[2020] KECA 919 (KLR)
The Court found that the applicant's motion raised contentious issues suitable for appellate determination and that the applicant had demonstrated urgency by promptly filing the notice of appeal and the motion for interim relief. The Court exercised its discretion to certify the motion as urgent, thereby enabling...
Source-derived case information.
- Citation
- [2020] KECA 919 (KLR)
- Parties
- Applicant: Squishy Drinks Limited; Respondent: Kevian Kenya Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 386 of 2019
- Procedural Posture
- Civil Application / Certification of Urgency for Interlocutory Injunction Pending Appeal
- Outcome
- Applicant's motion certified as urgent; hearing to be scheduled.
- Judges
- GG Okwengu
- Legal Topics
- Trademark Infringement, Interlocutory Injunctions, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Squishy Drinks Limited
Applicant
Kevian Kenya Limited
Respondent
Procedural Posture
Civil Application / Certification of Urgency for Interlocutory Injunction Pending Appeal
Legal Issues
- 1 Whether the applicant's motion for interim orders pending appeal should be certified as urgent.
- 2 Whether the applicant has demonstrated sufficient urgency and contentious issues to warrant expedited hearing.
Ratio Decidendi
The Court found that the applicant's motion raised contentious issues suitable for appellate determination and that the applicant had demonstrated urgency by promptly filing the notice of appeal and the motion for interim relief. The Court exercised its discretion to certify the motion as urgent, thereby enabling the applicant to have its application for interim orders heard expeditiously. The decision was based on the need to ensure that parties with arguable and urgent matters are not denied an opportunity to be heard, especially where intellectual property rights and potential commercial harm are at stake.
Court Disposition
Applicant's motion certified as urgent; hearing to be scheduled.
Orders
- The applicant's motion dated 11th December, 2019 is certified as urgent.
- A date shall be fixed for the hearing of the motion and parties served with hearing notices.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OKWENGU JA (IN CHAMBERS)
CIVIL APPLICATION NO. 386 OF 2019 (UR 335/2019)
BETWEEN
SQUISHY DRINKS LIMITED……………………..……APPLICANT
AND
KEVIAN KENYA LIMITED …………………………RESPONDENT
(An application arising from the Ruling of the High Court of Kenya at Milimani (Mary Kasango, J) delivered on 4thDecember 2019
in
HCCC No. 114 of 2019)
******************
RULING
1. On 4th December, 2019, the High Court at Nairobi (Kasango, J) delivered a ruling in which it vacated orders of injunction that had been granted to the applicant. The High Court instead issued an order of injunction directed at the applicant restraining it from interfering with the respondent’s manufacturing, packaging or distribution of products under the trademark “squishy”.
2. The applicant who claims that the respondent is infringing on its trademark, is aggrieved by the orders made in the High Court. On the 10th December, 2019 the applicant filed a notice of appeal and on the 11th December, 2019, the applicant filed a notice of motion before this Court under Rule 5(2)(b) of the Court Rules, in which it seeks inter alia, interim orders to refrain the respondent from infringing on its trademark, pending the hearing of its intended appeal.
3. On 18th December, 2019 the applicant’s motion came before me for certification, but I declined to certify the motion as urgent. The parties appeared before me on 17th January, 2020 for inter parte hearing under Rule 47 of the Court Rules on the issue of certification.
4. Upon hearing the parties’ advocates, it is evident that the appeal involves very contentious issues and it is appropriate that the applicant be given an opportunity to be heard. Moreover, the applicant appears to have demonstrated urgency by moving to this Court expeditiously.
5. In the circumstances, I certify the applicant’s motion dated 11th December, 2019 as urgent, and direct that a date be fixed for the hearing of the motion and the parties served with hearing notices.
Dated and delivered at Nairobi this 24thday of January 2020.
HANNAH OKWENGU
.......................................
JUDGE OF APPEAL
I certify that this is a
true copy of the original
DEPUTY REGISTRAR