[2006] KEHC 596 (KLR)
The court found that the appellant failed to demonstrate a prima facie case as required for the grant of an interlocutory injunction. The evidence presented, consisting mainly of quotations to customers, did not establish that the respondent was deceiving customers or passing off his business as that of the...
Source-derived case information.
- Citation
- [2006] KEHC 596 (KLR)
- Parties
- Appellant: Tobias Odukat t/a New Jonnesco Enterprises; Respondent: Paul Juma Oke t/a Jonnesco Enterprises
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 720 of 2006
- Procedural Posture
- Civil Appeal / Interlocutory Application for Injunction Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- ARM Visram
- Legal Topics
- Interlocutory Injunctions, Passing Off, Business Name Disputes, Prima Facie Case, Irreparable Injury, Balance of Convenience
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tobias Odukat t/a New Jonnesco Enterprises
Appellant
Paul Juma Oke t/a Jonnesco Enterprises
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the appellant has established a prima facie case to warrant an interlocutory injunction restraining the respondent from trading under a similar business name.
- 2 Whether the appellant would suffer irreparable injury not compensable by damages if the injunction is not granted.
- 3 Whether the balance of convenience favours granting the interlocutory injunction.
Ratio Decidendi
The court found that the appellant failed to demonstrate a prima facie case as required for the grant of an interlocutory injunction. The evidence presented, consisting mainly of quotations to customers, did not establish that the respondent was deceiving customers or passing off his business as that of the appellant. Furthermore, any loss suffered by the appellant could be adequately compensated by damages if he ultimately succeeded. The court also noted that granting the orders sought would be drastic, potentially affecting third parties (the customers) without hearing them. Therefore, the application for an interlocutory injunction was dismissed as the threshold for such relief was not...
Court Disposition
application dismissed with costs
Orders
- The application for interlocutory injunction is dismissed.
- The appellant shall pay the costs of this application.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 720 of 2006
TOBIAS ODUKAT/A NEW JONNESCO ENTERPRISES …...... APPELLANT
VERSUS
PAUL JUMA OKELOT/A JONNESCO ENTERPRISES …… RESPONDENT
RULING
In this application, brought under Order 41 Rule 4 (6) of the Civil Procedure Rules, the Applicant seeks orders to restrain the Respondent from trading in the name and style of “Jonnesco Services”, which he says is so identical or similar to his own firm, that it creates confusion in the minds of his customers. He also wants the Respondent stopped from unlawfully interfering in contracts with his customers, and more specifically from soliciting business or trading with the Applicant’s customers namely “MSF Belgium, MSF Switzerland, MSF Spain and CCF” until the hearing and determination of this appeal.
In his supporting affidavit he says the respondent is his ex-employee, and who has now set up a rival firm, and is taking business away from him. He deals in office supplies stationery, printing and photocopying services. The respondent deals in similar products.
What the Applicant is seeking are orders that would effectively stop the business of the Respondent. These orders are fairly drastic to grant at an interlocutory stage except in clear circumstances that the Respondent was actually deceiving the Applicant’s customers into believing that they were dealing with the Applicant’s firm. Clearly, there is no such evidence before this Court, and that is presumably why his application was denied in the lower Court.
The law governing the grant of injunctions is now fairly well settled with the decision in Giella vs Cassman Brown (1973) E A 358. The Applicant must show a prima facie case with a probability of success, and where the Court is in doubt it should decide the application on a balance of convenience. An interlocutory injunction will not normally be granted unless the Applicant is likely to suffer irreparable injury that would not adequately be compensated by an award of damages.
Now, based on the evidence presented to the Court, comprising mainly of quotations given to customers by the Applicant, I cannot say that the Applicant has demonstrated a prima facie case. In any event, if the Applicant is proved right eventually, he can be compensated in damages. I believe this is a case that is best determined by oral evidence, and it would not be appropriate to make interlocutory Orders. Such orders would be so drastic as to affect the Applicant’s named customers – effectively barring them from dealing with the Respondent if they so chose to – without even hearing them. Cleary that cannot be done.
Accordingly, I dismiss this application with costs.
Dated and delivered at Nairobi this 6th day of December, 2006.
ALNASHIR VISRAM
JUDGE