Patents
Sanitam services (EA) LTD v Tamia Limited & 16 others [2012] eKLR
Facts
Sanitam Services (EA) Ltd, the petitioner, is the registered proprietor of Patent No. AP 773, granted by the African Regional Intellectual Property Organisation (ARIPO) in 1999. The patent covers an invention for a foot-operated litter/sanitary disposal bin with a disposable lid, designed to conceal the contents, prevent access by scavengers, reduce odours, and avoid spillage if overturned. The petitioner claimed that various respondents had infringed upon its intellectual property rights by producing and selling similar bins. The petitioner had previously litigated similar disputes in other cases and now sought several reliefs, including declarations of infringement, injunctions, and orders for the seizure and destruction of infringing products.
Issue
Whether the petition disclosed a cause of action against the respondents, particularly under the Constitution.
Whether the enforcement of the petitioner’s intellectual property rights should proceed under constitutional provisions or be handled through statutory mechanisms.
Rule
The court relied on Articles 11(2)(c) and 40(5) of the Constitution of Kenya, which mandate the state to support, promote, and protect intellectual property rights. However, the court emphasised that these provisions are not self-enforcing and require the state to implement legal and policy measures. The Industrial Property Act provides a statutory framework for the protection of intellectual property rights, including a specialised tribunal, the Industrial Property Tribunal, for resolving patent disputes.
Analysis
The court first addressed whether the petition disclosed a cause of action under the Constitution. The petitioner argued that Articles 11(2)(c) and 40(5) of the Constitution entitled it to protection against the infringement of its patent rights. However, the court noted that these constitutional provisions impose obligations on the state to take measures to protect intellectual property rights, not directly on private parties. The state had fulfilled its obligations by establishing a legal framework, including the Industrial Property Act, through which the petitioner’s rights could be enforced.
The court further found that the petitioner’s claims did not raise any constitutional issues but rather involved the enforcement of ordinary intellectual property rights. The petitioner had previously availed itself of the statutory mechanisms to enforce its patent rights and had succeeded in obtaining orders against other parties in different cases. Therefore, there was no basis for invoking the constitutional provisions in this petition.
Additionally, the court observed that the petition did not demonstrate any infringement by the respondents, nor did it establish a connection between the reliefs sought and the respondents’ actions. The petition primarily recited constitutional provisions without showing how the respondents had violated any fundamental rights. Consequently, the court found that the petition did not disclose a cause of action against any of the respondents and was, therefore, untenable.
The court’s decision to strike out the petition was well-grounded in law. By emphasising that the constitutional provisions relied upon by the petitioner were not self-executing, the court correctly pointed out that the state’s duty under Articles 11(2)(c) and 40(5) had been fulfilled through the establishment of a statutory framework for the protection of intellectual property rights. The court’s stance that ordinary intellectual property disputes should be resolved through the mechanisms provided by the Industrial Property Act rather than through constitutional petitions aligns with the principles of legal hierarchy and judicial efficiency.
Conclusion
The court struck out the petition for failing to disclose a cause of action against the respondents. It held that the petitioner should pursue any alleged breaches of its intellectual property rights through the statutory mechanisms provided by the Industrial Property Act. The court awarded costs to the 1st, 2nd, 3rd, and 8th respondents, who had defended the proceedings, assessing the costs at Kshs. 40,000 for each respondent.
Ruling available here.