"Where the evidence upon the record is sufficient to enable the High Court to pronounce
judgment, the High Court may, after resettling the issues, if necessary, finally determine
the suit, notwithstanding that the judgment of the court from whose decree the appeal is
preferred has proceeded only upon some ground other than that on which the High Court
proceeds.
The rules enact the same principles in Selle and another v Associated Motor Boat Company
Ltd and others [1968] 1 EA, Peters v Sunday Post Limited [1958] 1 EA 424 as well as the
English authorities in King versus Thompson [1914] 2 KB 99, John Harris (1910) Criminal
Appeal Cases page 285 and William Robert Powell (1921) Criminal Appeal Cases, 23.
In the premises if there is some material on the record to determine the appeal on the merits
irrespective of the grounds argued, it is in the interest of justice that the High Court should
finally determine the issue of objection to the trademark conclusively even if the parties had not
referred to the materials on court record.
In the premises I now proceed to determine the appeal taking into account the grounds of the
notice of motion, and the submissions of Counsel as well as the law the pleadings before the
Registrar and the evidence on record. In order to proceed on the basis of a systematic
understanding of the issues in the appeal I will first consider the evidence and conclusions of the
Registrar before resolving the issues. Secondly I will not follow the same order in which the
grounds of appeal were presented or argued and will consider the grounds as they arise in the
flow of my own findings.
The background to this appeal is sourced from the record of appeal and is that the Appellant is
Nairobi Java House Ltd and its application for registration of the trademark "Java house" and
"Java Sun" as well as "Nairobi Java house Coffee & Tea " were disallowed by the Registrar of
Trademarks hence this appeal. The Appellant established by affidavit that it had used the word
"Java" in Kenya and seeks to expand its business into Uganda. The Applicant‘s effort to expand
its business included the application to register the above trademarks which were successfully
challenged by the Respondent. Emphasis on the word ―Java‖ is the basis of the decision of the
lower tribunal that it was the standout word upon which the trademarks sought to distinguish.