Kenya Revenue Authority v Doshi Iron Mongers & another [2016] KECA 378 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed KRA cannot enforce trademark law, and that an appeal is limited to what's in the notice of appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction to consider grounds in the memorandum of appeal falling outside the notice of appeal
- 2.Whether the award of general damages of Kshs. 3.5 million was justified and properly placed on the appellant alone
- 3.Whether the use of Customs Form F89 was ultra vires the Customs and Excise Act
- 4.Whether the appellant's code of conduct was null and void for want of gazettement
Key legal issues
#Scope of appeal defined by notice of appeal
The notice of appeal confines the appeal; grounds outside it cannot be entertained absent an amended notice
Rule 75(3) requires a party appealing part of a decision to specify the part complained of. A party who specifies that part cannot ambush opponents with new grounds in the memorandum of appeal or submissions. Even a first appellate court's power to re-evaluate evidence must be exercised within the confines of the notice of appeal. Only grounds 4, 5, 7, 8, 10, 11 and 13 fell within the notice here.
Award of general damages for unconstitutional raids and seizures
The award of Kshs. 2,000,000 and Kshs. 1,500,000 was neither inordinately high nor low and was justified by uncontroverted evidence of unlawful raids, acquittals and prolonged detention of goods
The Judge had uncontroverted evidence of repeated raids by an unlawful secretariat, criminal prosecutions ending in acquittals because counterfeit status could not be established, and continued detention of goods even after the registrar of trade marks confirmed they were not counterfeits. Applying Butt v Khan, the discretionary award disclosed no erroneous estimate or wrong principle.
Use of Customs Form F89
Use of Form F89 was ultra vires the Customs and Excise Act: the form is not provided for in the Act, was used for the wrong purposes, and was signed by unauthorised persons
The Act's forms are listed exhaustively in the First Schedule and F89 is not among them. Where a proper officer seizes goods, form C53 should issue; detention of goods under ss. 34 and 39 cannot exceed 21 days, yet goods were held indefinitely. Strangers endorsed the form, contrary to s. 12(2)(b) prohibiting interference with goods except under the Act.
Validity of the appellant's code of conduct
The code of conduct was not subsidiary legislation requiring gazettement under Cap 2, so it could not be null and void as at the material time
The code was an internal document guiding employee standards, not regulations within the Interpretation and General Provisions Act. The Judge's finding is noted as prescient given the Leadership and Integrity Act 2012, but on the law as it then stood the code was not null and void. This did not alter the outcome, which rested on the other grounds.
Legal principles established
#- A party who appeals against only part of a decision is bound by the notice of appeal and cannot expand the appeal through the memorandum of appeal or submissions; the Court has no jurisdiction over matters outside the notice of appeal
- Customs and Excise Act powers do not extend to enforcing trademarks or counterfeit laws; proper officers under the Act cannot assume police powers
- A trademark is a proprietary right in personam and only the rights holder can identify infringement and enforce it
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate
Court orders
#- 1.Appeal dismissed with costs to the respondents
- 2.Only grounds 4, 5, 7, 8, 10, 11 and 13 of the memorandum of appeal considered, being within the notice of appeal
- 3.Award of general damages of Kshs. 2,000,000 and Kshs. 1,500,000 to the first and second respondents left undisturbed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Application No. 1206 of 2004 (O.S. No. 1206 of 2004)
- Jurisdiction invoked
- Article 163(3) of the Constitution, invoked through Rule 75 of the Court of Appeal Rules
Relief refused
#Appellant's challenge to the High Court declarations that the Anti-counterfeit Secretariat was illegal and that only a rights holder can enforce a trademark
Those declarations were not appealed against and fall outside the notice of appeal
Appellant's ground on the invalidity of its code of conduct succeeded only in part and did not affect the outcome
The code was internal and not subsidiary legislation requiring gazettement, but the point was peripheral
Costs
Appeal dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We have no jurisdiction to consider those issues that fall outside the notice of appeal before us.
The Notice of Appeal delineates the scope of the appeal of which the other side has notice .We shall therefore only consider those grounds in the memorandum of appeal that fall within the purview of the notice of appeal.
Proper officers under the Customs and Excise Act must act within the confines of that Act and deal with offences defined therein, and not assume powers of a police officer under Cap 84 of the Laws of Kenya.
This in our view was an erroneous statement as 'counterfeit' is not synonymous with 'uncustomed', nor is it synonymous to 'contraband'.
In the circumstances, we dismiss it with costs to the respondents.
Issues in the judgment
#The Court states that the appellant's finding on the code of conduct cannot stand, yet concludes the appeal 'lacks merit' and dismisses it without expressly setting aside that declaration; the treatment of that one finding is left unclear
Judgment misdescribes Cap 472 as the Customs and Excise Act in one passage while elsewhere Cap 472 is cited for the Customs and Excise Act and Cap 84 for police powers, though the transcript elsewhere attributes Cap 84 correctly; internal citation of caps is inconsistent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Revenue Authority v Doshi Iron Mongers & another [2016] KECA 378 (KLR)", Case Analysis (2016). Civil Appeal No. 162 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/378/eng@2016-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.