Mr. Kamau for the 2nd Defendant took Preliminary Objection to two of the orders sought namely those sought in prayer 2 and 4 as follows:-
(2) THAT this Honourable be pleased to stay proceedings in Chief Magistrate’s Criminal case No.1261 of 2005 pending the hearing and determination of this application and suit.
(4) A declaration that the television antennae and more particularly SONNET brand seized by the Defendants from the Plaintiffs do not infringe the Patent No.153 granted to the 1st Defendant and the plaintiff has a right to trade in these antennae, and an Order that the seized items be returned.
1. Whether the High Court has jurisdiction to stay criminal proceedings in pending the hearing and determination of this application and suit?
2. Whether the court has jurisdiction to make a declaration that the television antennae seized by the Defendants from the Plaintiffs infringe on a patent granted to the 1st Defendant?
RESOLUTION OF ISSUES
Mr. Kamau for the 2nd Defendant submitted that under Section 8 of the Law Reform Act, jurisdiction to grant an order of prohibition, which is what the order sought in prayer 2 seeks, can only be granted in an application for Judicial Review.
The Court in that respect accepted the submission of Mr. Kamau that the court had no jurisdiction to stay proceedings in the Chief Magistrate’s court in an application of this kind. If the applicant wished to challenge those proceedings then the proper remedy was by way of Judicial Review to which the Attorney General would be the Respondent.
With regard to the prayer seeking a declaration, in my view this court has no jurisdiction at this stage to grant such a declaration. Whether or not the Applicant has infringed the patent of the 1st Defendant can only be determined after a full hearing of the matter on its merits
Further, that the proposed declaration sought as above stated is under Section 103 of the Industrial Property Act No.3 of 2001 in which a Tribunal is set up to determine questions relating to the revocation or invalidation of a patent. This application has to be brought within 9 months from the date of publication of the grant of patent.
In the result the judge allowed the preliminary objection.
The applicant was however at liberty to pursue prayers 3 of his application. With regard to prayer 5, again this sought a declaration, which could not be granted on an interlocutory application.