- The court took into determination the legality of the default sentence and found that it was unlawful.
- It however did not comment on the trial court's direction that the seized counterfeit goods be forfeited to the state for onward destruction.
Image: FILE
Rose Nyambura was 13 months ago charged with importing counterfeit goods into the country, contrary to the Anti-Counterfeit Act of 2008.
She was convicted and sentenced to pay a fine of Sh3 million in default to serve four years imprisonment.
Aggrieved, Nyambura moved to the High Court challenging the conviction and sentencing.
Presenting her appeal before Judge Diana Rachel Kavedza, she challenged the state's evidence upon which her conviction was based and complained that the trial court failed to consider her mitigation during sentencing.
The High Court revisited the case afresh and concluded that the trial court's sentencing of four years on default was unlawful.
The law prescribes that a default sentence of a fine exceeding Sh50,000 is 12 months.
"The default sentence of four years imposed on the appellant by the trial court was unlawful," Kavedza ruled.
Rectifying this, the judge sentenced Nyambura to serve 12 months in default running from June 17, 2022, ultimately setting her free without stepping foot in jail since the jail term had elapsed by the time the ruling was given.
"In the premises, the sentence is hereby set aside and is substituted with a sentence of Sh3,000,000 in default to serve 12 months imprisonment. The default sentence will take effect from the date of sentence by the trial court on June 17, 2022," she ruled.
In the case, Nyambura was accused of bringing into the country 65 boxes of circuit breakers marked Kavells which were suspected to be counterfeit because of the similarity of the trademark to Havells.
Havells is a registered trademark in the country.
The offence was committed on March 2019, when the shipment arrived in Mombasa and was railed to the Inland Container Depot in Nairobi.
There were five prosecution witnesses.
Assistant registrar of trademarks at Kenya Industrial Property Institute Eunice Njunguna told the court she had entered the trademark Havells, which came into effect on February 8, 2010, for 10 years.
Another trademark was registered as Havel on July 30, 2010, valid till July 30, 2022, for class 9 which is electrical switches, miniature circuit breakers, leakage circuit breakers, electric wires and cables, a meter, vault meters, electric relay distribution boards, fuses, and thermostats.
She told the court that she searched for Kavell and established that it was not a trademark registered in Kenya. This was done under the application of an agent of QRG Enterprises.
QRG Enterprises is a company incorporated under Indian Law, under which Havell's trademark was registered.
The agent, however, said she did not inspect the goods bearing the trademark Kavell.
The court also heard from Alexander Musyoki the port clerk at Songhong freight services who said on May 4, 2019, he was assigned documents to verify the goods.
At around 1 pm, anti-counterfeit officers arrived and asked him to unload the goods for verification.
The officers asked him to separate the boxes with the Havells brand and after confirmation informed him that the goods were counterfeit.
He was asked to retain the goods in the container which was transferred to the customs warehouse.
On May 16, 2019, the officers transferred the boxes to the customs warehouse and a form was filled to show that the goods were seized.
The clerk said he could not tell whether the goods were counterfeit or not.
The third witness—Douglas Muriuki Mburugu and the director of Hamburg Movers said Nyambura was one of his clients and he imported goods from China on her behalf.
Hamburg Movers consolidates goods and imports them on behalf of small-scale importers.
Muriuki is also a manager at Songhong Limited, a clearing agent.
"Once goods from their various clients are enough to fill a container, they apply for inspection by a Kenya Revenue Authority agent in China. If they meet the required standards, they are shipped to Kenya," he told the court.
Veronica Ndinda Matali, the Anti-Counterfeit agent who verified the shipment said she summoned Nyambura at the Agency and informed her of the results.
She prepared a report dated May 4, 2019, which was produced in court.
Isaac Muthaura, an employee of the Anti-Counterfeit Authority told the court that on the fourth day of May, he was in a routine inspection when he was alerted of suspected counterfeit goods.
He joined others and confirmed that the consignment of circuit breakers of different dimensions.
They found them suspicious because of the similarity in trademark to Havells.
On cross-examination, he indicated the manufacturer of the goods was not indicated in the importation documents.
Further that the appellant paid for the goods- according to a manifest that Nyambura imported 65 carton boxes which were opened in the presence of KRA and Anti-counterfeit officers.
She was contacted and the company paid Sh167,750 and her goods were in entry 98,204.
The court examined the prosecution's case and found that Nyambura had a case to answer.
She said she indeed ordered goods from China and paid $6,999(Sh999,457).
She added that she was directed to pick the good after they were delivered but she did not find them.
Nyambura was informed by a customer assistant that similar goods had been taken to Kangundo Road.
She met a Chinese national who informed her that she will get her goods in a week.
She was later summoned to the Copyright Offices and told to write a statement confirming that the goods belonged to her which she denied.
Thereafter, she made a report to the police station on the disappearance of her goods.
In July 2019, she was arraigned in court.
Upon determination, the court found that Nyambura failed to sufficiently challenge the prosecution's evidence on the counterfeit.
It said the prosecution proved its case beyond a reasonable doubt.
The court further rejected her argument that the trial court failed to adequately consider her defence.
"From the record, the trial court considered her defence and found it to be unbelievable. This was the justification for the rejection of the defence evidence. I, therefore, reject the appellant's ground in that regard," Kavedza said.
The court took into determination the legality of the default sentence and found that it was unlawful.
It, however, did not comment on the trial court's direction that the seized counterfeit goods be forfeited to the state for onward destruction.