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Court of AppealDismissedCivil Application No. NAI E070 of 2021· [2021] KECA 478 (KLR)

Triclover Industries (K) Limited v Premier Food Industries Limited [2021] KECA 478 (KLR)

Court of Appeal of Kenya
9 July 2021
WKW. KaranjaASAsike-MakhandiaSKS. Gatembu Kairu
2,047 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a trademark judgment, confirming that a winning argument alone cannot justify a stay of execution.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Karanja, Asike-Makhandia and Gatembu Kairu, JJ.A.) on Triclover Industries' notice of motion dated 1st March 2021 under Rules 5(2)(b) and 47 of the Court of Appeal Rules, seeking stay of execution of a High Court judgment (M. A. Odero, J., 5th February 2021, HCCC No. 463 of 2015) that granted Premier Food Industries permanent injunctions for trademark infringement and passing off over 'Clovers Lime Juice Cordial', a mandatory injunction to withdraw the product from sale, an account of profits and general damages of Kshs. 5,000,000. The applicant argued the appeal was arguable - contending the judge erred in finding passing off despite finding no infringement, and in awarding damages without proof - and that denial of stay would strip it of goodwill and cripple its 'Clovers' umbrella brand. The respondent countered that the appeal was unarguable, that the judgment merely barred confusing packaging rather than the applicant's registered mark, and that the damages were quantifiable and refundable. Applying the twin Rule 5(2)(b) test, the court found the appeal not frivolous, since infringement and passing off required determination, but held the nugatory limb unsatisfied: the judgment did not bar production and any monetary loss was recoverable. Because both requirements are conjunctive, the application was dismissed with costs in the appeal.

Key legal issues

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01

The twin test for stay of execution under Rule 5(2)(b)

Holding

The applicant must demonstrate both an arguable appeal and that the appeal would be rendered nugatory if stay is denied; the two requirements are conjunctive.

Reasoning

The court restated the established principles from Githinji v Amrit, Patel v Transworld Safaris and Stanley Kangethe Kinyanjui v Tony Ketter. It found the first limb satisfied because the appeal raised serious questions on trademark infringement and passing off, but the second limb failed because the judgment did not bar the applicant from production or trading under its own registered mark, and the damages awarded were monetary, quantifiable and refundable. Failure on either limb required dismissal.

p. 3
02

Whether the injunctive orders would render the appeal nugatory

Holding

No, because the judgment only restrained use of confusingly similar packaging and the applicant could continue trading under its own rightfully registered trademark; monetary damages are recoverable.

Reasoning

The court read the impugned judgment carefully and found it did not bar the applicant from production, only from using logos and packaging likely to pass off as those of the respondent. The claim of business ruin was far-fetched. The decretal sum, being monetary, could be refunded by the respondent if the appeal succeeded, so no irreparable harm was demonstrated.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability test and the nugatory test; satisfying only one is insufficient and the application must be dismissed.
  • On arguability it suffices that the applicant demonstrates serious questions of law or a reasonable argument deserving consideration; the appeal need not succeed.
  • Where the loss complained of is monetary and quantifiable and capable of refund, the nugatory test is not satisfied.

Court orders

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  1. 1.Dismissal of the notice of motion dated 1st March 2021 seeking stay of execution
  2. 2.Costs of the application awarded to the respondent, to be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 47

Cases cited (10)

  • Kenya medical Lab Technicians Boards v. Prime Communications Limited
    (2014) eKLR
  • Ahmed Musa Ismael v. Kumba Ole Ntamorua & 4 Others
    Civil Application No. 256 of 2013
  • Reliance Bank Ltd v. Norlake Investments Ltd
    (2002) 1 EA 227
  • Mohamed Abdi Mahamud v. Ahmed Abdullahi Mohamad & 3 Others, Ahmed Ali Muktar (Interested Party)
    (2019) eKLR
  • Otieno, Ragot & Company Advocates v. National Bank of Kenya Limited
    (2020) eKLR
  • Black Beauty Products Limited v. Stripes Industries Limited
    (2004) eKLR
  • G4S Security Services (K) Limited v. Group Four Security Limited
    (2007) eKLR
  • Githinji vs Amrit & Another
    (2004) eKLR
  • Patel vs Transworld Safaris Ltd
    (2004) eKLR
  • Stanley Kangethe Kinyanjui vs Tony Ketter & 5 Others
    [2013] eKLR
On appeal from
High Court of Kenya at Nairobi, Commercial and Tax Division
HCCC No. 463 of 2015
Jurisdiction invoked
Rule 5(2)(b) and Rule 47 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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Cite this brief

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Cite this brief

Caselaw, "Triclover Industries (K) Limited v Premier Food Industries Limited [2021] KECA 478 (KLR)", Case Analysis (2021). Civil Application No. NAI E070 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/478/eng@2021-07-09

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