The Republic Of Kenya
In the High Court of Kenya at Nairobi
Constitutional and Human Rights Division
Petition No. E536 of 2022
Between
Kenya Pharmaceutical Distributors Association………………………………………….1st Petitioner
Dr. Isaac Kamamia Wa Murichu…………………..2nd Petitioner
Versus
Anti-Counterfeit Authority…………………….1st Respondent
Attorney General…………………………….…..2nd Respondent
Cabinet Secretary For Trade,
Investments And Industry……………………….3rd Respondent
And
Kenya Industrial Property Institute….1st Interested Party
Pharmacy And Poisons Board……..….....2nd Interested Party
Competition Authority Of Kenya...…….3rd Interested Party
Cabinet Secretary For The Ministry Of Health……………………………………....4th Interested Party

Ruling

Background of the Case

1. The Petitioners herein filed a Petition dated 8th December 2022. They stated that the 1st Petitioner’s does the business of import and export of drugs and other health products and technologies.
2. The Petitioners averred that by virtue of Section 32 (j) of the Anti-Counterfeit Act, No. 13 of 2008, it is an offence for any person to import into Kenya any good bearing a trademark that has not been recorded by the 1st Respondent whereas Section 32(k) makes it an offence to import any item that is not branded. The amendment to the Act, Section 34B further requires recording of Intellectual Property Rights (IPR) in relation to goods that have been imported into Kenya with the 1st Respondent.
3. In keeping with that mandate, the 1st Respondent pursuant to Section 34B of the Act, issued a public notice on the 26th April 2022 being Public Notice No.1/2022 directing that recording of IPR would commence from 1st July 2022. Traders were thus required to declare particulars of the IPR for all goods imported into Kenya from that date.
4. The 1st Respondent on 24th May 2022 issued another Public Notice No.2/2022. This Notice sought to extend the deadline for commencement of the directive in Public Notice No.1/2022 to 1st January 2023.

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