[2014] KEHC 8072 (KLR)
The court held that, following the judgment in favour of the plaintiff which included an order for inquiry into damages or account of profits, the proper procedure is for the plaintiff to formally apply for such inquiry. The application must be supported by affidavit evidence detailing the basis and quantum of...
Source-derived case information.
- Citation
- [2014] KEHC 8072 (KLR)
- Parties
- Plaintiff: Macmillan Kenya (Publishers) Limited; Defendant: Mount Kenya Sundries Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2503 of 1995
- Procedural Posture
- Civil Case / Post Judgment Directions on Inquiry Into Damages
- Outcome
- Directions issued for formal application for inquiry into damages; costs in the application.
- Judges
- DW Mbuteti
- Legal Topics
- Injunctions, Assessment of Damages, Account of Profits, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Macmillan Kenya (Publishers) Limited
Plaintiff
Mount Kenya Sundries Limited
Defendant
Procedural Posture
Civil Case / Post Judgment Directions on Inquiry Into Damages
Legal Issues
- 1 Whether the plaintiff is entitled to an inquiry into damages following the judgment in its favour.
- 2 What procedure should be followed for the inquiry into damages or account of profits.
Ratio Decidendi
The court held that, following the judgment in favour of the plaintiff which included an order for inquiry into damages or account of profits, the proper procedure is for the plaintiff to formally apply for such inquiry. The application must be supported by affidavit evidence detailing the basis and quantum of damages claimed. Upon service of the application, the defendant will have an opportunity to respond, after which the court will issue further directions on the conduct of the inquiry. The court noted the significant delay by the plaintiff in seeking these directions but did not bar the application, instead setting out the procedural steps to be followed. Costs of the directions will...
Court Disposition
Directions issued for formal application for inquiry into damages; costs in the application.
Orders
- Plaintiff to formally apply for inquiry into damages, supported by affidavit evidence.
- Defendant to be served and given opportunity to respond.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. 2503 OF 1995
MACMILLAN KENYA (PUBLISHERS) LIMITED .……PLAINTIFF
V E R S U S
MOUNT KENYA SUNDRIES LIMITED…..………….DEFENDANT
R U L I N G
1. Learned counsels for the Plaintiff requested for mention of this case on 5th of May 2014 for purposes of directions on “enquiry into damages”. This is a reference to the judgment dated and delivered on 23rd October 2008 (Visram, J). That judgment was in favour of the Plaintiff and was entered “as sought in the plaint”. All four reliefs in the plaint were allowed. Those reliefs were -
(a) An injunction to restrain the Defendant from doing the following acts: selling by way of trade or exposing or offering for sale its saidKenya Pictorial Tourist Route Mapor any map based thereon.
(b) An order for delivery up of all such maps as are in the Defendant’s possession or control.
(c ) An inquiry as to damages, or alternatively, an account of profits and payment of all sums found due upon taking such inquiry.
(d) Interest and costs.
2. With regard to relief (c) the learned judge further ordered as follows -
“...the parties are at liberty to apply for further directions and orders should they require same”.
3. As already seen, this judgment was passed on 23rd October 2008. It is not readily apparent why the Plaintiff has waited over 3 ½ years to seek directions with regard to enquiry as to damages.
4. It seems to me that this enquiry must be in the form of taking additional evidence. As a starting point, let the Plaintiff formally apply for such inquiry. The application will need to be supported by an affidavit setting out such evidence as it will rely upon in support of the quantum of damages sought. Once served the Defendant can then respond and the court will then give further directions on how to proceed. Those will be the directions of the court for the time being. It is so ordered. Costs will be in such application to be filed.
DATED AND SIGNED AT NAIROBI THIS 1ST DAY OF JULY 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 9TH DAY OF JULY 2014