Agency bosses face contempt charges in war against fakes

Top officials of the Anti-Counterfeit Agency (ACA) are facing contempt charges over the detention of two containers suspected to be holding counterfeit solar products impounded in Mombasa in the ongoing war on illicit trade.

The two 45-foot containers shipped from China were impounded by the authorities after a tip-off from the local agents of the brand it was reportedly infringing, sparking a dramatic court battle which is now turning to haunt the State officials.

RELOCATED

The consignment, in two containers number TTNU9962322 and DRYU4535826 according to import documents, was shipped in by Uwin Investments Africa Company Limited, which has gone to court seeking to have them released.

An order issued by High Court Judge Eric Ogola on September 19 granting the firm’s prayers to have their containers either relocated to ACA depots or have them released was amended to expressly grant them a release even before the case is heard.

COUNTERPRODUCTIVE

“Reference to paragraph 12-16 of yesterday’s order is hereby corrected by deleting No. 16 and inserting instead No. 15. The final order to read that I hereby allow the leave granted herein to operate as stay in terms of prayers 12-15,” Justice Ogola wrote on September 20.

The deleted prayer 16 was ACA’s only recourse to holding the containers as the case progressed in court hence its omission, according to court filings by the agency, would make the whole process counterproductive.

AFFIDAVIT

Mr Yan Mei Liu, said to be a well-connected businessman, has put the agency under intense pressure and is now pressing for contempt charges against its officials who have in a replying affidavit protested the man's manoeuvres that may render the case a futile exercise as it proceeds with the goods already released.

As late as last Friday, the agency was seeking help from Trade Cabinet Secretary Peter Munya through a brief on the case that casts a spotlight on the headwinds facing the ongoing crackdown on illicit trade under the multi-agency framework headed by Deputy Head of Public Service Wanyama Musiambo.

CRIMINAL

Apart from protesting the change of order to grant the release of the confiscated goods without engaging both parties, ACA lawyers argue that there will be no need to have a criminal case proceed when the subject exhibits are already released to the accused persons.

“If stay is not granted, the counterfeit goods in the aforesaid containers will be released to the ex-parte applicant and the subject matter of these proceedings and the pending criminal proceedings before the subordinate court will be lost forever and render these proceedings vain and futile,” ACA lawyer and Deputy Director of Enforcement wrote in an application dated September 24.

The application, which was first given a date to be heard on October 10, which turned out to be a holiday is now set for November 24.

OWNERSHIP

However, tomorrow’s date to hear out an application by the importer to have ACA officials cited for contempt presents an odd situation in the case since the same order to have the goods released is in contention before the judge and a date already set for it.

A search on the company reveal ownership by a Mr Osman Nur Anfar, adding to the twist of how the importer whose trade mark on GDLITE had been expunged by the Registrar of Trade Mark, also had a separate PIN for the company.

INTELLIGENCE

Apart from filing to have the State agency denied audience in court, the firm also wants ACA to deposit Sh31 million as the value of the goods in the two containers in the event that they are damaged by the heat and humidity in Mombasa.

The contested GDLITE brand is said to be owned by Chinese-based Zhengzheng Electric Appliance Company Limited and the firm is said to have had intelligence that an imitation of its products were being produced in mass to be shipped to Kenya when it alerted the local authorities who impounded the shipment.

SH30 BILLION

In May, President Uhuru Kenyatta told parliament that Kenya loses over Sh30 billion in revenue annually as a result of tax evasion, counterfeiting and unlicensed products. A multi-agency team comprising the Kenya Revenue Authority, Kenya Police, Kenya Bureau of Standards and ACA has been conducting crackdowns in the past three months aimed at eradicating the illicit trade of goods mainly from China.

Mr Kenyatta led a team of officials in destroying impounded contraband goods worth billions on August 30.