[2017] KEHC 10014 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND TAX DIVISION

CIVIL SUIT NO. 58 OF 1999

SANITAM SERVICES (E.A) LTD.........................PLAINTIFF

VERSUS –

RENTOKIL (K) LTD...................................1ST DEFENDANT

KENTAINERS (K) LTD.............................2ND DEFENDANT

RULING NO.2

1. The application before me is for the Review and Reversal of a part of the Orders made on 18th May 2017.

2. In specific terms, the applicant asked the court to review paragraphs 27 and 28 of the Ruling.

3. It is the applicant’s position that the court had explained its reason for the orders in issue, as being the need to obtain samples of the bins which the defendant was using, so that thereafter the court could determine whether or not the defendant was in contempt of court orders.

4. In the circumstances, the defendant holds the view that the court had not yet made a determination on the question as to whether or not the defendant was in contempt of court. Therefore, if the plaintiff were allowed to remove bins from the premises of the defendant and also from the premises of the defendant’s clients, the defendant deems that to be a condemnation before the court had made its determination on the issue of contempt.

5. In the opinion of the defendant, it was unnecessary and excessive to authorize the plaintiff to seize the entire stock of the 1st defendant, when the purpose of sampling was simply to enable the court to make a determination on the question of contempt.

6. The defendant is also apprehensive that when the plaintiff executes the court orders, there was a likelihood of bias and malice, when it is taken into account that the plaintiff was a competitor in business.

7. In answer to the application the plaintiff submitted that the same constituted an attack on the Court’s Ruling, on merits.

8. The plaintiff drew the attention of the court to the following words of the Court of Appeal in NATIONAL BANK of KENYA LIMITED Vs. NDUNGU NJAU, CIVIL APPEAL No. 211 of 1996;

“In the instant case the matters in dispute had been fully canvassed before the learned Judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise, we agree that the learned Judge would sitting in appeal on his own judgement. An issue which has been hotly contested, as in this case, cannot be reviewed by the same court which had adjudicated upon it?.

9. The plaintiff said that in this case, the court had already made a conscious decision on the matter which was before it.

10. By the said conscious decision, the court authorized the plaintiff to visit the premises of the respondents and of the respondents’ clients, from where they could pick the bins deemed to contravene the plaintiff’s patent.

11. I am in agreement with the plaintiff, concerning the intent and purpose of the orders made.

12. The plaintiff was given authority to enter into the premises of the respondents and of the respondents’ clients.

13. Whilst at those premises, the plaintiff was authorized to remove bins which they deemed to contravene their patent.

14. In my understanding of the application now before me, there is a practical problem in the way the order was being executed.

15. The applicant considers the assessment of the plaintiff, on the issue about what constitutes a violation of its patent, to be driven with malice.

16. Upon further reflection, I find that the complaint lodged by the applicant is reasonable. I so find because, whilst the plaintiff believes that it was only removing bins which contravened its patent, the applicant was of a completely different opinion.

17. Indeed, I do recall that it is the difference in the opinions of the parties which led the court to first consider it necessary to have the bins allegedly contravening the patent, gathered together.

18. If the court was to thereafter evaluate the said bins, it would then be able to determine whether or not the applicant was in contempt.

19. In the event that there was no dispute concerning the bins which violate the patent, it would have been easily established if there had been an act of contempt of court.

20. The very fact that the court deemed it prudent to first have the allegedly offending bins gathered together, before the court could determine the application for contempt of court, means that the court had not yet held the applicant to be in contempt.

21. Therefore, when the plaintiff reasoned that;

“the action of the Respondent entering and obtaining bins in contravention of court orders, cannot be deemed to be a disruption of the Applicant’s business?,

Is not well founded. It is a reasoning which presupposes that the court had already made a determination regarding what constituted bins that contravened the plaintiff’s patent.

22. I also find that the plaintiff was right when it submitted that the court would not ordinarily come to the aid of a contemnor, if the said contemnor had not yet purged the contempt.

23. However, in this case, the court had not yet made a determination that the applicant was a contemnor.

24. The National Bank of Kenya has complained about the acts of the plaintiff, when the latter entered its premises, seeking the “offending bins?.

25. The court admits that it did not envisage the practical difficulties which would arise when the orders given were being given effect.

26. I now see that clients of the applicant could easily have their businesses interrupted, when the plaintiff was searching the clients’ premises, looking for the “offending bins?. That was totally un-expected, and I must admit that I did not anticipate it.

27. If the plaintiff continued to execute the orders in their current form, it is possible that persons who were not parties to this suit, could end up being seriously prejudiced, without having been accorded a hearing.

28. Not only would such Third Parties be prejudiced, but the applicant would also be prejudiced if the court were to ultimately conclude that the applicant had not committed contempt of court.

29. I find these factors to constitute sufficient reason to warrant a review of the orders made on 18th May 2017.

30. Accordingly, the plaintiff shall still have authority to enter into the premises of the 1st defendant, but it shall not cart away any bins from such premises. Instead, the plaintiff may take an inventory of bins considered to be violating the rights vested in the plaintiff, by virtue of its patent. The plaintiff will also be entitled to obtain photographic or such other evidence, which would thereafter be made available to the court.

31. Secondly, in lieu of the order for entry into the premises of the applicant’s clients, the court directs the applicant to provide the court and the plaintiff with an affidavit detailing the clients whom it has sold to, the bins which the plaintiff considers to be contravening its patent. The affidavit shall specify the quantity of such bins and the dates when they were sold to each such client.

32. It is to be recalled that, at the moment, the exercise being conducted is intended to enable the court ultimately make a decision on whether or not the applicant was in contempt of court.

33. For the avoidance of any doubt, it is the plaintiff who, for now, will tell the applicant about the bins it considers to be contravening the patent in issue. At this stage, the applicant shall not be permitted to challenge the plaintiff’s said assessment.

34. Any challenge which the applicant may wish to mount, will only come up after the evidence has been put together for the court’s assessment.

35. The applicant has 2 weeks from today to provide the plaintiff and the court with the affidavit.

36. During the period of the said 2 weeks, the bins which were already removed by the plaintiff, may remain in the custody of the plaintiff.

37. However, the plaintiff may choose to release the said bins to the applicant, after taking photos or videos of the same, together with an appropriate inventory.

38. This latter part of the order takes into account the possibility that the court may ultimately conclude that the applicant had not committed any contempt of court. In the event of such a finding, it is possible that the plaintiff might be faced with claims for compensation, for any losses sustained by the applicant, during the duration when the plaintiff continued to hold onto the bins in issue.

39. Immediately after the lapse of two (2) weeks from now, the court will grant further Directions, in order to facilitate an expeditious conclusion to the plaintiff’s application dated 23rd February 2016.

40. Meanwhile, the costs of the application dated 6th June 2017 shall be in the cause, in the application dated 23rd February 2016. In effect, if the application dated 23rd February 2016 is successful, the costs of the application dated 6th June 2017 shall also be awarded to the plaintiff. The converse will also be true; so that if the application dated 23rd February is not successful, the 1st defendant will be awarded the costs of the application dated 6th June 2017.

DATED, SIGNED and DELIVERED at NAIROBI this3rd dayof October2017.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

R.M. Mutiso for the Plaintiff

Obel for Katiku for the 1st Defendant

No appearance for the 2nd Defendant

Collins Odhiambo – Court clerk.