Igathe was a panelist at a public forum where he disclosed that he had submitted his resignation to the Executive Branch claiming that ACA is a corrupt institution and that it should be disbanded.

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