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  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  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.
“In my view fresh appointments to the positions of inspectors must be open to the public and such positions must be advertised. It therefore does not matter whether the interested parties were handpicked by the Board or Mr Igathe [Former Chairman of ACA Board of Directors]. The era of handpicking persons and appointing them as public officers was in my view buried with the retired Constitution and has no place in the current constitutional dispensation.” – Odunga J at para. 39.
In a recent judgment in the case of Republic v Anti-Counterfeit Agency Ex parte Moses Maina Maturu  eKLR, the High Court quashed Gazette Notice No. 9451 published on 24th December, 2015 appointing several individuals (enjoined in the suit as interested parties) as inspectors of Anti-Counterfeit Agency (ACA). According to ACA, the present suit was 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.
Where to begin?
Section 6(a) of the Copyright Act states that the Board of Kenya Copyright Board (KECOBO) shall consist of “a chairman, who shall be appointed by the Minister from amongst the members of registered copyright societies”. The Copyright Act as read with the Interpretation and General Provisions Act defines “Minister” as the Attorney-General who is “the Minister for the time being responsible for matters relating to copyright and related rights.” Under Article 156(4)(a) of the Constitution of Kenya states that the Attorney-General is the “principal legal adviser to the Government” which presumes that the A-G, in the case of public appointments, would have been consulted on their legality or lack thereof especially where those appointments touch on the A-G’s own docket!
Recent media reports indicate that Sony Corporation has filed an appeal in the High Court against the decision of the Registrar of Trade Marks at Kenya Industrial Property Institute (KIPI) allowing the registration of two trade marks namely “SONY HOLDINGS” (WORDS AND DEVICE) and “SONY HOLDINGS” (WORDS).
Given the high likelihood that the High Court may defer to the expert determination of the Trade Mark Registrar, this blogpost considers the ruling made by the Registrar in the opposition proceedings with the costs totaling about Kshs 1,252,400.00 awarded to Sony Holdings.
“Whereas the President had the power to appoint the Chairman of the Anti-Counterfeit Agency, that appointment had to be in compliance with the Constitution and the relevant Legislation since, as I have stated herein above, the President in undertaking his executive functions does so on behalf of the people of the Republic of Kenya and has to bow to the will of Kenyans as expressed in their document delegating their sovereign powers to inter alia the executive, the Constitution. It is the Constitution which sets out the terms under which the delegated sovereign power is to be exercised and those to whom the power is delegated must adhere to it…” – Excerpt from the Judgment by Mr. Justice G.V. Odunga on December 16th 2015.
Towards the end of December 2015, the High Court, in one of its boldest judgments yet, struck down President Kenyatta’s appointment of Polycarp Igathe as Chairman of the Anti-Counterfeit Agency (ACA). Last month, the Cabinet Secretary for Industrialisation and Entreprise Development responded to the High Court judgment by (re-)appointing Igathe as ACA Chairman vide Gazette Notice No. 368 published on January 22nd 2016.
**Update (08/02/16): This blogger has been reliably informed that the above (re-)appointment of Igathe by the Cabinet Secretary has been challenged and an order of stay has been issued by the High Court. More details to follow.
This blogger has previously blogged here and here about Kenafric’s fatal attraction to well-known trade marks, to put it mildly. The latest victim of Kenafric’s attraction is none other than Puma AG Rudolf Dassler Sport (Puma for short). In this connection, this blogger came across a recent ruling in the case of Kenafric Industries Limited & another v Anti-Counterfeit Agency & 3 others  eKLR.
In this case, Puma through its representative Paul Ramara lodged complaints at Anti-Counterfeit Agency (ACA) against Kenafric for trade mark infringement. ACA and Ramara went to Kenafric’s premises and demanded to check the same for goods in the name of Puma a demand Mikul Shah a director at Kenafric declined to comply with due to the fact that his company had not been served with any Court order directing the said search and entry. Consequently, Shah was arrested, taken to Ruaraka Police Station and charged with the offence of obstruction and released on bond.
Earlier this year, we discussed the successes of Anti-Counterfeit Agency (ACA) in thwarting judicial review proceedings filed against it in two separate cases namely “Omega Dustless Chalk” and “Zero B”. However, some of the allegations leveled against ACA in these cases raised eyebrows over the state of affairs at ACA. A welcomed development for ACA came with the recent appointment of Mr. Polycarp Igathe (pictured above) as the new Chairman of ACA Board of Directors. Igathe, CEO of Vivo Energy and formerly Chairman of Kenya Association of Manufacturers, is highly respected in the private sector and said to be committed to the fight against counterfeits in Kenya. Following Igathe’s appointment, ACA made news headlines when it announced that it had decided to send four of its senior officers on compulsory leave over allegations of gross misconduct.