WORLD TRADE
ORGANIZATIONIP/C/W/294/Add.2
13 May 2003
(03-2531)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Response from Kenya to a question posed by Switzerland
Addendum
By means of a communication from the Permanent Mission of Kenya dated, 18 April 2003,
the Secretariat has received the following respons e to a follow-up question posed by Switzerland, as
circulated in document IP/C/W/263/Add.1.1
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A. E NFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Additional response to question 7:
Please explain how the special requirements related to border measures of Articles 51 to
60 of the TRIPS Agreement are implemented in your legislation.
Note:  Border Measures of Articles 51 to 60 of the TRIPS Agreement are provided for by
various Laws of Kenya including those on customs and excise, and intellectual property rights.  Some
of these legislations are undergoing necessary amendments to further address issues of infringement
of intellectual property rights.  At present, the situation in Kenya is as follows:
(a) Article 51:  Suspension of Release by Customs Authorities
It is possible to suspend release into free circulation any goods of a physical nature.
However, it is not possible to suspend release of goods transmitted electronically or via satellite.
Imports of goods put on the market of another country by or with the consent of the right holder
would still be treated in the same way as infringing goods provided that the aggrieved party applies
for suspension of release of the same.
Goods in transit and Deminimis imports would not be subject to suspension of release.  These
procedures also apply to exports from Kenya.
(b) Article 52:  Application for Suspension
For release of goods to be suspended, an application has to be made to the Commissioner of
Customs & Excise by the right holder giving evidence of the existence of a patent, trademark,
copyright etc.  He should also be able to prove to the Authority that he is the registered right holder.
                                                     
1 Kenya's responses to all other follow-up questions posed by Switzerland have been circulated in
document IP/C/W/294/Add.1.IP/C/W/294/Add.2
Page 2
(c) Article 53:  Security or Equivalent Assurance
Provision/regulation for granting of security or guarantee to cover the defendant or the
Commissioner of Customs & Excise is being considered.
(d) Article 54:  Notice of Suspension
As soon as the right holder notifies that infringing goods have been imported, and evidence to
that effect given, the importer will be notified - as soon as he lodges the documents for processing -
that release of the goods has been suspended.  Importers are given 21 days within which to clear their
goods.
However, provision governing the length and cost of the proceedings and requiring that the
competent authority, notify the applicant of the accepta nce of his application to suspend release of the
goods, are being put in place.
(e) Article55:  Duration of suspension
Once a decision has been made, it remains valid until over-ruled by a subsequent decision.
The applicant/party has a right to initiate proceedings , in court, on the merits that will allow customs
authorities to hold the goods beyond the ten working days.
The logical forum that would be authorized to review and determine if the suspension
measures should be modified, revoked, or confir med pending the outcome of the proceeding on the
merits will be the Commissioner of Customs & Excise.
(f) Article 56:  Indemnification of the Importer and of the owner of the goods
Provisions/regulations enabling ordering the applicant to indemnify the importer, the
consignee, and the owner of the goods are being addressed.
(g) Article 57:  Right of Inspection and Information
Provisions are being put in place to enable th e competent authority to fully give the right
holder, or importer, or exporter sufficient opportunity to have any goods detained by the customs
authorities inspected in order to substantiate respective claims.
(h) Article 58:  Ex Officio Action
Provisions/regulations for ex officio action are being considered.
(i) Article 59:  Remedies
The remedies include penalties, forfeitures, destruction or disposal and seizure.
(j) Article 60:  De Minis Imports
Exclusion from suspension for de minis imports is possible through the discretion of the
proper customs officer.IP/C/W/294/Add.2
Page 3
(k) Article 61:  Criminal Proceedings
Wilful infringement of intellectual property rights are subject to criminal procedures and
penalties, with remedies of imprisonment and/or monetary fines sufficient to prevent a deterrent as
well as seizure, forfeiture and destruction of infringing goods and applicable equipment.
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