Counsel for the applicant submitted that the exceptions under sections 46 (2) (a) and (b), 46 (3)
(a) and (b), 46 (4), (5), (6) and (7) do not apply to the instant application. He concluded that the
respondent had not had bona fide use of the trademark as demonstrated by his submission.
As regards the third and last issue on the remedies available, counsel for the applicant submitted
that it was evident from sections 45 and 46 of the Trademarks Act that upon meeting the
conditions stipulated therein as the applicant had done, the trademark should be removed from
the register. He prayed that the trademark TECNO should be removed from the register of
Trademarks and costs of the application awarded to the applicant.
Counsel for the respondent in his reply to the submissions opposed the application mainly on
three grounds which he grouped as procedure and evidence; locus standi and ex turpi causa non
oritur action (not benefitting from one’s own wrong).
On procedure and evidence, he contended that given the importance of the subject matter, the
applicant should have filed the claim by an ordinary plaint so that the necessary evidence could
be elicited from the parties orally and recorded to assist court come to a fair determination of the
issues. He further contended that in the alternative, since the applicant chose to adduce evidence
by way of affidavit, and this being an originating application as opposed to an interlocutory one,
the affidavit in support should have been confined to facts as the deponent was able by his own
knowledge to prove as provided under Order 19 rule 3 (1) of the CPR.
He submitted that the applicant was prosecuting this application through an agent and argued that
the attorney is ordinarily not in a position to swear an affidavit based on facts relating to the
applicant’s business, it is not able on its own to prove. He contended that the relationship
between the applicant and the attorney was contractual and so the latter could only know as little
or as much about the applicant’s business as was necessary for carrying out its obligation under
the contract.
He also contended that the attorney was not a natural person but a company which could only act
through its officers like a director/manager and that is why Mr. Weinbig Ruan the deponent of
the affidavit stated that he was the director of the donee of power of attorney. That despite that,
he still stated in paragraph 23 of the affidavit in support and paragraph 12 of the affidavit in
rejoinder that whatever was stated in his affidavit was true and correct to the best of his
knowledge and belief.
He referred to the case of Charles Kabunga v Christopher Baryahura and 3 Others (1995)
KALR 535 where an advocate swore an affidavit in reply on behalf of the 2nd respondent which
touched on the value of the land and it was held that the facts deponed to were not facts in the
knowledge of the advocate.
He contended that in this application, the deponent could only rely on the information supplied
by the applicant’s officials who are well versed with its business operations in Hong Kong. He
submitted that since the deponent had failed to disclose the source of his information or grounds
of his belief, both affidavits were materially defective, null and void. He invited court to find
them so and not to rely on them.