[2017] KEHC 9490 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. 103 OF 2017

In the matter of Alleged contravention of Rights and Fundamental Freedoms under articles 20, 21 (1), 22, 23 (1) (3), 24, 27, 28, 29(a), 31(a) (b) 39 & 40 of the Constitution of Kenya, 2010

and

In the matter of Nairobi Chief Magistrates Court Criminal Case No. 308 of 2017, (Republic vs Barloworld Limited and George Ngugi Wambui)

and

In the matter of section 25 (3), 28, 32 and 33 of the Anti-Counterfeit Act, 2008

and

In the matter of section 17 of the Patents Registration Act Cap 508

BETWEEN

Barloworld Limited...................................................Petitioner

versus

Anti-Counterfeit Agency....................................1stRespondent

Match Masters Limited.....................................2ndRespondent

RULING

1. By a Notice of Motion dated 3rd July 2017, the second Respondent seeks to stay the judgement delivered in this case on 28th June 2017 pending determination of the applicants an intended appeal. Also sought is an order "restraining the release of counterfeit match boxes into the market" pending the hearing and determination of the applicants intended appeal and a conservatory order restraining the Magistrates' Court from dismissing Milimani Criminal Case Number 308 of 2017, Republic versus Barlworld Limited & Another.

2. The background relevant to the determination of this application is that the petitioner, now the Respondent in this application imported a consignment of Brand Safety Matches from India valued at Ksh. 6,000,000/=. His case was that he obtained all the requisite approvals both in India and in Kenya to sell the said products locally.

3. The Petitioner averred that on 19th November 2016, the first Respondent, forcefully entered into its premises at Kijabe street, Nairobi and illegally seized the said consignment claiming they were counterfeits. Criminal case number CMCC NO. 308 of 2017 (R vs Barloworld Limited & George Ngugi Wambui) was instituted against the Petitioner by the first Respondent. The second Respondent was the complainant in the said case.

4. The Petitioner successfully challenged the criminal in this Petition culminating in the judgement pronounced on 28th June 2017 in which the court decreed that:-

a) A declarationbe and is hereby issued that the first Respondents' action of seizing the petitioners goods on 18th November 2016 and detaining the same was effected without any factual/legal basis, consequently the same is illegal, null and void for all purposes.

b)A declaration be and is hereby issued that the decision to seize and detain the petitioners aforesaid goods and to mount criminal charges against the petitioner and a one George Ngugi Wambui was undertaken without any factual basis and was a flagrant abuse of powers conferred upon the first Respondent by the law and amounted abuse of statutory and judicial process, hence unconstitutional.

c)An order of certioraribe and is hereby issued to bring into this honourble court the proceedings in Nairobi -Milimani Chief Magistrates Criminal Case Number 308 of 2017-(Republic vs George Ngugi Wambui) for purposes of being quashed.

d)An orderof stay be and is hereby issued permanently staying the proceedings against the petitioner and the said George Ngugi Wambui in Nairobi, Milimani Chief Magistrates Criminal Case Number 308 of 2017 (Republic vs George Ngugi Wambui.).

e)An order of prohibition be and is hereby issued prohibiting the Respondents or any person acting for and on their behalf from further prosecuting or proceeding with the Chief Magistrates' Criminal case number 308 of 2017-Milimani-(Republic vs. George Ngugi Wambui ).

f)Thatthe first petitioner shall bear the costs of this petition.

5. It is significant to point out that even though the second Respondent who was the complainant in the criminal case, and who is now the applicant in this application, did not file any Response to the Petition nor did it participate in the case.

6. In the judgement, which the applicant seeks to stay, the court under the subheading "Effect of absence of the second Respondent from these proceedings" the court observed as follows:-

"At the outset, I must point out that failure by the second Respondent who is alleged to be the complainant in the criminal case and on whose complaint the prosecution was mounted has left a serious gap in the first Respondents case. The second Respondent is the party whose patent or intellectual property right are alleged to have been violated. He is the one whose goods are alleged to have been counterfeited. Thus, its presence in these proceedings was absolutely necessary for the just determination of this case. He was served on 4 April 2017 as evidenced by the affidavit of service filed on 7th April 2017 but did not appear or file a Response. I cannot comprehend how the first Respondent hoped to convince the court on the issues at hand in absence of the alleged complainants evidence.

The first Respondent made no effort to secure an affidavit from the second Respondent at least to support the allegations in support of the alleged charges and persuade the court that the prosecution is founded on sound factual basis. Worse still, the first Respondent did not avail a search to demonstrate the alleged owner of the alleged trade mark or to establish whose goods were counterfeited. There is no evidence of the genuine goods to judge whether the petitioners were truly counterfeits. This raises a fundamental question, that is whether or not the prosecution is founded on sound legal basis, and whether the seizure and prosecution is well grounded on law and facts for the court to allow the prosecution to proceed.

7. Thus, the applicant in this application did not participate in the proceedings nor did it file any papers. Now it seeks to stay the judgment pending appeal. It is not seeking to set aside on grounds that it was not heard. It seeks to stay pending an intended appeal.

8. The grounds in support of the application are that releasing the goods will infringe on its trade mark. The question of whose Trade Mark was infringed is to me a question of fact which requires evidence and which ought to have been determined at the trial if it was in issue. It would have helped the court to determine whether there was factual basis for instituting the criminal trial. Such a question, which was not canvassed at the trial owing to the applicants failure to participate at the trial cannot be determined in an appeal.

9. The applicant avers that the intended appeal raises crucial and jurisprudential questions which affects Kenya public. Cases are determined on the strength of evidence. Since, the applicant did not participate in the trial, one wonders what crucial and jurisprudential issues it will raise on appeal in a matter it opted not to participate. The issues raised in application are matters of evidence that would have been raised and considered at the trial not in an appeal.

10. Rule 32 (1) of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides that "An appeal or a second appeal shall not operate as a stay of execution or proceedings under a decree or order appealed."

11. In Winfred Nyawira Maina vs Peterson Onyiego Gichana,[1]the Court held that:-

"The foundation of the stay pending appeal is that the party is intending to file or has filed an appeal in the exercise of his constitutional right of appeal. He must, however, show sufficient cause and preponderantly, that, if his appeal succeeds, he will suffer substantial loss unless stay is ordered. Moreover, he must bring his application without unreasonable delay and give security sufficient to cover performance of the decree which may ultimately be payable by him.

12. In the case of Global Tours and Travels Ltd[2] it was held that:-

“.........Whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interests of justice. Such discretion is unlimited save that by virtue of its character as a judicial discretion; it should be exercised rationally and not capriciously or whimsically. The sole question is whether, it is in the interests of justice to order a stay of proceedings, and if it is, on what terms it should be granted.In deciding whether to order a stay the court should essentially weigh the pros and cons of granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of the case, the prima facie merits of the intended appeal in the sense of not whether it will probably succeed or not but whether it is anarguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought timeously.”

13. Considering that the applicant did not participate at the hearing, I am not persuaded that the applicant has an arguable appeal. Also, Relevant to this point is the decision rendered in Hassan Guyo Wakalo vs Straman EA Ltd[3]where it was held:-

“In addition the applicant must prove that if the orders sought are not granted and his appeal eventually succeeds, then the same shall have been rendered nugatory. These twin principles go hand in hand and failure to prove one dislodges the other”.

14. The applicant has not demonstrated that his appeal is arguable and that if the orders are not granted, it will be rendered nugatory. My view is fortified by the fact that this is an applicant who did not participate in the proceedings despite being served and hopes to persuade the appellate court to overturn a judgement he did not render his defence or evidence. Further, the applicant did not deem it fit to apply to set aside the judgement and seek leave to be heard.

15. It is also important to bear in mind that the court is required to balance the interests of both parties. In Machira T/A Machira & Co Advocates vs. East African Standard (No 2)[4] it was held that:-

“…to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage.That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court”.

16. At the hearing of this application, which was also supported by the counsel for the first Respondent, it emerged that the first Respondent had also filed a application at the court of appeal seeking similar orders and that the applicant now before me participated in the application before the Court of Appeal annual supported it. The first applicants counsel also supported the application before me. The implication is that both Respondents are pursuing two similar applications, one by the second Respondent before this court and the subject of this ruling and a second one in the court of Appeal filed by the first Respondent. Both parties appeared in both courts and vehemently supported each others applications.

17. At the time the parties appeared before me, the application before the Court of Appeal was pending for Ruling. Given the striking similarity of the reliefs sought in the two applications, and considering that the Respondents supported each others' application both in this court and in the Court of Appeal, crucial questions do arise such as whether it is open for the Respondents to file two identical applications, in this court and in the Court of Appeal seeking substantially identical reliefs and whether such conduct amounts to abuse of court process. The court notes that they did not disclose this to the court. It was only revealed by the Petitioner's counsel.

18. In Agnes Muthoni Nyanjui & 2 Others vs Annah Nyambura Kioi & 3 Others[5]I observed that "It is trite law that the court has an inherent jurisdiction to protect itself from abuse or to see that its process is not abused." The black's law dictionary defines abuse as “Everything which is contrary to good order established by usage that is a complete departure from reasonable use. An abuse is done when one makes an excessive or improper use of a thing or to employ such thing in a manner contrary to the natural legal rules for its use."[6]

19. The concept of abuse of court/judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. It is recognized that the abuse of process may lie in either proper or improper use of the judicial process in litigation. However, the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponents.[7]

20. The situations that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations:-

(a) Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.

(b) Instituting different actions between the same parties simultaneously in different court even though on different grounds.

(c) Where two similar processes are used in respect of the exercise of the same right.

(d) Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.

(e) Where there is no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.[8]

(f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.

(g) Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.

(h) Where two actions are commenced, the second asking for a relief which may have been obtained in the first. [9]

21. Abuse of judicial process is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexations and oppressive.[10] Abuse of process can also mean abuse of legal procedure or improper use of the legal process.[11] Justice Niki Tobi JSC of Nigeria observed that "abuse of court process creates a factual scenario where a party is pursuing the same matter by two court process. In other words, a party by the two court process is involved in some gamble; a game of chance to get the best in the judicial process."[12]

22. It’s settled law that a litigant has no right to purse paripasua two processes which will have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks. In my humble view, the two processes are in law not available simultaneously. The pursuit of the two processes at the same time constitutes and amount to abuse of court/legal process."[13]

23. Thus, the multiplicity of actions on the same matter between the same parties even where there exist a right to bring the action is regarded as an abuse.[14] The abuse lies in the multiplicity and manner of the exercise of the right rather than exercise of right per se. The abuse consists in the intention, purpose and aim of person exercising the right, to harass, irritate, and annoy the adversary and interface with the administration of justice.[15]

24. Turning to this case, I find no difficulty in concluding that the two identical applications by the Respondents pursuing identical orders and supporting each other's application without disclosing the existence of the application in the Court of Appeal amount to gross abuse of court process.

25. Counsel for the Petitioner also stated that the orders stopping the criminal prosecution were presented before the magistrate and the case was terminated, hence, the order having been enforced, the prayer to stop its implementation is overtaken by events.

26. On the whole, I find that the application before me lacks merit. The upshot is that the application date 3rd day of July 2017 is dismissed with costs to the Petitioner/Respondent.

Orders accordingly

Signed, Dated, Delivered at Nairobi this 3rdday ofNovember,2017

John M. Mativo

Judge

[1] {2015} eKLR

[2] WC No. 43 of 200 (UR)

[3] {2013}eKLR

[4] {2002} KLR 63

[5] Succ Cause no 920 of 2009

[6]Black Law Dictionary, Sixth Edition Black, Henry Campbell, Black Law Dictionary Sixth Edition, Continental Edition 1891- 1991 P 990 P 10-11

[7] Public Drug Co V Breyerke cream Co, 347, Pa 346, 32A 2d 413, 415

[8] Jadesimi V Okotie Eboh (1986) 1NWLR (Pt 16) 264

[9] (2007) 16 NWLR (319) 335.

[10] In the words of Oputa J.SC (as he then was) in (1998) 4SCNJ 69 at 87.

[11] Ibid

[12] Supra Note 1

[13] Supra note 1

[14]Ibid

[15] Ibid