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|Case Number:||Civil Appeal 23 of 2014|
|Parties:||Santam Services (E A) Ltd v Rentokil (K) Ltd & Kentainers (K) Ltd|
|Date Delivered:||28 Mar 2014|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Hatari Peter George Waweru|
|Citation:||Santam Services (E A) Ltd v Rentokil (K) Ltd & another (K) Ltd  eKLR|
|Case History:||(Appeal from the ruling of the Industrial Property Tribunal delivered on 21st January 2014 in Nairobi IPT Case No. 5 of 1999)|
|History Docket No:||5 of 1999|
An appeal from the Industrial Property Tribunal automatically stays the decision appealed against
Santam Services (E A) Ltd v Rentokil (K) Ltd & Another
Civil Appeal No. 23 of 2014
High Court of Kenya at Nairobi
H.P.G. Waweru, J
March 28, 2014
Reported by Andrew Halonyere & Anne Mbuthia
The Appellant brought an appeal against the decision of the Industrial Property Tribunal to revoke its patent, Number AP 773, with costs on the higher scale, registered with the African Regional Intellectual Property Organization (ARIPO) on October 15, 1999.
Despite the fact that the Industrial Property Act did not require it, the Appellant brought an application under Order 42, rule 6 of the Civil Procedure Rules, 2010, seeking stay of the decision of the Tribunal pending the hearing and disposal of the appeal, as a matter of caution.
Civil Practice and Procedure- Stay of proceedings in case of appeal- Appeal to the High Court against a decision of the Industrial Property Tribunal-– Civil Procedure Rules, 2010, Order 42, Rule 6
Statutes – Interpretation of statutes – Interpretation of section 104 of the Industrial Property Act - Whether section 104 of the Industrial Property Act implied that an appeal against a decision of the Industrial Property Tribunal operates as a stay of the decision
Section 104 of the Industrial Property Act provided:
(1) Any revoked or invalidated patent, utility model or industrial design or claim or part of a claim of a registered industrial design shall be regarded as null and void from the date of the grant of the patent or certificate of registration of the utility model or the industrial design.
(2) As soon as the decision of the Tribunal is no longer subject to appeal, the Chairman of the Tribunal shall inform the Managing Director who shall register and publish it as soon as possible in the Kenya Gazette or in the Industrial Property Journal.
Application was allowed.
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IREPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 23 OF 2014
SANTAM SERVICES (E A) LTD…………….…...….…...APPELLANT
V E R S U S
1. RENTOKIL (K) LTD
2. KENTAINERS (K) LTD ……………....…………..…...DEFENDANTS
(Appeal from the ruling of the Industrial Property Tribunal delivered on 21st January 2014 in Nairobi IPT Case No. 5 of 1999)
R U L I N G
1. By a ruling dated and delivered on 21st January 2014 the Industrial Property Tribunal (the Tribunal), established under the Industrial Property Act, Cap 509 (the Act), in its Nairobi IPT Case No. 5 of 1999, revoked with costs on the higher-scale the Appellant’s Patent Number AP 773 registered with the African Regional Intellectual Property Organization on 15th October 1999.
2. On 5th February 2014 the Appellant filed the appeal herein, thereby exercising its right of appeal conferred by section 115 (1) of the Act which provides –
“(1) Any party to the proceedings before the Tribunal may appeal in accordance with the rules made under this Part from any order or decision of the Tribunal to the High Court.
3. Section 104 of the Act provides as follows –
“104. Effect of revocation or invalidation
4. Though not stated in express terms, under subsection (2) of section 104 aforesaid an appeal acts as a stay of registration and publication of the decision of the Tribunal in the Kenya Gazette or the Industrial Property Journal. So, all the Appellant needed to do in this case was to inform the Chairman of the Tribunal that it had appealed against its order of 21st January 2014 (and provide evidence of such appeal!).
5. But the Appellant did more. It applied under Order 42, rule 6 of the Civil Procedure Rules by notice of motion dated 10th February 2014 for the main order that there be stay of the order of the Tribunal pending hearing and disposal of the appeal herein. Its learned counsel said that it applied out of abundant caution. I do not blame him as the wording of section 104(2) of the Act is not express enough.
6. However, upon a closer look at that wording of section 104(2), there cannot be any doubt that the intention of the legislature was that an appeal once duly lodged, and as long as it remains undisposed of, shall operate as a stay of the decision of the Tribunal, which decision may not be registered or published in the Kenya Gazette or the Industrial Property Journal pending disposal of the appeal. I so hold.
7. In the event I will allow the application and grant the stay sought for the avoidance of the doubt (if there be such) in the wording of section 104(2) of the Act. In the event also I need not consider the requirements of Order 42, rule 6 of the Civil Procedure Rules or any of the other arguments advanced by the learned counsels.
8. Costs of the application shall be in the appeal. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 27TH DAY OF MARCH 2014
DELIVERED THIS 28TH DAY OF MARCH 2014