[2009] KEHC 3058 (KLR)
The High Court lacks original jurisdiction to hear disputes that fall within the purview of the Industrial Property Act. The Act establishes a specific dispute resolution mechanism, beginning with the Industrial Property Tribunal, which is empowered to grant remedies and make determinations in the first instance....
Source-derived case information.
- Citation
- [2009] KEHC 3058 (KLR)
- Parties
- Plaintiff: Christopher Xallion Ondieki; Defendant: Safaricom Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 748 of 2008
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; suit struck out for want of jurisdiction
- Legal Topics
- Industrial Property Tribunal Jurisdiction, Original Vs Appellate Jurisdiction, Preliminary Objection, Remedies Under Industrial Property Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Xallion Ondieki
Plaintiff
Safaricom Limited
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has original jurisdiction to hear disputes arising under the Industrial Property Act.
- 2 Whether the matter should first be filed before the Industrial Property Tribunal as provided by statute.
Ratio Decidendi
The High Court lacks original jurisdiction to hear disputes that fall within the purview of the Industrial Property Act. The Act establishes a specific dispute resolution mechanism, beginning with the Industrial Property Tribunal, which is empowered to grant remedies and make determinations in the first instance. Only after the Tribunal has rendered a decision may a party appeal to the High Court. Entertaining the matter at first instance would be contrary to the statutory scheme and would render the court's actions void for want of jurisdiction. The preliminary objection is therefore upheld, and the matter is struck out with directions to file before the appropriate Tribunal.
Court Disposition
preliminary objection upheld; suit struck out for want of jurisdiction
Orders
- The matter is to be filed in the Industrial Property Tribunal.
- Costs of the application to be paid by the plaintiff to the defendant.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 748 of 2008
CHRISTOPHER XALLION ONDIEKI …………………... PLAINTIFF
VERSUS
SAFARICOM LIMITED ………………………………… DEFENDANT
R U L I N G
Preliminary Objection dated 18/12/08 raised on the ground that Chamber Summons dated 16/2/2008 and suit ought to be heard and determined in the Industrial Property Tribunal under Section 115 of the Act which provides:-
“Any party to the proceedings before the Tribunal may appeal in accordance with Rules made under this part from any order or decision of the Tribunal to the High Court.”
The Tribunal is established under Section 113 of the Act for purpose of hearing and determining appeals in accordance with Section 112 thereof. It appears that the Act provides for an elaborate method of resolving disputes. Section 118 gives the Managing Director appointed under Section 11 powers to refer matters to the Tribunal and that is where procedure starts. The Tribunal is empowered to grant the remedies as provided under Section 106,under Section 113 and 114 such as injunction and other. Section 115 provides for appellate powers to the High Court.
It is clear the matter arises from the Tribunal and if there is need on appeal to the High Court which is empowered to exercise appellate jurisdiction over the Industrial Property Tribunal. The High Court has no original jurisdiction under the Act.
I agree with the defendant and authorities relied on. The issue
of jurisdiction is crucial without which the court is acting in vain. I uphold the Preliminary Objection and order that this matter be filed in the Industrial Property Tribunal.
Costs of the application to be paid by plaintiff to defendant.
It is so ordered.
DATED, SIGNED and DELIVEREDat Nairobi this 31st day of July, 2009.
JOYCE N. KHAMINWA
JUDGE