Commercial and Tax Division v Simon Baraza & 1 other

said name as well as the Plaintiff’s logos and icons pending the hearing and determination of this suit; (5) an temporary freezing against the Mpesa Pay Bill No. 300067 and order of Account Numbers 725735082, 724056544 and 707259964 and any other Mpesa account number currently in use by the Defendants; prohibiting any and all dealings with the money in the account by the Defendants, their agents, nominees or any person claiming any right of interest under or through them. (6) the OCS, Mlolongo police Station be directed to enforce the orders of this Court. 2. The application is premised on the grounds outlined in its body and the supporting affidavit sworn by the applicant’s finance manager, CALEB OCHIENG APONDO on 7.4.2025. 2

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3. The applicant is the registered owner of the trademark Royal Mabati Factory Limited under the Trademark Registration No. 133966 pursuant to the Certificate of Registration issued on 2nd September 2015 and renewed on 6th June 2024 by the Registrar of Trademarks. 4. The applicant instituted this suit through a plaint dated 2.4.2025 claiming that the defendants are unlawfully and fraudulently using the plaintiff’s trademarked name and/or its variations, logos and icons with the intention of misleading and defrauding the plaintiff’s customers. 5. The applicant defendants’ infringement irreparable is contended that repeated trademark causing damage to dilution its the and business because the defendants are confusing, misleading, misdirecting and taking unfair commercial advantage of its goodwill and 3

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reputation by creating the impression that there exists a connection between its business and the accounts complained of, which is not the case. 6. The applicant asserted that if the injunctive orders sought herein are not granted, a significant risk of further deception and continued swindling of innocent and unsuspecting clients is likely to happen thereby occasioning it substantial and and reputational irreversible loss. That financial the harm occasioned by the repeated infringement cannot be remedied by way of damages. 7. Despite service, there was no response filed by the respondents. ANALYSIS AND DETERMINATION 8. The request before me is for an injunction to stop infringement of trademark. This is a matter of intellectual property rights. 4

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9. Thus, the court should be concerned with the protection of the rights. Therefore, the justice of the case should depend on the circumstances of the case whilst asking the traditional questions or principles for the grant of a temporary injunction established in Giella v Cassman Brown (1973) EA 358. To wit: whether the applicant has established a prima facie case with irreparable a probability injury that of success, cannot be compensated by damages if the injunction is not granted, and in case of doubt, that the balance of convenience tilts in its favour. 10. A prima facie case is one which, on evidence presented, establishes that a right exists which has apparently been infringed by the opposite party. Mrao Ltd v First American Bank of Kenya Ltd & 2 others 5

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11. But, a necessary caution that “…in considering whether or not a prima facie case has been established, the Court does not hold a mini trial and must not examine the merits of the Nguruman Limited Nielsen 2 & Others case v closely.” Jan the Bonde Court of Appeal 12. From a careful review of the material presented, I am satisfied that the plaintiff has established that it is the owner of the registered trademark in issue which has been infringed by the defendants. Thus, an infringement of their intellectual property right has occurred. Accordingly, prima facie for grant of an injunction. 13. Further, it has been established that the infringement of their intellectual property right shall occasion irreparable harm upon them unless an injunction is issued. 6

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14. The infringement is said to have occurred for some time and is continuing, hence, the necessity for the freezing order and the police to enforce the order. 15. Therefore, the relief that commends itself to me is to grant an injunction, freezing order as well as enforcement order by the police. 16. As a consequence, the application dated 7.4.2025 is allowed in the following specific terms: (1) An order of temporary injunction is hereby issued to restrain the defendants or agents from using the trademark name “Royal Mabati Factory Limited” or any variations of the said name as well as the Plaintiff’s logos and icons pending the hearing and determination of this suit; (2) temporary freezing against the Mpesa Pay Bill No. 300067 and An order Account of Numbers 725735082, 724056544 and 707259964 in use by the 7

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Defendants; prohibiting all dealings with the any money and in the account by the Defendants, their agents, nominees or any person claiming any right of interest under or through them. (3) The OCS, Mlolongo police Station is hereby directed to enforce order (1) of the orders of this Court. Dated, signed and delivered through Microsoft Teams online application this 23rd day of October, 2025 ------------F. Gikonyo M Judge In the presence of: Ms. Nasimiyu for plaintiff N/A by defendant CA Kinyua 8

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