A judge has declined to issue summons to the Director of Competition Authority of Kenya and the Registrar of Trademarks to testify as expert witnesses before an arbitral tribunal which is handling a trademark dispute between two juice makers — Kevian Kenya Limited (KKL) and Squishy Drinks Limited (SL).
While dismissing an application filed by Squishy Drinks Ltd seeking to compel the expert witnesses to testify in the dispute, Justice Alfred Mabeya said the High Court has no authority to deal with arbitral matters.
The judge also ruled that according to section 28 of the Arbitration Act, Squishy Drinks Ltd had no powers to seek court's help for issuance of witness summons without permission of the arbitration tribunal.
"It is clear from the said provision that, it is the arbitral tribunal which is given the right to request from the High Court assistance in taking evidence. A party can only make such request on the approval of the arbitral tribunal," saidJustice Mabeya.
He explained that the said provision of the law does not give any party a right to seek the compelling of witnesses to give evidence as the Squishy Drinks Ltd had sought.
"There is no evidence that the plaintiff had sought and obtained the approval of the arbitrator. The prayers sought by the plaintiff are not available to it. The application is therefore unmeritorious," stated Justice Mabeya.
Through lawyer Elvis Abenga, the company indicated that the Director of Competition Authority of Kenya and the Registrar of Trade Marks Kenya were alive to the issues before the arbitral tribunal and their opinion would be beneficial to the arbitrator.
It wanted the government officers to testify on its behalf in the trademark dispute, whose subject is a business merger agreement entered by the two companies in October 2018.
The two companies had agreed that the merger would be through consolidation of the manufacturing process and the creation of a new entity which was to be known as Squishy Distribution Limited.
The new entity was for the sale and distribution of the juice, known as SQUISHY a brand that was targeting children.
But SL later sought termination of the merger on ground that Kevian Kenya Limited (KKL) delayed on its part to the agreements, a move that set stage for the current legal battle.