[2010] KEHC 775 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL COURTS AND TAX DIVISION

CIVIL CASE NO. 75 OF 2010

RONALD ANGWENYI ORINA.............................................................................................PLAINTIFF

VERSUS

BIDCO OIL REFINERIES LTD..........................................................................................DEFENDANT

R U L I N G

1. The Plaintiff/Applicant instituted this suit against the Defendant/Respondent seeking for an order declaring that the formula for manufacturing a product known as Mariandazi which the Defendant supplies to customers was supplied by the Plaintiff. The Plaintiff also sought for a restraining order against the Defendants from manufacturing, selling or dealing with the product known as Mariandazi. Simultaneously with the filing of suit, the Applicant filed a Chamber Summons dated 11th February 2010 under the provisions of Order XXXI in which he is seeking for an order of injunction to restrain the defendant from doing the following:

“a) Making any use whatsoever of any confidential information of whatsoever kind the property of the plaintiff/applicant in any formula/proposal for manufacturing baking powder known as mariandazi supplied by the Plaintiff.

b) Offering for sale, selling or supplying the baking powder known as mariandazi manufactured with the assistance of the Plaintiff’s confidential information.”

2. This application is premised on the grounds that, between June 2003 and early December 2003, the Plaintiff was employed by the Defendant. In the course of employment as a graduate trainee, he disclosed to the Defendant a formula for manufacturing high quality baking powder. That formula was invented by the Plaintiff while he was a student of Food Science and Technology at Nairobi University. He annexed a copy of his research paper which he shared with the Defendant for purposes of confirming the commercialization of his invention of a product at an agreed remuneration. The Defendant confirmed the formula viable as a commercial product but refused to discuss profit sharing to compensate the Plaintiff for his invention.

3. Further in breach of confidential arrangement on sharing the information belonging to the Plaintiff the Defendant set up a technical team to devise machinery for manufacturing baking powder using the Plaintiff’s formula and excluded the Plaintiff from the sessions. The Defendant has now been manufacturing the Plaintiff’s products using his formulation which is being marketed within the Comesa Region and it is also being used as a promotion tool for the defendant’s other products.

4. The Plaintiff is claiming that the Defendant has wrongfully deprived him of his innovation skills and invention and, unless stopped by an order of injunction the Plaintiff will suffer irreparable loss which cannot be compensated for in damages. The Plaintiff’s application is also supported by his affidavit sworn on 11th February 2010. He has annexed the letter of employment with the Defendant. He also annexed a copy of his research paper submitted to the University of Nairobi in partial fulfillment of the requirement for the award of Degree of Bachelor of Science in Food Science and Technology in April, 2003. He has explained how the formulation of Mariandazi Baking Powder that is being produced by the Plaintiff was taken from his research paper. Counsel for the Applicant also filed extensive written submissions. He relied on several decisions which mainly torch on the tort of breach of confidence.

5. This application was opposed by the Respondent; reliance was placed on the replying affidavit sworn by Shafiq Taibjee sworn on 20th April 2010. It is generally denied that the Plaintiff was responsible for the innovation of Mariandazi Baking Powder or that he contributed to its innovation. It is contended that the Plaintiff was employed as a graduate trainee within the Production-Refinery Department. It is also denied there was any meeting between the Plaintiff and the Board of Directors. There is no documentation to support this allegation. As regards the material for production of Mariandazi, the Defendant contends that the raw materials used, are the standard ingredients for all baking powders. Moreover, the Plaintiff has not registered any patent to safeguard his formulation or invention if any. Counsel for the Defendant also relied on written submission and cited several authorities to support the Defendant’s position. 6. The above is the summary of the background information and the rival submissions. The issue for determination is whether the applicant is entitled to an interim order of injunction based on the action of breach of confidential information. It is common ground that the Plaintiff is not the registered or in any way authenticated owner of the product known as Mariandazi baking powder. The element to consider is whether the Plaintiff has established a prima facie case with a probability of success to warrant the granting of an interim order of injunction. The Court of Appeal has explained what constitutes a prima facie case in the case of Mrao Limited v First American bank of Kenya Ltd & 2 others [2003] KLR 125 the court of appeal held that:

“A prima facie case in a civil application includes but is not confined to a “genuine and arguable case”. It is a case which, on the material presented to the court, a tribunal property directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

7. The principal complaint by the Plaintiff against the Defendant is based on breach of confidentiality and plagiarism of his original work. It is alleged that the Defendant used the Plaintiff’s innovation to develop a product without any compensation for the Plaintiff’s skill, knowledge and originality. The Plaintiff has relied on his research paper which he also submitted as part of his degree for Bachelor of Science in Food Science and Technology at the University of Nairobi. Apart from the fact that the Plaintiff was employed by the Defendant as a graduate trainee and, was later confirmed as a supervisor in the production refinery department, all the other allegations by the Plaintiff are denied. On the face of the Plaintiff’s case, without oral evidence it is not possible to tell whether the Defendant’s product known as Mariandazi is produced using the Plaintiff’s research paper and ideas contained therein.

8. It is only through oral evidence that the Plaintiff can be able to prove his case. At this point, the Plaintiff’s case does not meet the threshold of granting an interim order of injunction as set out in the case of Giella vs Casman Brown [1973] EA 358. The application is disallowed with costs to the Defendant.

RULING READ AND SIGNED ON THIS 22ND DAY OF OCTOBER, 2010

M. K. KOOME

JUDGE