[2011] KEHC 1429 (KLR)
The court refused to grant the interim injunction because the plaintiffs failed to plead any clear intellectual property right or registered trademark in the plaint, and their explanation for the seven-month delay in seeking relief was unconvincing. The court held that equitable relief such as an interim injunction...
Source-derived case information.
- Citation
- [2011] KEHC 1429 (KLR)
- Parties
- Plaintiff: David Musau Muteti; Plaintiff: Winnie Nyambura Kimani; Plaintiff: Ndububu Thuo; Defendant: Redsky Limited; Defendant: Safaricom Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 293 of 2011
- Procedural Posture
- Civil Suit / Ruling on Interim Injunction Application
- Outcome
- interim injunction refused
- Judges
- DW Mbuteti
- Legal Topics
- Interim Injunctions, Delay in Seeking Relief, Intellectual Property Rights, Equitable Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Musau Muteti
Plaintiff
Winnie Nyambura Kimani
Plaintiff
Ndububu Thuo
Plaintiff
Redsky Limited
Defendant
Safaricom Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Interim Injunction Application
Legal Issues
- 1 Whether the plaintiffs are entitled to an interim injunction restraining the defendants from proceeding with the soccer tournament.
- 2 Whether the plaintiffs have demonstrated any clear intellectual property interest in the tournament or related slogans.
- 3 Whether the plaintiffs' delay in seeking relief disentitles them to equitable remedies.
Ratio Decidendi
The court refused to grant the interim injunction because the plaintiffs failed to plead any clear intellectual property right or registered trademark in the plaint, and their explanation for the seven-month delay in seeking relief was unconvincing. The court held that equitable relief such as an interim injunction is not available to litigants who sit on their rights and approach the court only at the last minute. Furthermore, the court considered the significant costs already incurred by the defendants in organizing the tournament and the lack of any security offered by the plaintiffs for the interim order sought. The balance of convenience and the interests of justice did not favour...
Court Disposition
interim injunction refused
Orders
- The application for interim injunction is refused.
- The chamber summons dated 07/07/2011 is fixed for hearing on 17th October, 2011.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
CIVL SUIT NO. 293 OF 2011
1. DAVID MUSAU MUTETI
2. WINNIE NYAMBURA KIMANI
3. NDUBUBU THUO................................................................... PLAINTIFFS
V E R S U S
1. REDSKY LIMITED
2. SAFARICOM LIMITED........................................................ DEFENDANTS
RULING/ORDER
Chamber summons dated 07/07/2011 is fixed for hearing on 17th October, 2011. The Defendants may within 14 days of today file and serve papers in response to the application.
In their turn the Plaintiffs may within 7 days of service file supplementary affidavit in answer to any new issues raised in the replying affidavits.
Regarding interim injunction, I note as follows:-
1. There is not pleaded in the plaint any clear intellectual proprietary interest in Sakata Ball Soccer Tournament, The Dream Lives On, Jonathan Niva Cup or some such other slogan. No registered trade mark or some other intellectual property has been pleaded.
2. It is common ground that the soccer tournament in question has been running from the beginning of the year, and that the national final is scheduled to be played on Saturday 23rd July, 2011. The Plaintiffs have thus come to court only a few days to that final.
3. The explanation for the seven-month delay in coming to court, as given by the Plaintiffs’ learned counsel, is that the Plaintiffs had “to observe the format of the tournament, the concept behind it, the slogans used and the various facets of the tournament” before coming to court.
Observe violation of your rights for seven months and come to court only a few days before conclusion of the tournament?!
I am not persuaded that a credible reason has been given for the long delay in coming to court. A litigant who seeks equitable relief, and interim injunction is one such, must demonstrate first and foremost that he has come to court as soon as he possibly could. A litigant who sits on his rights is not deserving of any discretion of the court.
There is also the issue of the costs involved. It cannot be gainsaid that it costs money, probably lots of money, to organise a national soccer tournament. To stop the tournament when only the final remains to be played must necessarily involve the Defendants in considerable costs. The Plaintiffs have not offered any proper security for the interim order sought. In the circumstances, I hold that it would not be in the interests of justice to grant any interim injunction, and the same is refused.
Signed
H.P.G. WAWERU
JUDGE
19/07/2011
COURT: The application to be heard by any other judge of the Civil Division.
H.P.G. WAWERU
JUDGE