https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13081

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **HCCHR PETITION NO. E012 OF 2025** NAIROBI BEAUTY WORLD LIMITED………....1ST PETITIONER/APPLICANT ABDIRAHMAN HASSAN………………………..2ND PETITIONER/APPLICANT FATHIYA SHEIKH ALI…………………………...3RD PETITIONER/APPLICANT VERSUS THE ANTI-COUNTERFEIT AUTHORITY……………..….…1ST RESPONDENT SIME DERBY OILS PROFESSIONAL SDN. BDH………..….2ND RESPONDENT KENYA INDUSTRIAL PROPERTY INSTITUTE…………..…3RD RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS…………….4TH RESPONDENT **RULING.** 1. On 9th April 2026, this Court delivered Judgment on the Petition dated 23rd September 2025 and issued an order of prohibition restraining the 1st and 4th Respondents, their officers, agents or any person acting under their authority, from arresting, detaining, charging or prosecuting the Applicants in connection with ACA/HQ/ENF/IPRC/69/2023, a complaint lodged by agents of the 2nd Respondent. The Court further awarded the Applicants costs of the Petition against the 1st Respondent. 2. Aggrieved by aspects of the Judgment, the Applicants filed the present application dated 27th April 2026 seeking, inter alia, review and setting aside of the findings and orders permitting the 1st Respondent to retain the subject goods in safe custody; an order directing that the goods be released to the Applicants in conformity with the orders in HCCOMM No. E604 of 2023, Sime Darby Oils Professionals SDN.BHD v Nairobi Beauty World; orders barring the accrual of storage charges and directing that any charges incurred during the period of detention be nullified or borne by the 1st Respondent; and review of the finding that the complainant had locus standi to lodge and maintain the complaint. 3. The application is supported by the affidavit of Abdirahman Abukar Hassan sworn on 27th April 2026. The Applicants contend that the order directing the 1st Respondent to retain the goods is inconsistent with the orders issued in HCCOMM No. E604 of 2023. They further contend that they continue to incur substantial storage charges as a result of the continued custody of the goods. 4. The Applicants also contend that the Court failed to consider section 33 of the Anti-Counterfeit Act and Regulation 18(1) of the Anti-Counterfeit (Amendment) Regulations, 2021, in determining whether the complainant had locus standi. They submit that the Judgment contains an error apparent on the face of the record and that there exists sufficient reason to warrant review. 5. The 1st Respondent opposed the application through grounds of opposition dated 8th June 2026. It contends that the Court is functus officio, having substantively determined the issues raised in the Petition. It further submits that the Applicants have introduced matters that were neither pleaded nor determined in the Petition and that the Court had already addressed the continued custody of the goods under the Anti-Counterfeit Act. The 1st Respondent maintains that the Court was not bound by the decision in HCCOMM No. E604 of 2023, which arose from an interlocutory application. 6. The 2nd Respondent opposed the application through the Replying Affidavit of Abdulkadir Warsame sworn on 26th May 2026. It contends that the Applicants have not met the threshold for review under Order 45 Rule 1 of the Civil Procedure Rules and are seeking to re-litigate matters conclusively determined by the Court. It further submits that the Applicants have introduced new matters and that the orders sought would prejudice its proprietary rights before the determination of the pending civil disputes concerning the trademark. The 3rd and 4th Respondents did not file responses. 7. The application was canvassed through written submissions. The Applicants’ submissions are dated 23rd June 2026, those of the 1st Respondent 20th July 2026, and those of the 2nd Respondent 1st July 2026. 8. The Applicants submit that the Court has jurisdiction to entertain the application under Articles 159 and 165(3)(b) of the Constitution and Rules 3 and 25 of the Mutunga Rules. They rely on **Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others (2012) eKLR** and **Ndambiri & another v Nairobi Metropolitan Services & 6 others; Harambee Sacco & Cooperative Society Limited & 6 others (Interested Parties) [2024] KEELC 6205 (KLR).** 9. The Applicants contend that there is an error apparent on the face of the record because, having found that the continued detention of the goods was unconstitutional, the Court nevertheless directed their continued custody. They rely on **National Bank of Kenya Ltd v Njau (1997) KECA 71 (KLR).** They further contend that the finding on the complainant’s locus standi was inconsistent with section 33 of the Act and the Regulations and rely on Kenya Revenue Authority v Doshi Iron Mongers & another, **Civil Appeal No. 162 of 2006 [2016] KECA 378 (KLR).** 10. The Applicants also urge the Court to consider the prolonged deprivation of their property and the continuing accrual of storage charges, with reference to Article 40 of the Constitution. 11. In response, the 1st Respondent submits that there is no error apparent on the face of the record and that the Applicants cannot rely on the Court’s findings concerning Article 40 to reopen the matter. It further **distinguishes Anti-Counterfeit Authority v Wanyange & 4 others, Civil Appeal No. 473 of 2019 [2025] KECA 1540 (KLR),** and maintains that the continued custody of the goods arose from the pending trademark dispute between the 1st Applicant and the 2nd Respondent. 12. The 1st Respondent further submits that the issue of storage charges was not pleaded and cannot constitute sufficient reason for review. It relies on **Communications Authority of Kenya v Okoiti & 8 others [2020] KECA 754 (KLR).** It also maintains that Rule 25 of the Mutunga Rules does not permit the Court to revisit issues upon which it has made final findings. 13. The 2nd Respondent similarly submits that the Applicants’ reliance on Regulation 18(1) constitutes a new issue that was not pleaded. It contends that the prayers seeking release of the goods invite the Court to sit on appeal over its own Judgment and would conflict with the subsisting orders in HCCOMM No. E604 of 2023. It further submits that storage charges were neither pleaded nor sought as relief in the original Petition. 14. Having considered the application, the responses and the rival submissions, the issue for determination is whether the Applicants have established a basis for review of this Court’s Judgment delivered on 9th April 2026. 15. This Court’s jurisdiction has been challenged by the 1st Respondent on the ground that the Court is functus officio and should therefore not entertain the instant application. Jurisdiction goes to the root of the Court’s power to hear a dispute or preside over a matter before it. It is therefore necessary to address this issue on priority as its determination may be dispositive of any other issues arising in the application. 16. In **Raila Odinga vs Independent Electoral & Boundaries Commission & 3 others (2013) KESC 8 (KLR)**, the Supreme Court held as follows in regard to the issue of functus officio: - *“A court is functus when it has performed all its duties a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the Court cannot review or alter its decision, any challenge to its ruling on adjudication must be taken to a higher court if that right is available.”* 1. Rule 25 of the Mutunga Rules provides as follows: - **“An order issued under rule 22 may be discharged, varied or set aside by the Court either on its own motion or on application by a party dissatisfied with the order.”** 1. Rule 22 on the other hand provides for filing of written submissions and authorities by parties in constitutional petitions. 2. My reading of the above provisions is that the Mutunga Rules do not explicitly provide for review of a merit Judgment. Under Article 165(3) of the Constitution as well as section 3A of the Civil Procedure Act, this Court is clothed with inherent jurisdiction, when necessary to cure and bridge that gap. 3. Whereas constitutional litigation may not be viewed purely from the prism of ordinary civil adjudication, the procedure adopted by Courts in dealing with constitutional petitions is akin to civil proceedings. Accordingly, where a party invokes the Court’s review jurisdiction under Order 45 of the Civil Procedure Rules, the Court is duty bound to make a determination on the application before it on its merits. Shutting out a party merely because the Mutunga Rules do not expressly provide for such jurisdiction would be a travesty of justice and a violation of Articles 48 and 50(1) of the Constitution which guarantees every person the right to access to justice and the right to be heard. 4. I therefore find that this Court has jurisdiction to review its decision hence the instant application is properly before Court. Accordingly, the 1st Respondent’s challenge to this Court’s jurisdiction on account of the Court being functus officio is declined. 5. Order 45 of the Civil Procedure Rules provides for exercise of this Court’s review jurisdiction on the grounds of error apparent on the face of the record, on account of mistake, on discovery of new and important matter or evidence, after the exercise of due diligence or for any other sufficient reason. The Applicants have advanced and relied on two grounds as a basis for its application to wit, an error apparent on the face of the record and any other sufficient reason. 6. On the first ground, the Applicants assert that whereas the Court made a definitive finding that the continued detention of the Applicants’ goods was unconstitutional, the resultant order directing that the goods be held in safe custody by the 1st Respondent was a contradiction in itself and was also in conflict with the orders issued in HCCCOMM E604 of 2023. In the Applicant’s view, this constitutes an error apparent on the face of the record which does not require elaborate argument to establish. 7. In its Judgment, the Court held as follows: - ***“46. Section 28(1) of the Act is couched in mandatory terms, requiring that goods seized thereunder be returned within three months from the date of seizure, unless within that period a person is charged with an offence under the Act in relation to those goods. The exception is narrow and strictly confined to circumstances where criminal proceedings are instituted within the prescribed timeframe.*** ***47. In the present case, the Petitioners’ goods were seized on 11th December 2023 and have remained in the custody of the 1st Respondent for a period exceeding two years. It is not disputed that no criminal charges have been preferred against the Petitioners in relation to the seized goods. On the face of it, therefore, the continued detention appears inconsistent with the statutory framework.*** ***48. However, the material placed before this Court reveals that the dispute over the seized goods is inextricably linked to an ongoing dispute regarding trademark ownership. In particular, the decision of the Registrar of Trademarks expunging the 1st Petitioner’s trademark is the subject of an appeal before the High Court in HCCOMMA No. E288 of 2024, Nairobi Beauty World vs Sime Darby Oils Professionals SDN. BHD. Further, in HCCOMM No. E604 of 2023, Sime Darby Oils Professionals SDN. BHD vs Nairobi Beauty World, there exist subsisting injunctive orders touching on the same subject matter.*** ***49. These proceedings demonstrate that the proprietary interests in the good, and the legitimacy of their branding, are matters actively pending before courts of competent jurisdiction. The determination of those issues will directly inform the legality or otherwise of the seizure and continued detention of the goods.*** ***50. In those circumstances, this Court is constrained from making definitive pronouncements on the alleged infringement of the Petitioners’ right to property, as doing so would risk prejudging issues that are squarely before other courts and may result in conflicting decisions.*** ***Accordingly, while the delay in concluding investigations or preferring charges is not satisfactorily explained, the continued detention of the goods cannot be viewed in isolation from the subsisting commercial disputes over the trademark. The detention, though prolonged, is intertwined with and contingent upon the outcome of those proceedings…*** ***74. I have also found above that the 1st Respondent has not demonstrated any justification for such continued and arbitrary detention of the goods. However, I have found that I do not have jurisdiction to determine whether the seized goods are counterfeit or not. Furthermore, there is a pending dispute before the court of competent jurisdiction on whether the Petitioner indeed infringed on the trademark. The question of whether there is indeed an infringement of their property rights can therefore not be conclusively determined by this court. Additionally, I am unable to make definitive orders of mandamus for the release of the goods pending the conclusive determination of the civil disputes before the civil Courts. In the meantime, it is only fair that the seized goods are safely stored by the 1st Respondent as required under section 27 of the Anti-Counterfeit Act.”*** 1. The above findings were clear and unambiguous having been arrived at upon a rational explication of the facts of the case and the material presented by both parties. I do not therefore find any contradiction in the Court’s findings and the attendant final orders which were issued upon considering the provisions of section 27 of the Anti-Counterfeit Act. 2. In my view, the assertion by the Applicants that the above findings and orders are contradictory does not constitute an error apparent on the face of the record. For the Court to review and/or alter its initial position and/or finding, it would require an analytical shift of the evidence tendered and the conclusions made by the Court which falls outside the scope of review. 3. The Applicant further argue that the Court’s findings above are in conflict with the orders issued by my learned brother Justice Mulwa in HCCOMM **NO. E604 of 2023** on 24th April 2025 that, “***pending the hearing and determination of the substantive infringement proceedings, a temporary order of injunction be and is hereby issued directing the Defendant (Nairobi Beauty World Limited), to seal and keep seizure of all offending mechandize bearing the trade mark “CBC BRAND” (WORDS AND DEVICES) or any other mark which is phonetically and visually similar to the Plaintiff’s registered trade mark “CBC BRAND” (WORDS AND DEVICES) or any other mark confusingly similar thereto, currently in their possession, custody or control.”*** 4. The Applicants assert that the above orders permitted them to retain custody of the goods and did not authorize their continued detention by the 1st Respondent. 5. I have perused the referenced ruling by the High Court where the 2nd Respondent herein is the Plaintiff while the 1st Petitioner herein is the Defendant. The 1st Respondent (Anti-Counterfeit Authority) herein is not a party in those proceedings. 6. The record herein shows that the seizure of the subject goods by the 1st Respondent occurred on 18th December 2023. It is such seizure that gave rise to the filing of the Petition dated 23rd September 2025, the subject of the Court’s Judgment. One of the reliefs sought by the Petitioners was for the release of the goods held by the 1st Respondent. To my mind, the subject goods have all along been in the custody of the 1st Respondent since the time of seizure. I have not been shown any material or evidence suggesting that the Commercial Court (HCCOMM **NO. E604 of 2023)** ever made an order for the release of those goods held by the 1st Respondent. 7. The Order in HCCOMM **NO. E604 of 2023** was quite clear that the 1st Petitioner was to seal and keep seizure of all offending goods within their possession, custody and control. If indeed the 1st Petitioner had control of the goods as they now intimate, there would have been no basis for seeking an order for their release in these proceedings. 8. In its Judgment, the Court indeed found that the 1st Respondent failed to comply with section 28(1) of the Act and permanently barred the 1st and 4th Respondents from ever mounting a criminal prosecution against the Petitioners on the basis of the complaint Reference No. ACA/HQ/ENF/IPRC/69/2023. 9. On the question of whether the goods should be released to the 1st Petitioner, the Court gave its reasons in the Judgment as to why it did not consider it appropriate to make such orders. The invitation by the Petitioners to revisit that issue is an attempt to reopen the case afresh which would be tantamount to this Court sitting on its own appeal, an invitation that I must resist. 10. Accordingly, I find that the orders of this Court do not in any way contradict the injunctive orders issued by Justice Mulwa and which orders were duly acknowledged in this Court’s Judgment. To order the release of the subject goods would render the proceedings before the Commercial Division of the High Court perfunctory. 11. On the ground of sufficient reasons, the Applicants pray for an order barring the accrual of any storage charges and further direct that any such charges that have accrued be borne by the 1st Respondent. 12. It is a foundational principle in our adversarial system of dispute adjudication that parties are bound by their pleadings. See Supreme Court of Kenya in **CMM (suing as the next friend of and on behalf of CWM) & 6 others vs Standard Group & 4 others (2023) KESC 68 (KLR)**. 13. This particular order was not sought in the initial Petition and cannot be introduced at this stage by way of review. 14. Lastly, the Applicants have sought for an order of setting aside the finding of the Court that the purported complainant had locus standi to lodge a complaint before the 1st Respondent. Under ground (f) of the grounds on which the application is anchored, the Applicant assert that, *“the impugned Judgment failed to consider the mandatory provisions of….”* 15. From the framing of this particular ground, it is crystal clear that the Applicants are dissatisfied with this Court’s finding on this particular question and their grievance can only and adequately be addressed through an appeal and not through a review application. Such a ground is an invitation upon the Court to sit on its appeal. 16. For the foregoing reasons, I find that the application dated 27th April 2026 lacks merit and is dismissed. Each party shall bear its own costs. Orders accordingly. **Ruling dated and delivered virtually this 25th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE**