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Title: Chloride Exide Kenya Limited and Anor v Zakayo Muchai Wainaina t/a Chloride Exide Solar
Venue: High Court at Nairobi (Milimani Commercial Courts)
Case ID: No. 443 of 2007
Authoring Judge: Lesiit J
Date of Decision: 31st October, 2008
Plaintiff(s): Chloride Exide (K) Limited and Associated Battery Manufacturers Ltd
Defendant(s): Zakayo Muchai Wainaina t/a Chloride Exide Solar
Keywords: Trademark infringement, Passing Off

Facts:
The instant case is an application by Chloride Exide (applicant) against Zakayo Muchai (respondent). The applicant had obtained judgment against the respondent where the latter was found to have infringed on the formers trade mark CHLORIDE EXIDE SOLAR. The court granted injunctive orders in favour of the applicant restraining the respondent from using the offending mark. The respondent did not obey the court orders leading to the present case. The applicant sought orders for the arrest of the respondent and enforcement of the orders granted.

Issues
Whether, the respondent was in contempt of court.

Holding
The court examined the evidence before it and found in favour of the applicant. The court stated that the respondent had indeed continued on its infringement of the applicants’ trademark despite a court order issued against it.

Ruling
The application is a Chamber Summons dated 11th September, 2008. It is expressed to be brought under section 5
of the Judicature Act, Section 63 of the Civil procedure Rules, Order XXXIX rule 1, 2 and 2A (2) and Order 52 rules
2(1) and (2) of the Civil Procedure Rules.
It seeks orders as follows:
1. THAT the Defendant/Respondent and or his agents be committed to prison for such period as
would be deemed necessary by this Honourable Court for being in contempt of Court by disobeying
and breaching orders granted on the 13th day of June, 2008.
2. THAT the officer commanding Maua Police Station do enforce the injunction orders granted by
this Honourable Court on the 13th day of June, 2008.
It is grounded on four grounds namely:
(a) THAT the Defendant/Respondent has disobeyed this Courts orders granted on 13th June, 2008
and Decree issued on 18th July, 2008 by infringing the Plaintiffs’/Applicants’ trademark number 57835
comprising words “CHLORIDE EXIDE SOLAR” or any variations or derivations thereof.
(b) THAT the Defendant/Respondent was served with the aforesaid orders on 8th August, 2008.
(c) THAT the disobedience of the Court orders by the Defendant/Respondent has caused great
embarrassment, loss and injury to the Applicants and further damage is likely to be suffered by the
Applicants in the event that the disobedience continues unpunished.
(d) It is just and proper for the Honourable Court to grant the orders sought.

I have considered the Applicant’s affidavit in support of the application together with the submissions by counsel. The application is unopposed.
The brief facts of the case are that the Applicant obtained judgment against the Defendant as per the annexed decree. The very first order granted to the Plaintiff was a permanent injunction restraining the Defendant from
infringing or continuing to infringe on the Plaintiff’s trademark registration number 57835 comprising the words CHLORIDE EXIDE SOLAR.

The Applicant has shown that the decree was served on the Respondent on 8th August, 2008. The Applicant has annexed BN2 a letter from the Defendant to the Plaintiff Company in which the Defendant used the Plaintiff’s trademark. The letter is dated 2nd September, 2008. I am satisfied that there has been infringement of the Plaintiff’s trade mark and therefore a violation of the court injunction issued against the Defendant.

I am satisfied that the Defendant is in contempt of court order and that the contempt is continuous. I will grant prayer 1 of the Chamber Summons application dated 11th September, 2008 and order the arrest and committal of the Defendant to prison for a period of two months.

Costs will be borne by the Defendant.

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