Milimani Senior Principal Magistrate Theresa Nyangena has ruled that the electronic equipment were mishandled by the police so much, that it made the prosecution of the businessman untenable.
“The prosecution has not shown by evidence that the items seized from Kimani’s houses were counterfeit and that they were found in his possession. The court finds that a case has not been made out against him sufficiently to require him to make a defence. The case against him is dismissed and he is hereby discharged forthwith,” Nyangena said.
It remained a mystery how the search was conducted and the goods identified for seizure since the prosecution chose not to call any of the APs, she pointed out and directed that the consignment should be released to Kimani.
“The court finds the seizure was illegal due to failure by the AP officers to follow mandatory procedures sanctioned by law. The court finds there was carelessness and negligence on the part of the investigating officer, Inspector Casper Oluoch in execution of his duties as provided by the Anti-Counterfeit Act,” the magistrate noted in the 40-page ruling.
She said Inspector Oluoch had admitted, during cross-examination by defence lawyer John Ogada, that the suspected illegal imports were not sealed before being carted away from Kimani’s upmarket Loresho and Avenue Park Estate homes. Further, no independent analysis was conducted to confirm the goods were fake, she said.
The chain of the custody of the goods under the ACA was irretrievably broken and compromised the identification of the goods that comprised electronic products, electric bulbs, welding roads, ball point pens and Olive oil, the Magistrate said. Further, Kimani was not furnished with a comprehensive inventory of the seized goods within five days as required by law, the court upheld Ogada’s arguments.
The goods had been confiscated and taken to the agency’s go-downs at Kyang’ombe between June 9 and 12, 2015, after the highly-publicized raid led by acting ACA Executive Director John Akoten. They were later moved to an unknown destination without any official record.
During the trial, Oluoch had conceded that the raiding party did not comply with Section 25 (1) of the Anti-Counterfeit Act which makes it a mandatory requirement that all goods that are seized must be sealed or marked appropriately for identification.
He could not vouch for the authenticity of the inventory report by the agency’s depot manager that showed that the goods seized on June 12, 2015, were received the previous day. He said he never made an inventory of the goods that were kept in various stores.
Oluoch had said it was apparent there were vested interests by several government and security officers and he was unable to secure the goods shortly after the agency’s team stormed the Loresho home.
He had denied being an expert in counterfeit goods and claimed the agency relies on evidence provided by complainants, manufacturers or owners of goods whose Intellectual Property rights had allegedly been infringed.
According to a counterfeit prosecutor who spoke to Nairobi TIMES but sought his identity not to be made public, said many of the agencies cases are being dismissed.
He said a similar case was dismissed by a Mombasa court. Counterfeit legal department after going through the judgement, they served DPP with a notice to appeal trial court decision.
