[2016] KEHC 8532 (KLR)
The court determined that the issues in HCC 305/2015 and HCC 405/2015 are closely related, centering on the ownership of drugs and intellectual property rights, specifically trademark and passing off claims. Given the overlap in factual and legal questions, and in the interest of expeditious and efficient...
Source-derived case information.
- Citation
- [2016] KEHC 8532 (KLR)
- Parties
- Plaintiff: Lords Healthcare Limited; Defendant: Cipla Limited; Defendant: Surgipharm Limited; Respondent: Pharmacy and Poisons Board
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 305 of 2015
- Procedural Posture
- Civil Suit / Ruling on Consolidation and Hearing Directions
- Outcome
- The two suits are to be heard together; parties to comply and file relevant pleadings within 30 days; costs in the cause.
- Judges
- CM Kariuki
- Legal Topics
- Trademark Ownership, Passing Off, Commercial Disputes, Consolidation of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lords Healthcare Limited
Plaintiff
Cipla Limited
Defendant
Surgipharm Limited
Defendant
Pharmacy and Poisons Board
Respondent
Procedural Posture
Civil Suit / Ruling on Consolidation and Hearing Directions
Legal Issues
- 1 Whether the two suits should be heard together given the intertwined issues of drug ownership and intellectual property.
- 2 Whether the hearing should proceed via viva voce evidence as permitted under the Mutunga Rules.
- 3 Whether the PPB report determined the petition or if the matters require full hearing in the Commercial Division.
Ratio Decidendi
The court determined that the issues in HCC 305/2015 and HCC 405/2015 are closely related, centering on the ownership of drugs and intellectual property rights, specifically trademark and passing off claims. Given the overlap in factual and legal questions, and in the interest of expeditious and efficient resolution, the court ordered that both matters be heard together. The court further held that the Mutunga Rules permit viva voce evidence in constitutional petitions, and that nothing in the pleadings precludes such a hearing. The PPB report did not resolve the substantive disputes, necessitating a full hearing before the Commercial Division. The court exercised its discretion to...
Court Disposition
The two suits are to be heard together; parties to comply and file relevant pleadings within 30 days; costs in the cause.
Orders
- The two suits HCC 305/2015 and 405/2015 will be heard together.
- Parties in both matters shall comply within 30 days and file any relevant pleadings within the same period.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI HIGH COURT
COMMERCIAL & ADMIRALTY DIVISIONS
CIVIL SUIT NO 305 OF 2015
LORDS HEALTHCARE LIMITED…….………………………PLAINTIFF
VERSUS
CIPLA LIMITED………………………………………….. 1STDEFENDANT
SURGIPHARM LIMITED…………………………………2ND DEFENDANT
CONSOLIDATED WITH
PETITION NO. 593 OF 2014
CIPLA LIMITED……………………………………………….PETITIONER
VERSUS
PHARMACY AND POISONS BOARD………………..1ST RESPONDENT
LORDS HEALTHCARE LIMITED…….………………2ND RESPONDENT
RULING
1. By a ruling dated 18. 8.2015 Lenaola J in Petition No. 305/2015 directed that inter alia;
“The matter herein being purely commercial dispute is transferred to the Commercial Division of the High Court for HEARING AND DETERMINATON…”
2. Subsequently, the Court file was transferred to Commercial Division and re-registered as Civil Case No.405/2015. Though the file appears to have changed from Constitutional to Civil case, the reliefs sought remained Constitutional in form and nature. The Orders sought seems to be in 3 broad category namely; declaratory, judicial review and injunctive.
3. The petition or rather now the HCC No. 405/2015 is still alive and pending as between the CIPLA LTD PETIONER/PLAINTIF AND PPB AND LORDS HEALTH CARE Respondents/Defendants.
4. HCC NO.305/2015 is between Health Lords as Plaintiff against CIPLA Ltd and Surgipham Ltd as Defendants. The reliefs sought in the Plaint are injunctive and damages. The core issues in both matters revolve and turn on the ownership of the drugs in issue and the trade mark and/ or passing off.
5. There is nothing in the pleadings of the two matters which prevent the hearing for the 2 matters via viva voce evidence. TheConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules ( MUTUNGA Rules) 2014 do allow the hearing of constitutional petition via viva voce evidence.
6. To expedite the disposal of the 2 matters, it is prudent and in line with Article 159,2,b of the Constitution of Kenya and Section 1A and 1B CPA to hear the two matters together to enable a determination of the two to be expedited. The Plaintiff’s submissions revolve on attack on the report by PPB and loses sight that the issue was the mode of disposing the 2 suits.
7. The Defendants seems to be inclined to the petition (HCC 405/2015) being disposed first then deal with HCC.305/2015. The court did not want to be drawn into the issues which touch on the merit of the 2 matters. It is enough to note that the PPB report was not meant and did not determine the petition and that is why the Judge ordered the matter to be determined by Commercial Division.
8. The issues in the 2 matters are intertwined and revolve in the province of the intellectual property and ownership thereof of the drugs.
9. The Court is inclined to hear all the parties in the 2 disputes in the 2 matters.
10. The court thus makes the following Orders:
The 2 suits HCC. 305/2015 and 405/2015 will be heard together.
The parties in the 2 matters shall comply within 30 days and file any relevant pleadings they deem fit within the same period.
Parties to take date for directions for C.M.C after compliance. Costs in the cause.
Dated, signed and delivered in court at Nairobi this 11th day of March, 2016.
………………………
C. KARIUKI
JUDGE