Hassan & another v Anti-Counterfeit Agency & another; Sime Derby Oils Professional SDN.BHD (Interested Party) (Petition E118 of 2024) [2025] KEHC 9200 (KLR) (Constitutional and Human Rights) (26 June 2025) (Judgment)

Key Facts

Issues

• Whether the petitioners are entitled to the relief sought, including prohibitions on investigations and declarations of rights infringement.
• Whether the petitioners' rights under Articles 10(1)&(2), 25(a)&(c), 27(1)&(2), 28, 29(c)&(d), and 47 of the Constitution were violated by the respondents' actions.
• Whether the petitioners retain a registered trademark after the Registrar of Trademarks' expungement ruling on 9 April 2021.
• Whether the 1st Respondent has the statutory power under the Anti-Counterfeit Act to investigate the petitioners' alleged trademark infringement.
• Whether the Petition establishes a reasonable cause of action against the 2nd Respondent by demonstrating a threat to the petitioners' constitutional rights.
• Whether the pending appeal (HCCC Case No. E014 of 2023) against the trademark expungement bars the 1st Respondent from proceeding with its investigation.

Holdings

• The court held that civil and criminal proceedings based on the same set of facts can proceed concurrently without being a bar to each other.
• The court determined that the Petitioners did not establish a reasonable cause of action against the 2nd Respondent, as the petition was premature and no decision to charge had been made.
• The Petitioners were found to have withheld material facts, coming before the court with unclean hands, which undermines their case.
• The petition was dismissed as it lacked merit, with the court finding no violation of the Petitioners' constitutional rights by the respondents.
• The Petitioners' trademark was expunged by the Registrar, meaning they are no longer the registered owners of the impugned trademark.
• The court found the Petitioners' allegations of malice against the 1st Respondent to be unfounded, as the investigation was based on probable cause.
• The 1st Respondent's investigation was deemed lawful under the Anti-Counterfeit Act, with the statutory regulations still in force as of the seizure date.

Remedies

• The court dismissed the petition, determining that it lacked any merits and that the petitioners failed to establish a valid cause of action against the respondents.
• The respondents and the interested party were awarded costs in relation to the dismissed petition.

Legal Principles

• The court held that for a constitutional petition to succeed, the petitioners must demonstrate a clear and immediate threat to their rights under Articles 22 and 258 of the Constitution. This standard was not met, as the petitioners failed to show the investigations or potential prosecution constituted an actual or imminent violation of their constitutional rights.
• The court emphasized that the petitioners bear the legal burden of proof under the Evidence Act, requiring them to establish facts supporting their claims. This includes proving the existence of a genuine threat to constitutional rights, not merely hypothetical allegations. The burden shifts to the respondents only if sufficient evidence is adduced by the petitioners.

Precedent Name

• Njunge v Ministry of Interior & Coordination of National Government & 3 others
• Mumo Matemu v Trusted Society of Human Rights Alliance and others
• Latifa M. Ramadhan v Omar M. Ramadhan & another
• Karl Wehner Claasen v Commissioner of Lands & 4 others
• Pharmaceutical Manufacturing Co. v Novelty Manufacturing Ltd.
• Diamond Hasham Lalji v Attorney General & 4 others
• Regina v Director of Public Prosecutions ex-parte Manning and Another
• Wilson Muriithi Kariuki T/A Wiskam Agencies v Surgipharm Limited
• Ngang'a & 12 others v Kahiú
• Sylvester Gaitano Odhiambo v Republic
• Unilever PLC v Bidco Oil Industries
• Callen Magoma Omari v Suneka Land Disputes Tribunal & 4 others
• Josephat Koli Nanok & another v Ethics and Anti-Corruption Commission
• Bernard Murage v Fineserve Africa Limited & 3 others
• Okiya Omtatah v Central Bank of Kenya & 7 others
• Javid Igbal Karim & another v Ze Yun Yang
• Philomena Mbete Mwilu v Director of Public Prosecutions & 3 others
• Saisi v Director of Public Prosecutions & 2 others
• Centre for Rights Education & Awareness (CREAW) v Attorney General & Another
• Kipoki Oreu Tasur v Inspector General of Police & 5 Others
• Kenafric Matches Limited v Anti-Counterfeit Agency & another

Cited Statute

• Anti-Counterfeit Act
• Office of the Director of Public Prosecutions Act
• Statutory Instruments Act
• Evidence Act
• Criminal Procedure Code
• Constitution of Kenya

Judge Name

Passage Text

• Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.
• The Register of Trade Marks is hereby rectified by expunging trade mark no. KE/T/2011/72138 'C.B.C. PURE WHITE COCONUT OIL' (WORDS AND DEVICES) from the Register under the provisions of section 35(1) of the Trade Marks Act.
• This Petition is bereft of any merits and is hereby dismissed with costs to the Respondents and the Interested Party.