Bench Bulletin - Issue 12 - Kenya Law Reports

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KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT establishes that the accused person’s were acting jointly and or on common design-malice aforethought-whether failure to prove motive vitiated an accused persons conviction-whether it was necessary to prove motive as one of the elements in a criminal offence-whether the prosecution discharged its onus of establishing a prima facie case against both accused persons-Penal Code (Cap 63) 9, section 203, 204, Criminal Practice and Procedure-witness-prosecution witness-prosecution failing to call the investigating officer as a witness in the trial-other witness categorically placing the accused at the crime scene-circumstances under which the evidence of the investigating officer would have been required-effect of failing to call the investigating officer-whether the lack of evidence left a gap in the prosecution’s evidence Criminal Practice and Procedure-defence-defence of alibi-accused person raising defence of alibi-accused claiming that the complainants had a grudge against him-viability of the defence-whether the defence was an afterthought The accused persons were arraigned before the High Court on an information charging them with murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63). During the trial a total of nine witnesses testified for the prosecution. The evidence was that the accused person had been among a mob of people who had gone to the deceased’s home and inflicted fatal injuries on him allegedly because they suspected him of theft. Most of the witnesses testified to knowing both accused persons personally. A post-mortem examination of the deceased’s body, a report of which had been adduced in evidence, stated that the deceased had multiple bodily injuries and that he had suffered brain damage due to serious head injuries. In their defence the accused persons claimed not to have known the deceased. It had been their contention that they were not in the mob that attacked the deceased on the material day and further that the witnesses had a grudge against them. Held: 1. Failure to prove motive did not, per se, vitiate an accused person’s conviction because under section 9 of the Penal Code motive was not one of the necessary elements to be proven in a criminal offence. However even if motive was necessary, it could be found in the evidence of the witnesses who apparently alongside the deceased, were allegedly being disciplined for having stolen. 2. Where the case against two accused persons proceeded on the basis of their acting in concert then both could be found guilty, if the evidence established that they were acting jointly and or on common design. It did not matter that they were in an amorphous group. The deceased was a victim of their mob justice. The action of each of them during the execution of the mandate was the action of all others as it was in pursuance of a common purpose. The action herein of the accused was in furtherance of that common purpose and the action of each affected the other. 3. There was no law to the effect that in every case the investigating officer had to testify. Such cases were confined to their peculiar facts and circumstances. In this case, the evidence of the investigating officer would have been necessary if there had been loose ends in the prosecution case that required tying up. There was no unbridgeable gap in the prosecution case that his/her evidence would have been of assistance. 4. The accused person’s defence of alibi when juxtaposed against the overwhelming prosecution evidence failed to stand. The witnesses had no reason to have a grudge against the accused and the defence was a mere afterthought. It was the accused in the company of others who inflicted fatal injuries on the deceased that led to his subsequent death. They were properly and positively identified in the act by the witnesses. They knew that their actions would probably cause and indeed did cause the death of the deceased. Accused convicted Advocates Ms Mwai counsel for the accused Mr. Makura Senior State Counsel 74
KENYA LAW REPORTS BENCH BULLETIN FROM THE COURTS — HIGH COURT Infringement of Trademark Rights Glaxo Group Limited v Syner-med Pharmaceuticals Ltd Miscellaneous Application 792 of 2009 High Court at Nairobi L. Kimaru. J February 4, 2010 Reported by Andrew Halonyere. Intellectual Property – infringement of trademark rights – appeal against the decision of the Registrar of Trademarks to register the respondent’s trade name “SYNERCEF” – appellant’s contention that the trade name was phonetically similar in pronunciation and appeared visually similar to another registered trademark “ZINACEF” – whether there was infringement of trade mark rights - whether the appeal had merit – Trademark Act (Cap 506) sections 7,14,15,18 (1),(3) and 52. The appellant and the defendant were both pharmaceutical companies engaged in the manufacture and sale of pharmaceutical products. The appellant registered a trademark “ZINACEF” in Kenya in respect of class 5 in relation to pharmaceutical and medicinal preparations under the Trade Marks Act. The respondent applied to the Registrar of Trademarks to register the trade name “SYNERCEF” as a trademark in the same class. The appellant opposed the registration of the trademark on the ground that it sounded phonetically and appeared visually the same as the appellant’s trademark “ZINACEF”. The Registrar of Trademarks, having heard representations made by the appellant and the respondent, dismissed the appellant’s opposition on among other grounds, that the pronunciation and semantics of the first syllables were different. Being aggrieved by the decision, the appellant, pursuant to the provisions of Section 21(6) & (7) of the Trade Marks Act filed an appeal to the High Court. The issue before the High Court was whether the Registrar had reached the correct decision in disallowing the opposition by the appellant for the registration of the trademark “SYNERCEF”. Held: 1. It was evident that the Registrar of Trade Marks fell in error when he truncated the name “SYNERCEF” and “ZINACEF” by excluding the suffix “CEF” and thereby reaching the wrong conclusion that the prefix “SYNER” and “ZINA” had no meaning and therefore the subsequent registration did not constitute an infringement of the appellant’s trade name. The correct position of the law was that in such cases, the words that were the subject of the dispute relating to a trade name should have been considered as a whole and not in the manner that the Registrar did. If the Registrar had considered the words as a whole he would undoubtedly have arrived at a different decision. Therefore it was clear that the words “SYNERCEF” and “ZINACEF” were phonetically similar in pronunciation and it was likely to cause confusion and deception in the market. 2. The Court took Judicial notice of the fact that many people in Kenya were likely to pronounce the letter “SY” as “ZI” and therefore the two names would be pronounced in a phonetically identical manner and not distinctly as was claimed by the respondent. 3. The fact that the two products sold by the appellant and the respondent were prescription only, did not preclude the fact that confusion would have been caused when an order was made orally or by telephone to such professions such as pharmacists or doctors. 4. The name “SYNERCEF” was so similar, phonetically and visually to the registered trade mark of the appellant “ZINACEF” to an extent that it would cause confusion and deception in the minds of the public. Appeal allowed, registration of “SYNERCEF” as a trademark cancelled. Advocates Mr Kinoti for the Appellant, Mr Sharad Rao for the Respondent Issue 12: April-June 2010 75
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Bench Bulletin - Issue 12 - Kenya Law Reports

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