Anti-Counterfeit Agency v Barloworld Limited & Another
The bottom line
#Kenya's Court of Appeal allowed the Anti-Counterfeit Agency to keep seized goods in its custody while it appeals a High Court decision in Barloworld's favour.
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 intended appeal is arguable
- 2.Whether, absent a stay, the intended appeal would be rendered nugatory, including consideration of the public interest
Key legal issues
#Arguability of the intended appeal
The grounds - that Mativo J delved into merits pending before the trial court, applied wrong principles and infringed the right to be heard - were not frivolous.
The court applied the settled Rule 5(2)(b) test. It noted that only one bona fide arguable ground is needed, reviewed the draft memorandum of appeal, and concluded the grounds raised deserved determination at the hearing of the appeal.
Whether the appeal would be rendered nugatory, factoring in public interest
Public interest weighed against release of the seized consignment, which was the substratum of the appeal; releasing the goods would render the appeal nugatory.
Relying on Reliance Bank and the Supreme Court's Munya decision recognising public interest as a third condition, the court held that the Agency's mandate to protect citizens from counterfeit goods justified preserving the consignment pending appeal.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that, unless stayed, its success will be rendered nugatory.
- A single bona fide arguable ground suffices on the arguability limb.
- Nugatory factors are case-specific and public interest may be a relevant consideration in stay applications.
Court orders
#- 1.Stay of the decree of Mativo J pending the hearing and determination of the intended appeal
- 2.Stay of further proceedings in High Court Petition No. 103 of 2017 pending the hearing and determination of the intended appeal
- 3.Costs of the application to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Petition 103 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
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.
For an applicant to succeed he must not only show that his appeal or intended appeal is arguable, but also that unless the court grants him an injunction or stay the success of that appeal will be rendered nugatory.
For those reasons the application is allowed with costs.
our preemptive view is to enhance that legal responsibility, with the result that the appeal may well be rendered nugatory in the event the subject goods, which are the substratum of the intended appeal, are released.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anti-Counterfeit Agency v Barloworld Limited & Another", Case Analysis (2018). Civil Application NAI 169 of 2017 (UR 134/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/845/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.