Puratos Kenya Limited v Registrar of Companies & 1 other

3. The affidavit in support was sworn by an official of the applicant. It is averred that the applicant was registered in Kenya on 26th September 2019, while the interested party was registered on 4th January 2024. The applicant wrote to the 1st respondent, a letter dated 2nd January 2025, asking the 1st respondent to direct the interested party to change its name, in exercise of its power under section 58 of the Companies Act, to another name sufficiently distinct from that of the applicant. Another letter was written to the 1st respondent, dated 28th January 2025, pointing out the conceptual similarities between the 2 names, and the admission of liability by the interested party. The 1st respondent replied to those letters, by its own, of 18th February 2025, declining to exercise its power under section 58 of the Companies Act, on grounds that the 2 names did not meet threshold of similarity and that trademarks disputes were outside the mandate of the 1st respondent. 4. It is averred that that decision was founded on consideration of irrelevant considerations and a grave error, and failed to take into account the law that governed the decision-making powers of the 1st respondent. It is asserted that there was similarity in the names, both visually, conceptually and phonetically. It is argued that the use, by the interested party, of the term PURA, as a component in its branding and services, created an impression that it was related or associated with the applicant, it was collaborating with or had a co-branding agreement with the applicant, and the goods and services it offered were an extension of the goods and services offered by the applicant. 5. It is submitted that the registration of the interested party was in bad faith, and was designed to take unfair advantage of the applicant’s brand, goodwill and well-known name. There is also the argument that the name adopted by the interested party violated the public’s consumer rights, under Article 46 of the Constitution and section 55 of the Competition Act, Cap 504, Laws of Kenya, as it operated in the same market segment as the applicant, and there was likelihood of reputational damage, if it was allowed to continue to conduct business under that name. It is argued that the interested party would not suffer damage if it changed its name, for it has been in operation for less than 2 years. It is submitted that internal mechanisms for appeal and review had been exhausted. 6. Attached to the affidavit are several documents. There is a document showing registration of the mark Puratos. There are copies of certificates of incorporation of the applicant and the interested party, in Kenya, by the 1st respondent. There is a copy of the letter of 2nd January 2025, that was written to the 1st respondent, by the applicant. There are also copies of documents, being letters and others, from both the applicant and the interested party, relating to the use of brand name Pura Food. There is a letter dated 28th January 2025, addressed to the 1st respondent by the applicant, on the similarity between the names of the applicant and the interested party. There is also the letter from the 1st respondent, declining to deregister the name of the interested party. There are also copies of pleadings filed in KIPI, in a matter between the 2 parties, over the use of the brand Pura Food. 7. The only response to the suit is by the interested party, who has filed a replying affidavit and a notice of preliminary objection, both dated 2nd March 2026. 8. In the notice of preliminary objection, it is argued that the High Court lacked jurisdiction, on account of the doctrine of exhaustion of remedies; that the matter ought to have been filed at the KIPI, under the Trademarks Act, Cap 506, Laws of Kenya; that the Companies Act no longer governs company name registration; the application seeks to compel exercise of statutory discretion; and that no public law wrong is disclosed, to warrant the remedy of mandamus. 9. The replying affidavit is by an official of the interested party. It is averred that prior to registration, the name had been subjected to name approval, and was approved by the 1st respondent. It is also averred that the interested party was not associated with the applicant, and operated wholly independently of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6543/eng@2026-04-24 2

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it. It is asserted that Pura Food and Industries totally differed materially from Puratos Kenya Limited, and no actual confusion, misdirected communication, customer complaints and loss attributable to the interested party were exhibited. It is submitted that the complaint by the applicant was duly considered by the 1st respondent, and a reasoned decision was made, declining the name change. It is argued that Puratos and Pura were entirely distinct, with no apparent similarity. It is submitted that the applicant was already before KIPI, and he was duplicating proceedings, by filing the instant suit. 10. In the directions, given on 3rd March 2026, the parties had been given time to file written submissions, for canvassing the suit. I only see submissions by the applicant. 11. The applicant argues around the matters raised by the interested party in its preliminary objection. There are also submissions on whether this court should carry out a merit review of the decision of the 1st respondent, and Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) is cited. It is also submitted that the court need not issue the mandamus order, instead it may set aside the decision, and remit it to the 1st respondent for reconsideration. There are several other arguments, which I have also read and considered. 12. The issues raised in this matter are amenable to judicial review, for they relate to a decision made by an administrative official, the 1st respondent, in an administrative matter, touching on rights. It would be a decision amenable to quashing, and orders can be made to compel the 1st respondent, to do something, with respect to it. The power, given to the 1st respondent, under section 58 of the Companies Act, is exercisable in a discretionary manner. That exercise of discretion can still be done in a manner that would attract judicial review reliefs. Therefore, the applicant was within its rights to initiate judicial review proceedings with relation to it. 13. I am alive to Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR), and the position that was taken therein, that whereas Common Law judicial review remedies, under Order 53 of the Civil Procedure Rules, are surrounded by strictness of procedure, and narrowness of focus on process, the remedies under the Fair Administration of Actions Act are broader in scope. There could be examination of matters beyond the process, going into the merits of the decision challenged. On that account the applicant was also within its rights, to challenge the said decision, in a manner that would invite merit review. 14. However, the issues placed before the court herein would go beyond remedy by judicial review. They are too contested. One is about the name of the interested party, and the other is about the brand. Both were placed before the court. With regard to one, the applicant argues that the name of the interested party is too similar to its own name, and that could lead to confusion, with consequences of a commercial nature. There are claims around violation of competition law. With respect to the other, it is argued that part of the name of the applicant, Puratos, is a registered trade mark, protected by intellectual property law. 15. The nature of the dispute, in my view, was beyond resolution, by the applicant merely writing to the 1st respondent, and asking that the interested party be compelled to change its name. The very nature of the dispute is beyond resolution by way of pleadings and written submissions only. It requires the taking of oral evidence. The dispute is not really a matter between the applicant and the 1st respondent, but rather between the applicant and the interested party. That would explain why the respondents have not even filed any responses to the suit, leaving it to the applicant and the interested party to square it out. The respondents have no real interest in the matter, beyond discharge of their statutory mandate. The real dispute is between the applicant and the interested party, over the name and the brand. Yet, the interested party, who stands to lose the most, should the decision go against it, is not even named as a principal party to the matter, that is as a respondent, but as a peripheral party, an interested party. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6543/eng@2026-04-24 3

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16. As the real issue is not between the applicant and the 1st respondent, one gets the sense that the litigation herein is by proxy, or is a proxy-fight, instead of being between the real or principal combatants. The fight is being taken to the 1st respondent, instead of to the interested party. The 1st respondent has become a proxy, in the fight between the 2 commercial entities. The issue is being fought over registration of a company, against the registration official, instead of being fought as a commercial dispute, between the 2 commercial entities. That fight should be before the court dedicated to resolving commercial disputes, because it is a commercial dispute, and not really a dispute over registration. It is a larger fight over commercial interests, rather than a minor quarrel over registration. 17. The applicant ought to have filed a suit at the commercial court, where it would have squared it out with the interested party, in a proper suit, where evidence can be taken, on whether the interested party is entitled to retain the name, should similarity be established by the applicant. The issue of the branding, which is intertwined with the name, is also another matter for squaring out between the applicant and the interested party. All these are matters that would have required a deeper delving into the evidence, which cannot possibly be achieved through filing pleadings and written submissions, without taking oral evidence. 18. I am not persuaded that the orders sought in the suit herein should be granted, for the reasons that I have discussed. The suit should have been filed elsewhere, where the principal players, the applicant and the interested party, would have had a better chance of being heard, exhaustively, on the dispute that is between them. I, accordingly, dismiss the Originating Motion herein. I shall, however, not award costs. DELIVERED VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, THIS 24TH DAY OF APRIL 2026. W MUSYOKA JUDGE Mr. Abdirahman, Court Assistant. Advocates Ms. Omamo, instructed by ADRA Advocates LLP, for the ex parte applicant. Mr. Gitonga, instructed by Gitonga & Tollo, Advocates for the interested party. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6543/eng@2026-04-24 4

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