Court has set free a business man charged with being in possession of counterfeit goods and making counterfeit goods.Mukinyi Mwakavi who is a director of Wincop Services Limited, were, together with his company, charged with two counts of having in their possession various counterfeit goods and items worth KShs 9,790,509 in the course of trade contrary to section 32 (h) as read with section section 35 (1)(a) of the Anti Counterfeit Act No 13 of 2008. The two were also charged with making counterfeit goods worth KShs 4,052,340 in the course of trade without the authority contrary to section 32(b) as read with Section 35)1)(a) of the Anti-Counterfeit Act No 13 of 2008 Laws of Kenya.
According to the evidence in court, the businessman owns shops along Tsavo Road in Nairobi CBD is a dealer and supplier of Hewlet Packard products including toners and cartridges. In the case he was represented by Nairobi lawyer John Ochieng Ogada together with Beth Njeru while Mr Makofu and Miss Nyawira appeared for the Anti Counterfeit Agency.
The prosecution case was that Anti Counterfeit officers, together with of Halliday Finch who are representatives of Hewlet Packard raided the shops of the accused and recovered several counterfeit goods containing Hewlet Packard brands and tools for making the same. They seized the goods and ferried them in lorries to their depot at Kyangombe. They later arrested the accused.
In her judgment the Chief Magistrate Shitubi noted some of the goods allegedly recovered were not brought to the court as well as the samples which had tested. The prosecution witnesses had admitted during cross examination by Mr Ogada that the exhibits they took for the purpose of testing to establish whether the goods were counterfeit had been disposed of before being brought to court.
It transpired that all the goods seized which were to be exhibits in the case were initially stored at the Anti Counterfeit Agency depot Kyangombe but were later moved to a store in Athi River.
Lawyer John Ogada had asked the prosecution to produce the record of the movement of exhibits from Kyangombe to Athi River but they failed to produce it. Ogada submitted that the evidence showed that there had been tampering with the seized goods and the chain of custody of the exhibits could also not be proved.
The magistrate found that many of the exhibits had been interfered with and many disappeared by the time they were being produced in court thereby making the integrity of the whole prosecution process questionable. The court however ordered that the seized goods be forfeited.
The Court having found that the charges them had not been proved beyond reasonable doubt, acquitted both the businessman.
