[2014] KEHC 4933 (KLR)
The court found that while the Defendant claimed to be an agent of a disclosed principal (ION Exchange Ltd), there was no documentary evidence on record, such as a distribution agreement, to conclusively establish this relationship. Furthermore, the Plaintiff contested the existence of the agency relationship. Since...
Source-derived case information.
- Citation
- [2014] KEHC 4933 (KLR)
- Parties
- Plaintiff: Wilson Muriithi Kariuki t/a Wiskam Agencies; Defendant: Surghipharm Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 542 of 2011
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- DO Ogembo
- Legal Topics
- Agency Relationships, Trademark Infringement, Proper Parties, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Muriithi Kariuki t/a Wiskam Agencies
Plaintiff
Surghipharm Limited
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the defendant, as an alleged agent of a disclosed principal, is the proper party to be sued in this trademark dispute.
- 2 Whether the existence of a principal-agent relationship is a contested fact that precludes determination at the preliminary objection stage.
Ratio Decidendi
The court found that while the Defendant claimed to be an agent of a disclosed principal (ION Exchange Ltd), there was no documentary evidence on record, such as a distribution agreement, to conclusively establish this relationship. Furthermore, the Plaintiff contested the existence of the agency relationship. Since the issue of agency was a disputed fact, it could not be resolved at the preliminary objection stage. Additionally, the Defendant had filed a counterclaim seeking substantive relief against the Plaintiff, further confirming its status as a proper party to the proceedings. Therefore, the Defendant's preliminary objection was dismissed, and the Defendant remained a party to the...
Court Disposition
preliminary objection dismissed
Orders
- The Defendant's preliminary objection is dismissed.
- The Defendant remains a party to the suit.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL &ADMIRALTY DIVISION
CIVIL CASE NO. 542 OF 2011
WILSON MURIITHI KARIUKI T/A WISKAM AGENCIES............PLAINTIFF
VERSUS
SURGHIPHARM LIMITED...........................................................DEFENDANT
R U L I N G
1. This matter was awaiting trial when Counsel for the Defendant raised a preliminary objection. On 10th March 2014, Counsel for the Defendant submitted that the preliminary issue was that the Defendant being an agent of a disclosed principal was not the right defendant. It was her submission that the suit should have been filed against ION Exchange Ltd and not Surgipham Ltd.
2. It was further her submission that the current defendant did not produce the Zero B water purifier but that they only distributed them as agents of the Principal. Counsel then referred to the List of authorities they had filed in support of their Preliminary Objection.
3. In opposition to the Preliminary objection, counsel for the Plaintiff submitted that the Defendant had filed a Counterclaim in the suit and was seeking to have the name of the Plaintiff as the registered proprietor of Zero B trademarks expunged from the register of trade marks. He noted that this was the main prayer in the Counterclaim. It was further submitted by Counsel that whether or not the Defendant was an agent of ION Exchange Ltd was a contested fact. It was Counsel’s submission that what the Plaintiff was seeking for was an injunction restraining the Defendant from using the trade mark.
ANALYSIS
4. This is basically an issue of parties to a suit. I have considered the authorities referred to by the Defendant for the proposition that where a principal is disclosed an agent cannot be sued. This is the general rule at common law which has various exceptions to it.
5. In its pleadings, the Defendant has disclosed that it was an agent of ION Exchange (India) Ltd who are the registered innovators and proprietors of the ZERO B trademark in India. On record, there is a Certificate of Registration of trademark issued by the Government of India as of 19th July 1988 to this effect. However, there is no document on the Court record for example a distribution agreement between the Defendant and ION Exchange Limited to show that there was indeed a principal-agent relationship between the two. Further Counsel for the Plaintiff submitted that the issue of whether or not the defendant was an agent was a contested fact. Therefore the court cannot at this stage conclude that the defendant was an agent of ION Exchange Ltd.
6. That notwithstanding, it is not in dispute that the defendant launched a product with a similar name to that of the Plaintiff some time in 2010 hence the reason for the Plaintiff instituting the current suit against the defendant. In my view, the Defendant is a proper party in this matter.
7. Therefore, the Preliminary objection herein as raised by the Defendant is dismissed.
8. I think it was not necessary to raise the Preliminary Objection since the same could still have been raised in the main hearing when it would be abundantly clear the legal position on all the issues.
DATED, READ AND DELIVERED AT NAIROBI THIS 2ND DAY OF MAY 2014
E. K. O. OGOLA
JUDGE
PRESENT:
Nyaosi holding brief for Ondebu for Plaintiff
M/s Kanini for Respondent
Teresia – Court Clerk