https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7677

Dynamic Chemicals Limited & 3 others v Director of Public Prosecutions & another (Judicial Review Miscellaneous Application E270 of 2025) [2026] KEHC 7677 (KLR) (Judicial Review) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7677 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review Miscellaneous Application E270 of 2025 TW Ouya, J June 4, 2026 Between Dynamic Chemicals Limited 1st Applicant Shah Nishit Prabhulal 2nd Applicant Violet Vodembeke Ongayi 3rd Applicant Raphael Komu 4th Applicant and Director of Public Prosecutions 1st Respondent Anti- Counterfeit Authority 2nd Respondent Judgment 1.The Applicant moved this honourable court vide a Notice of Motion dated September 2025 for orders that:i.An Order of Certiorari do issue to quash the decision of the 1st Respondent to prefer criminal charges against the Applicants in Criminal Case No. MCCR/E064/2025 for being irrational, unreasonable, procedurally improper, and made without proper consideration of material facts.ii.An Order of Prohibition do issue restraining the 1 st Respondent from further prosecuting the Applicants in the said criminal case or instituting any similar proceedings based on the same facts and circumstances.iii.A declaration be and is hereby issued that the decision to prosecute the Applicants was made in breach of the principles of natural justice, procedural fairness, and the Applicants' constitutional rights under Articles 22, 23, 47, and 50 of the Constitution. 2.The Application was premised on grounds in the affidavit of Violet Vodembeke Ong'ayi on grounds that the decision to prosecute the Applicants is manifestly irrational and unreasonable as it lacks any factual or legal foundation, given that the Applicants have never manufactured, marketed, sold, or dealt in products under the "strongbond" trademark. 3.The Applicant maintains that they are legitimate proprietors and users of the trademark "Dymajic" (Trade Mark No. 53192), which is distinct, registered, and bears no resemblance or relation to "strongbond" and it is the Applicants' tenant, one Mr. Johnson Kioko Mutiso, who operated independently under his own "Strongbond" label. Therefore, prosecuting the Applicants for trademark violations concerning a mark they have never used or claimed ownership of constitutes a fundamental abuse of the criminal justice process as a mere landlord-tenant relationship cannot form the basis for criminal liability for counterfeiting offences. 4.It is the Applicant’s case that on 2nd August 2024, the 1st Applicant entered into a lease agreement with Mr. Johnson Kioko Mutiso, renting a portion of its premises as workspace for his business activities. Mr. Mutiso operated independently and exercised exclusive control over those operations, separate from those of the Applicants. 5.The 2nd Respondent entered the Applicants' premises purportedly to conduct an inventory relating to goods bearing the label "strongbond" and to inspect the premises. In the course of that inspection, they seized equipment used in the manufacture of the Applicant's registered "Dymajic" brand, alleging that it was being used to manufacture products under the mark "Strongbond." 6.The Applicant contended that the Respondents failed to conduct proper investigations to establish the actual relationship between the Applicants and the alleged counterfeit goods before instituting criminal proceedings. Moreover, the decision to prosecute was made without affording the Applicants a fair opportunity to explain their position and the true nature of their relationship with the alleged counterfeit activities. 7.The Applicant contended that the Respondent’s decision therefore violates the Applicants' constitutional rights to fair administrative action (Article 47), fair trial (Article 50), human dignity (Article 28) and protection from discrimination (Article 27). 8.The Respondent opposed the Application vide grounds of opposition by Edna Ntabo, Principal Prosecution Counsel on grounds that the decision to charge made by the Respondent in Criminal Case No. MCCR E064/2025 was based on the sufficiency of evidence with a realistic prospect of conviction. 9.According to the Respondent, the prosecution of the Applicants was instituted with reasonable and probable cause and was not actuated by any malice from the 1st Respondent, which independently reviewed the evidence and decided to charge based on the fact that there was incriminating evidence connecting the Applicants to the offences charged in MCCR E064/2025. 10.The Respondent posited that in making the decision to charge, the 1st Respondent has not abrogated, breached, infringed or violated any provision of the Constitution or any human and fundamental rights of the Petitioners or any other written law or regulations made thereunder. Instead, the Respondent objectively assessed the totality of the evidence both for and against the suspect at that time of deciding to charge and satisfied themselves that it established a realistic prospect of conviction. 11.According to the Respondent, the accuracy and correctness of evidence or facts gathered in an investigation can only be assessed and tested by the trial court which is best equipped to deal with the quality and sufficiency of the evidence adduced in support of the charges in the event of a criminal prosecution. The charges preferred will be subjected to a criminal trial process. Moreover, the issues raised by the Applicants in the application amount to a defense which ought to be canvassed before the trial court. 12.The 2nd Respondent filed a Replying Affidavit sworn by Abdi Abikar a Principal Inspector of the 2nd Respondent and the Regional Manager for Nairobi Region stating that the 2nd Respondent received a Complaint which met the requirements of regulation 13 of the Anti-Counterfeit Regulations, 2010 and was accompanied by a valid certificate of registration of an intellectual property right being a certificate of registration of Trademark No. 124320. 13.Investigations demonstrated that there was existence of an intellectual property right in the name, style and nature of a trademark that the 2nd Respondent through its inspectors undertook an inspection on 31st October 2024 that confirmed that the Applicants were involved in the production of strongbond dye that bore a resemblance to the intellectual property rights owner's protected goods, and proceeded to seize the same. 14.According to the 2nd Respondent, the Applicants were found in actual possession and production of "Strongbond" dye violating the trademark of the intellectual property rights owner and the tools used in the production thereof were also seized. 15.The court directed that the Application be canvassed through written submissions. 16.The Applicant submitted that the decision to institute criminal charges against them is illegal and irrational, as the mere existence of a tenant-landlord relationship is not proof that the Applicant was engaged in counterfeit activities that warrant the intervention of this honourable court. 17.Moreover, the Applicant submitted that they provided overwhelming evidence that demonstrated the existence of a tenancy relationship. Had the Respondent considered this, there would have been no legal basis for instituting the criminal charges. 18.Accordingly, the Applicants submitted that the decision of the Respondent to institute criminal charges is not in the public interest and thus an abuse of the prosecutorial mandate of the Respondent. 19.The 2nd Respondent maintained that the Applicants failed to demonstrate any illegality, irrationality or procedural impropriety by the Respondent to warrant the intervention of this honourable court in granting the orders sought. Therefore, the Respondent urged that the Application be dismissed with costs. Analysis and determination 20.The Application has been brought pursuant to Section 6 and 7 of the Law Reform Act and Order 53 of the Civil Procedure rules. 21.The prerequisite for institution of judicial review proceedings pursuant to this provision is the seeking of leave to institute judicial review proceedings. In the instant case however, the Applicant filed the substantive Motion before obtaining leave of the Court. 22.As a matter of practice, this Court before considering the merits of the instant application first ascertains if it has properly been moved. This is because, as Nyarangi, JA said in his famous and time-honored statement in the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, jurisdiction is everything. 23.Whether or not the jurisdiction of the court has been properly invoked will depend on either the nature of the pleadings, the nature of the proceedings or the relief claimed. 24.It is evident from the prayers sought that the applicant has instituted judicial review proceedings. Order 53 (1) of the Civil Procedure Rules provide that:(1)1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.2)An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —(a)a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; andb)affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application. 25.In the instant application, it is evident that the Applicant filed a Chamber summons dated 2nd September 2025 accompanied with a statutory statement of even date. However, before leave could be granted to the Applicants, they proceeded to file the substantive motion for judicial review. 26.The Court of Appeal in Civil Appeal No. E176 of 2022 Isaac Aluoch Polo Aluochier versus IEBC & others observed thus regarding the nature of judicial review proceedings and the prerequisite for leave:“ 33.What then is the procedure for bringing Judicial Review application? The submission by Mr. Aluochier that this application is under Article 47 of the Constitution and therefore not subject to Order 53 Civil Procedure Rules and Section 8 and 9 of the Law Reform Act cannot hold water. Judicial Review is a special jurisdiction. ... A party approaching court for Judicial Review orders of Certiorari, Mandamus and Prohibition must comply with the procedure under Order 53 of the Civil Procedure Rules. He must seek the court’s leave first through a Chamber Summons Application supported by a Statement of Facts and a Verifying Affidavit and annexures in support of the prayers. In this case, the applicant should have annexed the impugned decision. It is after grant of leave, that an applicant is allowed to file the Notice of Motion application within 21 days. Seeking of leave is meant to expedite the process and weed out any frivolous applications. (Emphasis applied) 27.The Applicant has done none of that. While they have filed the Chamber Summons and statutory statements as required, there is no evidence that leave was ever granted before the substantive motion was filed. Accordingly, the Application has failed to comply with the provisions of Order 53 rule 1, which are captioned in mandatory terms. 28.While it is this Court’s position of principle that prescriptions of procedure and form should not trump the primary object of dispensing substantive justice to the parties, it is to be borne in mind that rules of procedure are not irrelevant but are the handmaiden of justice that facilitate the right of access to justice in the terms of Article 48 of the Constitution. 29.In the case of James Mangeli Musoo v Ezeetec Limited [2014] eKLR it was held that:“A technicality, to me is a provision of law or procedure that inhibits or limits the direction of pleadings, proceedings and even decisions on court matters. Undue Regard to technicalities therefore means that the court should deal and direct itself without undue consideration of any laws, rules and procedures that are technical and or procedural in nature. It does not, from the onset or in any way, oust technicalities. It only emphasizes a situation where undue regard to these should not be had. This is more so where undue regard to technicalities would inhibit a just hearing, determination or conclusion of the issues in dispute.” 30.The reason for leave was discussed in the case of County Council of Kwale & Another Ex-Parte Kondo & 57 Others, where the court held that leave may only be granted if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant; the test being whether there is a case fit for further investigation at a full inter parties hearing of the substantive application for judicial review. Granting of leave to file for judicial review is an exercise of the court’s discretion, but as always it has to be exercised judiciously. 31.In this regard, the Supreme Court decision in Raila Odinga vs. the Independent Electoral and Boundaries Commission and 3 Others [2013] EKLR is instructive. In its decision, the Supreme Court had this to say:“Our attention has repeatedly been drawn to the provisions of Article 159 (2) (d) of the Constitution which obliges a court of law to administer justice without undue regard to procedural technicalities. The Article simply means that a court of law should not pay undue attention to procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with procedural imperatives as they seek justice from courts of law.” 32.We do not tire to remind litigants that mandatory rules of procedure, as is Order 53 Rule 1 of the Civil Procedure Rules, are not merely a cosmetic add-on to substantive law. They cannot be likened to a pack of cherries from which one’s choice to pick is as good as the choice not to. Indeed, the observance of such rules is mandatory, and for good reason. 33.As Kiage JA, observed in this Court’s decision in Nicholas Kiptoo Arap KorirSalat vs. the Independent Electoral and Boundaries Commission and 6 Others [2013[ eKLR:“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned.”“We have said enough of this matter, which to some might appear trivial, though fundamental in the determination of the issue as to whether the appellant’s Motion for review of the 1st Respondent’s decision stood the competency test weighed against mandatory rules of procedure. Having carefully considered the appeal before us, the judgment of the High Court and the respective positions of the parties considered against the Constitution, the statute and judicial precedents relevant to the issue, we reach the inescapable conclusion that the appellant’s appeal must fail. It is hereby dismissed with costs to the respondents.” 34.I am bound by the said decision of the Court of Appeal, that in Judicial Review proceedings, obtaining leave of court is mandatory before filing the substantive application. 35.The Application dated 2nd September 2025 is defective for want of leave, and the same is struck out with costs. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 4TH DAY OF JUNE, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Moses Kurgat for ApplicantOruko for Ms. Ntabo for 1st RespondentKamolo for 2nd RespondentNyabuto – Court Assistant