[2005] KEHC 584 (KLR)
The High Court lacks jurisdiction to stay criminal proceedings in the Chief Magistrate's Court through an interlocutory application in a civil suit; such relief can only be sought via judicial review, with the Attorney General as a necessary party. Additionally, the High Court cannot grant a declaration regarding...
Source-derived case information.
- Citation
- [2005] KEHC 584 (KLR)
- Parties
- Plaintiff: Ukwala Supermarkets; Plaintiff: Anil Dhingra; Plaintiff: Joseph Mukoswe; Defendant: Paul Mburu Wainaina; Defendant: Kenya Industrial Property Institute
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 509 of 2005
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection to Interlocutory Application
- Outcome
- preliminary objection upheld; interlocutory prayers for stay and declaration denied
- Judges
- PJ Ransley
- Legal Topics
- Jurisdiction of High Court, Interlocutory Applications, Patent Infringement, Industrial Property Tribunal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ukwala Supermarkets
Plaintiff
Anil Dhingra
Plaintiff
Joseph Mukoswe
Plaintiff
Paul Mburu Wainaina
Defendant
Kenya Industrial Property Institute
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection to Interlocutory Application
Legal Issues
- 1 Whether the High Court has jurisdiction to stay criminal proceedings in the Chief Magistrate's Court through an interlocutory application.
- 2 Whether the High Court has jurisdiction to grant a declaration regarding patent infringement at the interlocutory stage.
Ratio Decidendi
The High Court lacks jurisdiction to stay criminal proceedings in the Chief Magistrate's Court through an interlocutory application in a civil suit; such relief can only be sought via judicial review, with the Attorney General as a necessary party. Additionally, the High Court cannot grant a declaration regarding patent infringement at the interlocutory stage, as such matters fall within the exclusive jurisdiction of the Industrial Property Tribunal under Section 103 of the Industrial Property Act. The issues raised in the application are not properly before the court at this stage, and the appropriate remedies must be pursued in the correct forum and procedure.
Court Disposition
preliminary objection upheld; interlocutory prayers for stay and declaration denied
Orders
- Preliminary objection allowed.
- Prayers 2 and 4 of the Chamber Summons are struck out for want of jurisdiction.
Full Case Text
Judgment text and source record
29 paragraphs
Jurisdiction 1. Whether the High Court has jurisdiction to stay criminal proceedings and grant a declaration in an interlocutory application 2. S 103 of Industrial Property Act No.3 of 2001. Jurisdiction of the tribunal
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 509 of 2005
UKWALA SUPERMARKETS ……………………..………..…..…....1ST PLAINTIFF
ANIL DHINGRA ……………………………………..…..…………….2ND PLAINTIFF
JOSEPH MUKOSWE……………………………...……………….…3RD PLAINTIFF
VERSUS
PAUL MBURU WAINAINA …………………..………….……….1ST DEFENDANT
KENYA INDUSTRIAL PROPERTY INSTITUTE……..……..…2ND DEFENDANT
RULING
On the hearing of the Chamber Summons of the 16. 9.2005 Mr. Kamau for the 2nd Defendant took Preliminary Objection to two of the orders sought namely those sought in prayer 2 and 4 as follows:-
(2)THAT this Honourable be pleased to stay proceedings in Chief Magistrate’s Criminal case No.1261 of 2005 pending the hearing and determination of this application and suit.
(4) A declaration that the television antennae and more particularly SONNET brand seized by the Defendants from the Plaintiffs do not infringe the Patent No.153 granted to the 1st Defendant and the plaintiff has a right to trade in these antennae, and an Order that the seized items be returned.
It was his submission that this court has no jurisdiction to grant either of these prayers.
Mr. Kamau submitted that under Section 8 of the Law Reform Act, jurisdiction to grant an order of prohibition, which is what the order sought in prayer 2 seeks, can only be granted in an application for Judicial Review.
Further that the Attorney General is a necessary party to any such order as, as the application stands at present it is aimed at no one and there is no one to oppose it.
On the question of the proposed declaration sought in prayer 4, under Section 103 of the Industrial Property Act No.3 of 2001 a Tribunal is set up to determine questions relating to the revocation or invalidation of a patent. This application has to be brought within 9 months from the date of publication of the grant of patent.
Mr. Gichachi supported the preliminary objection.
Mr. Omulele opposed the Preliminary objection.
I accept the submission of Mr. Kamau that this court has no jurisdiction to stay proceedings in the Chief Magistrate’s court in an application of this kind. If the applicant wishes to challenge those proceedings then the proper remedy is by way of Judicial Review to which the Attorney General will be the Respondent.
With regard to the prayer seeking a declaration, in my view this court has no jurisdiction at this stage to grant such a declaration. Whether or not the Applicant has infringed the patent of the 1st Defendant can only be determined after a full hearing of the matter on its merits.
This is not, however, raised as an issue in the Plaint but only obliquely in prayer (b) of the prayers in the Plaint. That is, however, not for decision now.
In the result I allow the preliminary objection. The applicant is however at liberty to pursue prayers 3 of his application. With regard to prayer 5 again this seeks a declaration, which cannot be granted on an interlocutory application.
Orders accordingly.
Dated and delivered at Nairobi this 9th day of November, 2005
P. J. RANSLEY
JUDGE