Mavazi Textiles and Branding Limited v Anti Counterfeit Urgency, Director of Public Prosecutions, Director of Criminal Investigations, Inspector General of Police, Attorney General & Bata Shoe Kenya [2021] KEHC 3448 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

PETITION NO. 2 OF 2019

MAVAZI TEXTILES AND BRANDING LIMITED.....................PETITIONER

VERSUS

ANTI COUNTERFEIT URGENCY......................................1ST RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS............2ND RESPONDENT

THE DIRECTOR OF CRIMINAL INVESTIGATIONS...3RD RESPONDENT

INSPECTOR GENERAL OF POLICE...............................4TH RESPONDENT

THE ATTORNEY GENERAL.............................................5TH RESPONDENT

BATA SHOE KENYA............................................................6TH RESPONDENT

DIRECTIONS

1. The petitioners petition dated 16th January 2019 sought several prayers including prohibiting the respondents from breaching several Articles of the constitution it has enumerated therein as well as arraigning the directors and or its employees in court through a criminal process. The petitioner has also prayed for damages as a result of the loss it has incurred pursuant to the actions by the respondents especially the 1st and the 6th respondents.

2. The 6th respondent on its part has also filed a cross petition seeking interlia to stop the petitioner from breaching among others Article 40 of the Constitution.

3. The petitioner did as well file an application seeking conservatory orders against the respondents from proceeding with a criminal charge against it as well as its servants and or agents. The court in the initial stage issued the said conservatory orders which are still subsisting.

4. When this matter came up for hearing the court directed that the same be determined by way of written submissions. Indeed, all the parties have complied. The court has also perused the same together with the attached legal authorities.

5. The court having gone through the same is of the considered opinion that this petition cannot be determined by way of affidavits alone. There are weighty issues which needs adduction of oral evidence. The issue between the petitioner and the 6th respondent may not come out clearly unless witnesses are put in the dock.

6. Is it true for instance that the 6th petitioner blackmailed the petitioner? That is a serious issue which on the face of it needs to be thoroughly investigated through viva voce evidence.

7. The items which were recovered from the petitioner cannot be shown to the court via photocopies of their images. The court must see and have a feel of them. Whether they are counterfeits or not will only come out once the court physically has a look at them. This is the real borne of contention between the parties herein.

8. The issue of damages cannot be determined by affidavit evidence alone as well. Serious accounts ought to be presented.

9. Justice shall be done to the two petitioners after taking the usual long route of listening to the parties orally. The court is alive to the fact that much time has been lost but that is our litigation.

10. In the premises, the court makes the following orders;

a) The two petitions shall be determined by way of oral evidence.

b) The petitioner shall be the plaintiff and the respondents the defendants.

c) Parties are hereby granted leave to file and exchange their witness statements and any other documentary evidence if need be within 30 days from the date herein.

d) The conservatory orders issued in favour of the petitioner stopping any criminal action against it or its directors and or employees is extended till the petition is determined.

DATED SIGNED AND DELIVERED VIA ELECTRONIC LINK AT NAKURU THIS 4TH DAY OF OCTOBER 2021.

H .K. CHEMITEI

JUDGE