https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1497

Anti-Counterfeit Authority v Kariuki t/a Khifam Ltd & 2 others (Civil Appeal E007 of 2021) [2026] KECA 1497 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1497 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal E007 of 2021 K M'Inoti, S ole Kantai & M Ngugi, JJA July 24, 2026 Between Anti-Counterfeit Authority Appellant and John Kariuki T/A Khifam Limited 1st Respondent Uzuri Foods Limited t/a Golden Harvest Mills 2nd Respondent Officer Commanding Runyenjes Police Station 3rd Respondent (Being an appeal against the judgment and decree of the High Court of Kenya at Embu (Florence Muchemi, J.) delivered on 17th November, 2020 in H.C. Const. Petition No. 5 of 2019) Judgment 1.In its judgment dated 17th November 2020 in Constitutional Petition No. 5 of 2019, the High Court at Embu (Muchemi J.) found that the Anti-Counterfeit Authority (hereafter ‘the appellant’), had violated the constitutional rights of the 1st respondent, John Kariuki T/A Khifam Limited (hereafter ‘the 1st respondent’) under Articles 29(a) and 49(1)(a)(i) of the Constitution. It awarded him damages of Kshs. 500,000 for the said violations, as well as the costs of the petition. 2.Aggrieved by the decision, the appellant filed this appeal in which it raises some eighteen (18) grounds of appeal in the Memorandum of Appeal dated 26th January 2021. However, in its submissions dated 1st February 2024, it abandoned all but grounds 1, 2, 9, 15, 16, 17 and 18. These are that the trial court erred in law and fact in: finding that the 1st respondent’s rights under Article 29(a) and 49(1)(a)(i) of the Constitution were violated; failing to appreciate that the 1st respondent never pleaded any claim premised on arbitrary deprivation of liberty, unlawful arrest, or illegality; failing to appreciate that the 1st respondent was informed of the reasons for his arrest; misapplying the law relating to unlawful arrest and detention; granting reliefs not supported by the pleadings; misdirecting itself in the assessment of damages; and in granting costs to the petitioner against the weight of evidence. 3.The essence of the appellant’s complaint in this appeal, in our view, is that the trial court erred in finding violation of the 1st respondent’s rights under Articles 29(a) and 49(1)(a)(i) of the Constitution, and in awarding him damages in respect of the alleged violations, when such alleged violations were not supported by the evidence on record. As a first appellate court, we are under a duty to evaluate the evidence before the trial court and reach our own conclusion- see Selle v Associated Motor Boat Co. Ltd [1968] EA 123. 4.The petitioner’s case as set out in the petition was that through his company, Khifam Limited, he had entered into a contract with the 2nd respondent, Uzuri Foods Limited T/A Golden Harvest Mills (hereafter ‘the 2nd respondent’) to supply flour manufactured by the 2nd respondent known as ‘Golden All- Purpose Home Baking Flour’ to retailers in Embu. The 2nd respondent would also supply the 1st respondent with surplus packaging for the purpose of repackaging the flour in instances where the initial packaging got destroyed. 5.The petitioner averred that he stored both the flour and the extra packaging at his business premises in Runyenjes, Embu. It was his averment that after he had been in business with the 2nd respondent for a while, he began his own business of manufacturing and supplying his own baking flour known as ‘Ridhika Ngano Poa’. He applied to the Registrar of Trade Marks to register his proposed logo; that a search was conducted, the logo examined and found to be unique to his product as it did not appear so similar as to cause any confusion with any other logo, including the 2nd respondent’s. The application was approved by the Registrar for advertisement on 23rd January 2019. 6.According to the 1st respondent, during the subsistence of his trademark application, he still had in his possession remaining stock and surplus packaging of the 2nd respondent’s Golden All-Purpose Home Baking Flour. He averred that he was in the process of supplying this remaining stock as he could not return it to the 2nd respondent as it had already been paid for. 7.The 1st respondent contended that on 21st March 2019, at around 2.40pm, the appellant, through one of its officers, entered his place of business in Runyenjes, Embu and seized various items including twenty (20) bags of Ridhika Ngano Poa All Purpose Baking Flour each weighing 50Kg; fifty (50) bales of Ngano Poa All-Purpose Home Baking Flour; three thousand five hundred (3,500) outer packaging branded Ridhika All Purpose Home Baking Flour; thirty thousand (30, 000) pieces of inner packaging branded ‘Golden All Purpose Baking Flour’; fifteen (15) bales of 2kg Golden All Purpose Home Baking Flour; and five (5) bales of 1 kg Golden All Purpose Home Baking Flour. 8.The petitioner contended that officers of the appellant then arrested him without explaining to him the reason for his arrest; harassed him and bundled him into their vehicle and took him to Runyenjes Police Station. The 1st respondent contended that upon arrival, he was charged with possession and manufacturing of counterfeit goods under Police File Number 412/2019. 9.He was released on a cash bail of Kshs. Fifty Thousand (Kshs. 50,000) and was informed that he should report before the Senior Principal Magistrate’s Court on 29th March 2019 for arraignment. He averred that he reported to court as directed on 29th March 2019 but was informed that his file had not been brought to court. He had not been charged with any offence by the time of filing his petition but had been left in limbo, as he could no longer continue with his business, which was his means of livelihood. His tools of trade and the goods seized from him remained in police custody, yet some were of perishable nature. 10.The 1st respondent contended that there was a clear and blatant attempt by the appellant and the 2nd respondent to frustrate his efforts to begin operating a business similar to the 2nd respondent’s as this would mean he would no longer be its supplier and would be in direct competition with it. He contended that despite posting a cash bail of Kshs. Fifty Thousand (Kshs.50,000), he lived in constant fear of being harassed and/or rearrested by the police as he had not been charged in court. 11.It was his case that he had suffered and continued to suffer great loss and exceptional hardship as he could no longer pursue his means of earning a livelihood pending his arraignment in court, while his tools of trade also remained in police custody. Further, that the prolonged prosecution of his case by the appellant and the 2nd respondent, as well as their laxity in having him charged in court and having the case heard and determined, had caused him great psychological anguish as he lived in fear of being rearrested. He therefore urged the court to allow his petition and grant him the orders sought therein. 12.The 2nd respondent filed an affidavit in response sworn by Patel Kumar Chandubhai, its Sales and Marketing Manager, on 29th July 2019. It was averred for the 2nd respondent that it was the manufacturer and supplier of Golden All Purpose Home Baking Flour, through Golden Harvest Mills, amongst other business ventures; that it was the registered owner of the Trade mark ‘GOLDEN’ under Trade Mark number 88648 whose validity run up to 13th August 2025, thus making it the sole owner of the logo and the name ‘GOLDEN’. 13.The 2nd respondent denied that it had a contract with the 1st respondent. It averred that it had a commercial relationship with the 1st respondent, who was a client to whom it supplied Golden All Purpose Baking Flour which he paid for through post-dated cheques. According to the 2nd respondent, it realised that there were numerous complaints on the quality of Golden wheat flour in the Mt. Kenya region where the 1st respondent was based, resulting in low sales in the region; that it conducted investigations on the cause of the low sales and complaints and established that the 1st respondent had started repackaging his own low-quality flour in its brand name, "GOLDEN"; that he was also using its "GOLDEN" logo for his brand ‘Ngano Poa’. It therefore reported the matter to the relevant body, the appellant, by a complaint form dated 14th March 2019, which was accompanied by copies of the certificate of registration of its "GOLDEN" trademark and was received by the appellant on 15th March, 2019. 14.The 2nd respondent averred that on 21st March 2019, its Sales Manager, with representatives of the appellant, went to the 1st respondent’s business premises in Rukiriri centre within Runyenjes in Embu County where they seized suspected counterfeit goods and tools used to manufacture the said goods, which were recorded in the inventory of seized goods Serial No. 003992. The 2nd respondent enumerated the same goods set out by the 1st respondent in his petition. It averred that some of the seized items were either labelled ‘Golden’ or had the Golden logo, but were not supplied by the 2nd respondent, and were therefore deemed to be suspected counterfeit goods. 15.While conceding that it supplied the 1st respondent with packaging material, the 2nd respondent averred that its material did not tally with what the 1st respondent was found with; and that the packaging material he had was fake as it had not supplied them and they did not have batch numbers. The 2nd respondent averred that the goods were seized in Rukiriri town, not Runyenjes; and that the goods seized, labelled ‘Ngano Poa,’ bore the ‘GOLDEN’ logo. 16.It was its case, further, that the 1st respondent’s claim of being in possession of surplus packaging material could not be true as packaging material was only supplied on special request, and it had only supplied 32 pieces of GOLDEN packaging material to the 1st respondent in 2019 as opposed to the 30,000 pieces found in his possession. 17.The appellant opposed the petition by an affidavit sworn on 2nd July 2019 by Ibrahim Bulle, an Inspector with the appellant. He averred that the appellant is mandated to, among other things, take action on counterfeit matters, either on the basis of formal complaints or suo moto pursuant to information received under section 33 of the Anti-Counterfeit Act under which the appellant is established. 18.Mr. Bulle further averred that under section 2 of the Act, counterfeit goods are defined to mean goods that are the result of counterfeiting; that counterfeiting is defined to include the manufacture of any goods under which protected goods are imitated in such a manner and to such a degree that those other goods are identical or substantially similar copies of the protected goods; that in consonance with its mandate, the 2nd respondent is authorized to receive complaints, cause the investigation of those complaints and ensures due process in an impartial manner. 19.Mr. Bulle averred that on 15th March 2019, the 2nd respondent lodged a complaint with it regarding infringement of its trade mark ‘GOLDEN’. Upon considering the complaint and documents accompanying it, he found that the 2nd respondent was eligible to lay a complaint under section 33 of the Act. Mr. Bulle averred that upon examining the documents and samples of the 2nd respondent’s packaging material bearing its registered trade mark, he was satisfied that the complaint lay within the appellant’s mandate and warranted action from him as an inspector under the Act. 20.Mr. Bulle averred that on 21st March 2019, accompanied by his colleague, one Glory Kinyua, he travelled to the 1st respondent’s business premises in Rukiriri Centre within Runyenjes, Embu County. They were joined by Mr. Patel Kumar, a representative of the 2nd respondent, and security from Embu Police Station.They met the 1st respondent at his premises, identified themselves and informed him of the nature and purpose of their visit as required under the Act; that they carried out the inspection in the presence of the 1st respondent and his employees who were at their various stations packaging flour; and that they were able to identify the suspected counterfeit ‘Golden’ products. Set out in his affidavit are the same goods identified in the affidavit sworn by the 1st respondent and Mr. Patel for the 2nd respondent, which were entered into the Inventory of Seized Goods Serial No. 003992. 21.Mr. Bulle averred that he proceeded with the 1st respondent to Runyenjes Police Station where he was booked under occurrence book number 43/21/3/2019. The seized goods were transported to the appellant’s depot in Nairobi. 22.It was averred for the appellant that it had been in communication with the 1st respondent and his advocates as evidenced in a letter from the firm of Mucheru Law LLP, acting on behalf of the 1st respondent, who sought an out of court settlement of the issue; that he and Glory Kinyua were in constant communication with the said advocates who were well informed on the proposed dates of registering the criminal case; that the 2nd respondent had prior communication with the 1st respondent at the time he had agreed to attend court; that under section 28(1) of the Act, the appellant was required to release the seized goods within three (3) months from the date of seizure unless a person had been charged with an offence in connection with the seized goods; and it therefore had until 21st June 2019 to make a decision whether or not to prosecute the 1st respondent. 23.It was averred that upon conclusion of investigation, the 1st respondent was charged before the Magistrate's Court in Runyenjes in Case No. 331 of 2019 on 11th June 2019. The appellant, therefore, denied the allegations of prolonged prosecution and laxity to arraign him in court by the 1st respondent, and prayed that the petition be dismissed with costs. 24.While the index to the Record of Appeal indicates that there was a replying affidavit sworn by the 3rd respondent on 18th July 2019, and the said affidavit is referred to in the judgment of the trial court, it was not included in the record. 25.The 1st respondent filed a further affidavit sworn on 22nd October 2019 in response to the affidavits sworn on behalf of the appellant and the 2nd and 3rd respondents. He denied that he had ever dealt with counterfeit materials, goods or products; asserted that Ridhika flour products were not and could not be labelled counterfeit as it was duly branded and its packaging material sufficiently provided for under the law; that forfeiture of his receipt books, credit books, invoices and cash books, items which were not ‘anti: counterfeit’ (sic) and were crucial in collection of ongoing sales had exposed him to hardship and economic loss; and that the respondents’ actions had caused him innumerable loss and abused his economic rights. He asserted that the actions of the respondent in carrying away his tools of trade were actuated by malice, noting that it took them over three months from the date of raiding his premises to charge him in court. 26.The trial court heard the petition by way of written submissions. In its decision, the court noted that the 1st respondent’s averments were not controverted by a replying affidavit, and that Inspector Grace (Glory Kinyua), who was cited as a participant in the operation, did not swear an affidavit to controvert the averments. The court further held that the 1st respondent was not informed of the reasons for his arrest; that there was no lawful justification for his arrest, and that the search and seizure were undertaken without proper authority or warrant. The court concluded that the 1st respondent’s rights under Articles 29(a) and 49(1)(a) of the Constitution had been infringed, and it awarded him damages of Kshs. 500,000, together with the costs of the petition. 27.At the hearing of the appeal on 7th October 2025, the appellant was represented by learned counsel, Mr. Adera. There was no appearance for any of the respondents despite service, nor had they filed submissions on the appeal. 28.The appellant filed submissions dated 1st February 2024. It submitted that the trial court’s finding that the rights of the 1st respondent under Article 29(a) of the Constitution were violated and in awarding him damages was based on contradictory findings. It noted that the court had found, at paragraph 40 of the judgment, that there was no violation, but that at paragraph 50, the court pivoted and concluded that there had been a violation of rights under the said Article. 29.The appellant submitted that in the face of the finding that there was no violation, the court erred in awarding damages. The appellant relied for this submission on the Supreme Court decision in Martin Wanderi & 105 Others v The Engineers Registration Board & 10 Others [2018] eKLR and this Court’s decision in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR. 30.Related to the appellant’s arguments regarding violation of Article 29 was its contention that the trial court erred in failing to find and hold that the 1st respondent had not pleaded any claim premised on deprivation of his freedom arbitrarily and without just cause, unlawful arrest or any illegality against the appellant. It submitted that while the trial court awarded the 1st respondent damages for alleged violation of rights under Article 29(a), the 1st respondent had not premised his petition on the said Article; and had not pleaded with precision nor particularized the manner of violation of any freedoms under the said Article 29(a). Its submission is that the first time the 1st respondent mentioned Article 29 was in an omnibus mention in the reliefs sought. The petition therefore failed the test in Anarita Karimi Njeru v Republic (1976 - 80) I KLR, and should have been dismissed. 31.In any event, according to the appellant, no prayer can be awarded based on unpleaded matters, support for this submission being sought in, among others, the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 Others [2013] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance 5 Others [2013]eKLR. 32.Regarding the trial court’s finding that the appellant had violated the 1st respondent’s rights under Article 49 (l)(a)(i) of the Constitution, the appellant submitted that its evidence before the trial court, taken in totality, leads to the inescapable conclusion that the 1st respondent was informed of and was abundantly aware of the reasons for the arrest; that its officers informed him of the nature and purpose of the visit to his premises, which was to inspect and seize goods violating the intellectual property rights of the 2nd respondent; that goods reasonably suspected to be counterfeit were seized from his premises; that the identification and seizure of the suspected counterfeit goods were undertaken in the presence of the 1st respondent; that the 1st respondent participated in the entire process of inspection, identification and seizure of suspected counterfeit goods; and that he signed Form ACA 22, the inventory of seized goods which particularized the goods seized from him. 33.The appellant submitted that the 1st respondent thereafter moved with the appellant’s officers to Runyenjes Police Station where he was booked and released at 10:30 hours on cash bail, the receipt in respect of which indicates the proposed charge and the reasons for the cash bail. It was the appellant’s submission that by affixing his signature to the inventory of goods seized, the 1st respondent was aware of the nature of the goods seized and the reasons for the seizure. The appellant relied for this submission on Khalid & 16 others v Attorney General & 2 others (Petition 21 of 2017) [2019] KESC 93 (KLR) (18 October 2019) (Judgment). 34.The appellant submitted further that the 1st respondent had not denied being the proprietor of the premises that were inspected and the owner of the goods seized; had admitted being in possession of the goods and being the proprietor of the premises; that he was arrested after around 14:40 HRS and was issued with a cash bail at the Runyenjes Police Station at 10:30 hrs; and that no evidence was placed before the court to show that he was ever placed in the police cells. The appellant urged the Court to allow its appeal with costs. 35.We have considered the record of appeal and the appellant’s submissions. In our view, the appeal turns on determination of the question whether the trial court correctly found that the appellant had violated the 1st respondent’s rights under Articles 29(a) and 49(1)(a)(i) of the Constitution. Should the answer to this issue be in the negative, then the award of damages of Kshs. 500,000 represented an error of law, and the entire petition was for dismissal. 36.In considering these issues, we start from the position that the events leading to the filing of the petition are largely undisputed. The 1st respondent was a distributor of the 2nd respondent’s home baking flour, ‘Golden’ in Runyenjes, Embu. The 2nd respondent received complaints regarding the quality of its flour. It investigated upon suspicion of counterfeiting by the 1st respondent, and thereafter made a complaint to the appellant. 37.In exercise of its powers under section 33 of the Anti- Counterfeit Act, the appellant’s officers, one Ibrahim Bulle and Glory Kinyua, raided the 1st respondent’s premises at about 2:40 pm on 21st March 2019, and seized goods, indicated in an inventory signed by the 1st respondent and the appellant’s officer, Ibrahim Bulle, on the same day. The 1st respondent was arrested and taken to Runyenjes Police Station where he was released on cash bail of Kshs. 50,000. The cash bail receipt indicates that he was to be charged with respect to possession of counterfeit goods. It is dated 21st March 2019, with the time indicated, though not clear, appearing to be 10.30 hours. From the averments before the Court, he was charged under the Anti-Counterfeit Act on 11th June 2019 before the Magistrate's Court in Runyenjes in Case No. 331 of 2019. 38.From the pleadings and the documents before the Court, the 1st respondent was ‘informed’ and was aware of the reasons for his arrest on the same day. He had the inventory of goods seized, which indicated the reason for the seizure, and the cash bail receipt which indicated the reasons for his arrest. 39.Article 29(a) of the Constitution provides for the protection of the right to life, liberty, and security of the person, and in particular prohibits arbitrary arrest and detention. From the facts before the trial court, the 1st respondent was arrested and released the same day, and as the trial court found at paragraph 40 of its judgment, no violation of the rights guaranteed under Article 29 had been established. It is curious, therefore, that a few paragraphs later, at paragraph 50, the trial court proceeded to make an award in damages for violation of Article 29(a). This contradiction undermines the court’s finding on this issue. We have perused the judgment of the trial court and are unable to find a basis for the inconsistency between paragraph 40 and 50 of the judgment. Having found, correctly in our view, that no violation of Article 29 had been made out, the court erred in awarding damages for a violation it had already found had not been established. 40.The appellant has also submitted that in any event, violation of Article 29 had not been pleaded in the petition, nor had it been proved. It is now settled that a party alleging violation of constitutional rights must not only plead such violation but must also demonstrate the manner in which such rights have been violated- see Anarita Karimi Njeru v Republic (supra) and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR). 41.Our perusal of the petition does not disclose any pleading with respect to violation of Article 29(a). As the appellant submits, it only appears in the prayers in the petition amongst a host of other constitutional provisions alleged to have been violated.We agree with the appellant that the trial court erred in finding violation of Article 29(a) in respect of the 1st respondent, and in making an award of damages in respect of the alleged violation. 42.Regarding the alleged violation of the 1st respondent’s rights under Article 49(1)(a)(i) of the Constitution, we note that the trial court awarded damages for violation of Article 49(1)(a)(i) on the basis that the 1st respondent was not informed, in a language that he understands, the reasons for his arrest. We have noted that the Inventory of Goods Seized and the cash bail receipt indicated that the seizure and arrest related to possession of counterfeit goods. The 1st respondent had these documents in his possession from the outset, and he in fact signed the Inventory of Goods Seized. 43.There was no averment that he was illiterate, or that he did not understand the language in which the documents were written. Additionally, we note that in reaching the conclusion that there was a breach of Article 49(1)(a)(i), the trial court found, at para. 34 of its judgment, that while the appellant had stated that the seizure was conducted in an amicable atmosphere, there was no affidavit by Ms. Kinyua, and Mr. Bulle was not present during the seizure. This, we find, was a misreading of the evidence before the trial court as the Inventory of Seized Goods indicated the seizing officer as Ibrahim Bulle, the same officer who swore the appellant’s affidavit in response to the petition. 44.Given these findings, we are satisfied that the appeal is merited, and we hereby allow it. We set aside the judgment of the trial court dated 17th November 2020 and dismiss the 1st respondent’s petition dated 6th June 2019. 45.The appellant shall have the costs of this appeal and of the petition before the High Court. DATED AND DELIVERED AT NYERI THIS 24TH DAY OF JULY, 2026.K. M’INOTI………………………………JUDGE OF APPEALS. ole KANTAI……………………………….JUDGE OF APPEALMUMBI NGUGI………………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR _