Pulci v Capriano Holdings Ltd & another (Commercial Case E685 of 2025) [2026] KEHC 12257 (KLR) (Commercial and Tax) (22 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **COMM CASE NO. E685 OF 2025** **BETWEEN** **EDMUND LOUIS CHESNEAU PULCI………………………………...…..PLAINTIFF** **AND** **CAPRIANO HOLDINGS LIMITED........………………………….…1ST DEFENDANT** **ANN NYAMBURA WANGUNYU.……………………..…………2ND DEFENDANT** **RULING** **Introduction and Background** 1. By the Notice of Motion dated 15th October 2025, the Plaintiff seeks an interlocutory injunction to restrain the Defendants, their agents and employees from trading in or selling *LULEA* products or receiving payments from the same and from interfering with the *LULEA* Trademark until the suit is heard and determined. The application is supported by grounds on its face and the affidavits of the Plaintiff sworn on 15th October 2025 and 4th March 2026. It is opposed by the Defendants through the replying affidavit of the 2nd Defendant sworn on 2nd December 2025. The application was canvassed by way of written submissions which are on record which together with the pleadings I have considered and I will be making relevant references to them in my analysis and determination below. **Analysis and Determination** 1. I have carefully considered the pleadings and the rival submissions filed by the parties and note that the main issue that arises for determination is whether the court ought to grant the injunctive orders sought by the Plaintiff. As the Plaintiff submits, for him to obtain an injunction, he must demonstrate that he has a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted and if the court is in doubt show that the balance of convenience is in his favour (see **Giella v Cassman Brown & Co., Ltd. [1973] E.A. 358)**. 2. As the Plaintiff further submits, in **Nguruman Limited v Jan Bonde Nielsen& 2 others [2013] KECA 347 (KLR),** the Court of Appeal reiterated these conditions and further clarified that they are to be applied as separate, distinct and logical hurdles which an applicant is expected to surmount sequentially. This means that if the applicant does not establish a *prima facie* case then irreparable injury and balance of convenience do not require consideration. On the other hand, if a prima facie case is established, then the court will consider the other conditions. 3. As to what constitutes a prima facie case, the Plaintiff has also rightly submitted that the Court of Appeal in **Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR)** explained that it is, *“….a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.”* The Plaintiff’s case is that the *LULEA* trademark belongs exclusively to him and that the 1st Defendant fraudulently misrepresented itself as *LULEA* to enter into a merchandising agreement with *Majid Al Futtaim Hypermarkets* commonly known as *Carrefour* to sell goods. That the Defendants are using the Plaintiff's trademark to sell products and receive payments without his consent, which is unlawful and constitutes fraud and that despite the Plaintiff's complaints and a suspension letter from the Defendants, the unauthorized sale of *LULEA* products is continuing. The Plaintiff deems the Defendants' actions as fraudulent, illegal and they constitute a misrepresentation and that it is in the interest of justice to stop their unlawful use of the trademark. 1. In response, the Defendants depone that the Plaintiff entered into a renewable long-term licensing agreement with the 1st Defendant on 12th March 2025 and that this agreement explicitly permitted the 1st Defendant to handle all sales, marketing, and distribution of *LULEA* products and to collect all payments from those sales. That this agreement has not been cancelled and remains enforceable and that the Plaintiff was fully aware of and participated in the discussions and signing of the contract with *Carrefour.* The 1st Defendant avers that it was specifically incorporated on 12th March 2025 at the Plaintiff's behest because his previous company had apparently been blacklisted by the Kenya Revenue Authority and could no longer trade. That the Plaintiff is a signatory to the 1st Defendant's bank accounts, has access to them, and has never been denied access to the payments from sales. 2. The Defendants claims that the use of the name *"Capriano Holdings Ltd t/a LULEA"* was expressly permitted by the Plaintiff's license and the claim that the Defendants are trading illegally or fraudulently is therefore false. They contend that the suspension letter referred to by the Plaintiff was not a claim of ownership over the trademark, instead, it was a protective measure taken by the 2nd Defendant to shield the company from financial and regulatory risks. That these risks arose because the Plaintiff had not regularized his immigration status in Kenya, which created legal exposure for the company. The Defendants state that the *ex parte* interim orders granted to the Plaintiff are causing the Defendants serious financial and legal harm as they are in breach of their contracts with retailers which run until 31st December 2025 and are facing tax penalties, VAT arrears and potential KRA enforcement actions. 3. The 2nd Defendant depones she should not be a party to the suit, as she is an individual and has not personally entered into any contracts or made any sales as the business was conducted through the 1st Defendant. As such, the Defendants urge the court to dismiss the Plaintiff's application with costs and to lift the interim orders that are currently in place. 4. In response to the averments above, the Plaintiff depones that the Defendants were never granted a license but the 2nd Defendant was offered a role as a "Sales and Marketing Agent" to help grow the brand and that the proposed compensation was a 6% commission on new sales, not ownership of the brand or its proceeds. He emphasizes that no formal licensing agreement was ever concluded and the Defendants have not provided any such agreement to the court and he points out that the contract with *Carrefour* was signed on 2nd January 2025, but the 1st Defendant was not incorporated until 12th March 2025. 5. The Plaintiff states that a company that did not legally exist could not have signed a contract thus asserting that the Defendants are misrepresenting the facts. He contends that contrary to the Defendants' claim, he does not have access to the bank accounts where the *LULEA* sales proceeds are deposited and this is the very reason he filed this suit. He dismisses the licensing agreement or undertaking mentioned by the Defendants, stating it was merely a proposal and the intended commercial relationship was never actualized and he reiterates that no license was ever formalized. The Plaintiff maintains that the ongoing unlawful use of his brand is causing him irreparable loss that cannot be compensated by damages and states that the balance of convenience favors granting the injunction to prevent the Defendants from continuing to misrepresent their authority over his trademark. 1. I have gone through the aforementioned arguments in the pleadings and submissions. It is not in dispute that the Plaintiff is the registered proprietor of the *LULEA* trademark in Kenya under Trademark No. 138992, effective 14th April 2025 and in Ireland. The effect of a registered trademark is set out in **section 7(1)** of the ***Trademarks Act (Chapter 506 of the Laws of Kenya)*** as follows: ***7. Right given by registration in Part A, and infringement thereof*** *(1) Subject to the provisions of this section, and of sections 10 and 11, the registration (whether before or after 1st January, 1957) of a person in Part A of the register as the proprietor of a trade mark if valid gives to that person the exclusive right to the use of the trade mark in relation to those goods or in connection with the provision of any services and without prejudice to the generality of the foregoing that right is infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of permitted use, uses a mark identical with or so nearly resembling it as to be likely to deceive or cause confusion in the course of trade or in connection with the provision of any services in respect of which it is registered, and in such manner as to render the use of the mark likely to—* *(a) be taken either as being used as a trade mark;* *(b) be taken in a case in which the use is upon the goods or in physical relation thereto or in an advertising circular or other advertisement issued to the public, as importing a reference to some person having the right either as proprietor or as licensee to use the trade mark or goods with which such a person is connected in the course of trade;* *(c) be taken in a case where the use is use at or near the place where the services are available for acceptance or performed or in an advertising circular or other advertisement issued to the public or any part thereof, as importing a reference to some person having the right either as proprietor or as licensee to use the trade mark or to services with the provision of which such a person as aforesaid is connected in the course of business;* *(d) cause injury or prejudice to the proprietor or licensee of the trade mark.* 1. Thus, the aforementioned provision states that registration by a person as the proprietor of a trademark if valid gives to that person the “*exclusive right to the use the trademark”.* If any person, who not being the proprietor or registered user of the trademark, uses a mark which is identical to or so nearly similar as to be likely to deceive or cause confusion in the minds of consumers in the course of trade or in connection with the goods or services in question is said to have infringed that trademark. In making this determination, I am also cognizant of the fact that at this stage, the court can only make a prima facie finding whose conclusiveness will be determined at trial. The court cannot conduct a mini trial and make a conclusive finding based on the affidavit evidence before it. It is at the trial and main hearing stage that the parties can impeach the veracity and credibility of the documents on record (see **Webtribe Limited T/A Jambopay v** **Jambo Express Limited [2014] KEHC 1724 (KLR)]**. 1. At this point, the Plaintiff holds a valid and registered trademark whose ownership is not disputed. The Defendants' defense relies on a Licensing Agreement/Undertaking and their presence at meetings, however, the Plaintiff's further deposition raises serious questions about this defense because he points out that the 1st Defendant was incorporated on 12th March 2025, yet the *Carrefour* contract was allegedly signed on 2nd January 2025 begging the question of how a non-existent company could sign a contract. The Plaintiff has also stated that this agreement/undertaking is an unsigned proposal, not a formal license. These are disputed facts that go to the heart of the case and the court cannot resolve them at this interlocutory stage without conducting a mini-trial. However, for the purpose of a *prima facie* case, the Plaintiff need not prove his case definitively. He only needs to show there is a *bona fide* question to raise as to the existence of his right and that it has been infringed. The Plaintiff has done this by demonstrating his registered ownership and producing evidence of the Carrefour agreement listing the 1st Defendant as the trader that appears to show the Defendants are trading under his mark. 2. The Court's role at this stage is not to decide who is telling the truth but to see if the Plaintiff has a right that has apparently been infringed and requires an explanation. The explanation offered by the Defendants is plausible but raises its own questions, which means the Plaintiff's case is not frivolous.Therefore, I find that the Plaintiff has met the first hurdle as he has established a *prima facie* case that is arguable and not frivolous. The Court will then proceed to consider the other two conditions of irreparable injury and the balance of convenience. 3. On irreparable harm and injury, I am in agreement with the Plaintiff’s submissions that trademark infringement, by its nature, involves harm that is difficult to quantify. The loss of consumer trust, brand distinctiveness and market position is not easily remedied by damages. The Defendants' actions of selling goods under the *LULEA* mark without a formal license could confuse consumers and damage the brand's reputation. Even if the Defendants' claim of authority is eventually proven true, the Plaintiff's concern about loss of control over his brand is legitimate and substantial. 4. I also find that the balance of convenience appears to favor the Plaintiff, for reasons that the trademark is the principle asset in dispute and if the Defendants are allowed to continue using it, the Plaintiff's rights could be irreparably diminished before the trial. While the Defendants claim they are suffering financial harm of tax penalties and VAT arrears, these appear to be consequences of their own decision to enter into contracts without a formalized licensing agreement. They cannot rely on their own risky conduct to argue against an injunction. As the Plaintiff correctly submits, the Defendants' claim is at best one of agency and agent cannot claim proprietary rights over a principal's trademark. The Defendants' inconvenience of loss of commission is quantifiable and compensable by damages, unlike the Plaintiff's harm. Indeed, there is also a public interest in protecting registered intellectual property rights and preventing consumer confusion. **Conclusion and Disposition** 1. For these reasons, I allow the Plaintiff’s application dated 15th October 2025 by issuing an injunction restraining the Defendants, whether by itself, its agents, assigns, servants and/or employees, from trading/selling or continuing to trade/sell as products of LULEA Trademark, or receive payments/monies from the sale of LULEA products or in any other way, howsoever, from interfering with the LULEA Trademark pending the hearing and determination of this suit. Costs will be in the cause. **DATED SIGNED and DELIVERED virtually at NAIROBI this 22nd DAY of JULY 2026** **............................................................................** **J.W.W. MONGARE** **JUDGE** **IN THE PRESENCE OF:-** 1. Ms. Ndwiga for the Plaintiff/Applicant. 2. N/A for the Defendant/Respondent. 3. Amos - Court Assistant