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Court of AppealDismissedCivil Application No. NAI 303 of 2004 (UR.153 of 2004)· [2004] KECA 27 (KLR)

Black & Beauty Products Ltd v Stripes Industries Limited [2004] KECA 27 (KLR)

Court of Appeal
22 December 2004
EGE. M. GithinjiPWP. N. WakiWDW. S. Deverell
1,236 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt a trade mark judgment, saying vague claims of business collapse are not enough to stop enforcement.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules by Black & Beauty Products Ltd for a stay of execution of the judgment and decree of Emukule J, delivered on 13th October 2004 in High Court Civil Suit No. 1182 of 2000, pending an intended appeal. The High Court had found that the applicant infringed the respondent's registered trade mark YASMINA and granted an injunction restraining the applicant from manufacturing, importing, distributing, selling or offering for sale hair braids and hair pieces bearing the mark NEW MINA, together with costs of the suit; the court declined the further relief sought in the plaint for disclosure of suppliers and customers and damages or an account of profits. The Court of Appeal restated the twin criteria for a stay under Rule 5(2)(b): the applicant must establish that the intended appeal is arguable and that, if the stay is refused and the appeal succeeds, the appeal will be rendered nugatory. Considering the nugatory limb first, the court held that the injunction did not prevent the applicant from trading in products not bearing the NEW MINA mark, and that the applicant's assertions that it would have to close down and lay off workers were exaggerated and unsupported by detailed evidence. The court further noted that the absence of a damages or account-of-profits order, and of any cross-appeal, meant a stay would leave the respondent without remedy for post-judgment infringement. The application was accordingly dismissed with costs.

Key legal issues

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01

Whether the refusal of a stay would render the intended appeal nugatory

Holding

No. The injunction only restrains goods bearing the NEW MINA mark, the applicant could continue trading without it, and its claims of collapse and paralysis were exaggerated and not established by detailed evidence. Further, since the superior court made no orders on damages or account of profits and there was no cross-appeal, a stay would deprive the respondent of any remedy for post-judgment infringement.

Reasoning

The court examined the terms of the injunction and found it did not prohibit trading in unmarked hair products. The applicant's affidavit asserted closure, paralysis and lay-offs but offered no detailed explanation why continued business without the MINA mark was impossible. The court also noted the absence of any damages order or cross-appeal, meaning the respondent would have no remedy for continued infringement during the stay period.

p. 3
02

Whether it was necessary to decide the arguability limb

Holding

Having found the nugatory limb failed, the court declined to consider whether the appeal was arguable.

Reasoning

Both limbs of the Rule 5(2)(b) test must be satisfied; failure on one disposes of the application, so the court found it unnecessary to express detailed views on arguability.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) for stay of execution must establish both that the intended appeal is arguable and that the appeal will be rendered nugatory if the stay is not granted.
  • Bare assertions that a business will collapse or be paralysed without a stay are insufficient; the applicant must give detailed evidence establishing that the appeal would be rendered nugatory.

Court orders

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  1. 1.The application for stay of execution of the judgment and decree of the High Court pending the intended appeal is dismissed

Authorities

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Legislation

  • Trade Marks ActCap. 506
  • Court of Appeal RulesRule 5(2)(b)
On appeal from
High Court of Kenya, Milimani Commercial Court
H.C.C.C. No. 1182 of 2000
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Black & Beauty Products Ltd v Stripes Industries Limited [2004] KECA 27 (KLR)", Case Analysis (2004). Civil Application No. NAI 303 of 2004 (UR.153 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/27/eng@2004-12-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.