- The court noted that the Exclusive Distribution Agreement provided that any dispute arising from the deal would be resolved through arbitration in Ireland.
- Further, if the parties want to seek interim measures of protection, it has to be from the courts of the Republic of Ireland which have exclusive jurisdiction.
Image: FILE
Gamma Zenith Kenya and Trinity Biotech of Ireland entered into an Exclusive Distribution Agreement via a letter dated November 8, 2021.
In the agreement, Trinity appointed the Kenyan firm to be its exclusive representative distribution partner for TrinScreen HIV products and kits in the country.
The contract was to last for seven years.
In May 2023, however, Trinity Biotech served Gamma Zenith with a notice of breach of the distributorship agreement.
This was followed by a notice for termination of the deal on June 6.
After the termination, Trinity Biotech went ahead and appointed Radiance Pharmaceutical Limited as its exclusive representative distribution partner for the aforesaid TrinScreen HIV products.
Aggrieved, Gamma Zenith moved to the High Court arguing that the termination of the deal was unjust and without just cause.
The firm listed four respondents in its suit including Trinity Biotech, Radiance Pharmaceuticals, Ministry of Health and the Attorney General.
It said the actions were to its detriment, in breach of several clauses of the Exclusive Distribution Agreement and were in bad faith.
Appearing before Judge Alfred Mabeya, it sought orders restraining Trinity Biotech from appointing any other distribution partner for the promotion, sale and distribution of TrinScreen HIV products.
It also prayed that the court restrains the MoH from procuring and purchasing any TrinScreen HIV products or any other comparable products by Trinity Biotech from any other party.
In objection, however, Radiance Pharmaceuticals said the court lacked jurisdiction over the application and the entire suit.
The same was reiterated by MoH and the Attorney General, who said the court lacked the requisite jurisdiction to hear and determine the suit in its entirety or any accompanying application.
The parties noted that clause 10.8 of the Exclusive Distribution Agreement clause provided that any dispute arising from the said Agreement is to be mandatorily resolved between the parties through arbitration to be conducted in Ireland.
They further argued that there was no contract between the Gamma Zenith and the government, through the Ministry of Health, for any orders to bind the state.
After considering the application and subsequent submissions, Judge Mabeya concluded that the court lacked jurisdiction to determine the application and the suit in its entirety.
He noted that the Exclusive Distribution Agreement provided that any dispute arising from the deal would be resolved through arbitration in Ireland.
Further, if the parties want to seek interim measures of protection, it has to be from the courts of the Republic of Ireland which have exclusive jurisdiction.
"Informed by the forgoing, this Court has no choice but to down its tools as it lacks the jurisdiction to determine the application and the entire suit," Judge Mabeya's judgment on October 6, reads.
It added: "Accordingly, I uphold the objections and strike out the application and suit with costs to the defendants. The interim orders are hereby discharged."