REPUBLIC OF KENYA

IN THE INDUSTRIAL PROPERTY TRIBUNAL

AT NAIROBI

IPT CASE NO.72 OF 2016

IN THE MATTER OF INDUSTRIAL DESIGN NO 1327 &1328

BETWEEN

CITY CLOCK (KENYA) LTD.......................................................APPLICANT

VS

PAUL MUIMI MUTEMI......................................................1^ST RESPONDENT

BONIFACE MUAGE KITIVO............................................2^ND RESPONDENT

RULING

1. This suit was fixed for further hearing of the respondents’ case by consent of the parties on 1^st August, 2019. When the matter was called out this morning, counsel for the Requestor indicated that she was ready to proceed with the hearing. Mr. Stanley Kinyanjui counsel holding brief for Mr. Mbuthia for the respondents indicated that Mr. Mbuthia was not ready to proceed with hearing of the Respondents case and applied for an adjournment on grounds that;

a) First, Mr. Mbuthia was not available to attend to today’s hearing as he was attending to ELC case no. 43/2019 at the chief Magistrate court at Nyahururu which was filed under a certificate of urgency by the firm of Mbuthia Kinyanjui on 4^thSeptember, 2019. Counsel holding brief today informed us that the matter in Nyahururu was filed under a certificate of urgency and he attended the court in Nyahururu on 4^thSeptember, 2019; when the matter came up for hearing of the application for injunction in the first instance. The matter was certified urgent and granted today’s date for inter-partes hearing. He stated that he informed Mr. Mbuthia Kinyanjui of the matter in Nyahururu late yesterday and Mr. Mbuthia chose to attend to it because he is personally interested in the matter as he has a personal interest. Asked why Mr. Mbuthia did not make arrangement for alternative representation from his firm in the instant case; Counsel responded that the matter was voluminous and had to be dealt with by Mr. Mbuthia personally.

b) Secondly, counsel argued that the 1^st Respondent was away in his rural home attending to a personal emergency, the nature of which was not disclosed and for that reason was not available to give evidence.

2. The application was opposed on grounds that the date was taken in court by consent on 1^stAugust, 2019 and the date of 12^thSeptember, 2019 was taken from a list of convenient dates that were available to counsel for the respondents. She argued that the reasons given for the adjournment were no legitimate or genuine reasons because when Mr. Mbuthia called her a few minutes to 9.00 am today, he indicated that he was attending to  a High Court matter in Nyahururu and she should know  that the High Court took precedence over this Tribunal and it was only when she pointed out  that the ELC court in Nyahururu is on vacation that they now changed tune and said that the matter is in the lower court but he has a personal interest in the matter.

3. She also asserted that the Respondents were not in court yet cases belong to the parties and no good reasons have been given to explain their absence. The only explanation given was in respect of the 1^st Respondent who is said to be away in his rural home attending to personal emergency whose nature was not disclosed. She urged us to dismiss the application for adjournment and order the Respondents’ counsel to either proceed with or close the Respondents case. She acknowledged that whether to grant or refuse an adjournment is at the discretion of the Tribunal and argued that in the event that we exercised, discretion in favour of the respondents we should grant it on terms that the respondents pay the costs of the day and grant an early date considering that the matter is an old one and has been adjourned previously at the instance of the Respondents.

4. In response, counsel for the respondents stated that the reasons given for adjournment are legitimate. He opposed any award of costs on grounds that the Respondents’ counsel had given notice of absence to the advocate for the Requestor before 8.30 am today. He also said that the authority relied on by the requestor (to support the argument that cases belong to the parties, i.e. Savings & Loans Hd Vs Susan Wanjiru HCCC No.397/2002 a decision made by the Hon. Justice Kimaru) has no bearing on the matter before court as it is based on different facts and there had been no previous applications for adjournment by the Respondents on the occasion of a hearing.

5. Having considered the arguments by the advocates for the parties for and against the grant of the application for adjournment; we are not persuaded that an adjournment is warranted in the circumstances of this case where the hearing date was taken in court by consent and the advocate having the conduct of the matter elected to attend to a matter in Nyahururu whose date was taken subsequently on 4^thSeptember, 2019 by Mr. Stanley Kinyanjui a counsel from his firm and then fail to brief the advocate holding brief to attend and proceed with the respondents case today. It is indeed not clear why Mr. Mbuthia would not allow his colleague Mr. Stanley Kinyanjui to attend the matter in Nyahururu yet he is the one who attended court on 4^th September, 2019 and took a date for hearing of the application for injunction inter-partes.

6. Secondly, we agree that cases belong to the parties and no plausible, or reasonable and compelling reasons have been given for the failure of both Respondents to attend court today.

7. We are not satisfied with the explanation given in respect of the 1^st Respondent’s absence, whom we were merely told was away in his rural home attending to an emergency whose nature is unknown. We do not think that is a good basis upon which a Judicial Tribunal can exercise its discretion to adjourn the hearing; in favour of the Respondents. Indeed, no explanation at all was given in respect of the 2^nd Respondent’s absence.

8. We note that this is an old matter which has been pending before the Tribunal since the year 2016. It has been adjourned on a number of occasions in the past to enable the Respondents file their written response and counter-statement which are now on record and it is in the interest of justice that this matter proceeds for further hearing and is brought to a conclusion without delay.

9.  Accordingly, we dismiss the Respondents’ application for adjournment and direct that the Respondents’ case proceeds for hearing.

Dated and delivered in open court this 12th day of September, 2019.

Signed:

Brown M. Kairaria    -  Chairman

Wycliffe Swanya    -  Member

Pauline Mudeshi    -  Member

Brettah Muthuri     -  Member

In the presence of:-

Mrs. Scola Kayugira for the Applicant

Mr. Stanley Kinyanjui for Mr. Mbuthia Kinyanjui for the Respondents.