Kenya: Ingenious Measures and a Set-back
The Government of Kenya, mindful of its obligations under the TRIPS Agreement, published the Counterfeit Goods Bill back in 2005. The Bill would provide for direct, effective action against counterfeiters by a specialised agency. However, its progress towards the statute book has been impeded by prolonged recesses of Parliament and preparations for general elections, to be held later in 2007.
Whilst awaiting the new law, an alliance of Government agencies led by the Kenya Revenue Authority (“KRA”) created ad-hoc an Anti-Counterfeiting and Substandard Products Secretariat. Officers from the Secretariat’s constituent departments, purporting to exercise powers of entry and inspection under the Trade Descriptions Act, would visit places suspected to house counterfeit goods. It was considered that goods which infringed a registered trade mark would also offend against the Trade Descriptions Act and therefore, that such “raids” could be legally justified and could result in seizure of counterfeit goods and criminal proceedings against the persons implicated.
In High Court Miscellaneous Application No. 1206 of 2004 Doshi Iron Mongers Ltd. and Another v Weights and Measures Department and 4 others  eKLR Doshi, which had been subjected to several Secretariat raids, filed proceedings under the Constitution against the agencies involved. Doshi claimed 26 remedies including:
- declarations that the raids were unconstitutional and the respondents had no intellectual property rights in the seized goods;
- injunctions restraining interference with Doshi’s conduct of business;
- special, general and exemplary damages;
- and costs.
In a judgment of 122 pages the trial Judge decided that the actions taken by the Secretariat’s teams against Doshi were outside the combined powers of the participants. The Court granted (amongst others) the above-mentioned declarations but refused the injunctions. General damages were awarded against the KRA totalling Kenya Shillings 3,500,000 (about £26,000) but special and exemplary damages were refused. An award of costs was made against the KRA.
The KRA is appealing and has applied for a stay of execution of the orders of damages and costs. Meanwhile the activities of the Secretariat continue.