On 1 August 2011, the Kenya Standard newspaper reported that the
Kenya Shippers Council (KSC) have a cunning plan to reduce to three
days, the time taken to clear imported goods through the Port of
Mombasa. Also known as Kilindini, that port serves land-locked
neighbours as well as Kenya and is second only to Durban on the
east African range. It is actually my home town and the news
snippet conjured back the sun, ships and stevedores, the cargoes,
cranes and customs sheds among which I sweated before joining the
law. What has all that got to do with intellectual property, I
The IP connection is there nevertheless and in a case where it
applies, it will defeat the best efforts of the KSC to get an
incoming consignment from ship to consignee in three days.
The Anti-Counterfeit Act of Kenya was officially brought into
force on 7 July 2009. It has not met with nationwide approval,
because many believe that it impedes access to affordable medicines
for malaria, HIV/AIDS and their deadly sisters. Despite such
opposition the Act is being actively enforced by the
Anti-Counterfeit Agency (ACA). ACA functions under the aegis of the
Ministry of Industrialization, as does the Kenya Industrial
Property Institute. The primary purpose of the Act is to prohibit
trade in counterfeit goods. Counterfeiting is defined as performing
any of a range of unlawful acts, in contravention of intellectual
property rights extant under the Trade Marks Act, the Industrial
Property Act (relating to patents, utility models and industrial
designs), the Copyright Act or the Seeds and Plant Varieties
Whilst the mainstream functions of the Anti-Counterfeit Act are
performed by inspectors within the ACA, section 34 gives a parallel
entitlement to the proprietor of an intellectual property right to
apply to the Commissioner, an official responsible under the Kenya
Revenue Authority Act to administer and enforce the customs laws
If the applicant has valid grounds for suspecting that the
importation of counterfeit goods may take place, he may request the
Commissioner to seize and detain all suspected counterfeit goods
featuring, bearing, embodying or incorporating the subject matter
of that intellectual property right or to which the subject matter
of that right has been applied, imported into or entering Kenya
during the period stated in the application. The application should
be supported with evidence of the applicant's title, a specimen
of the goods and other information sufficient for the Commissioner
to consider it.
If satisfied, the Commissioner may order the seizure and
detention of the goods stipulated in the application, under the
East African Community Customs Management Act 2004 which will
control the operation. The latter Act provides among other things,
for notices to owners; retention of seized items pending court
proceedings; and for their release. But once the Anti-Counterfeit
Act and the Commissioner have been invoked, the three-day KSC time
scale will have ceased to apply.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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