Stiff penalties await dealers in counterfeit goods in Kenya once a new law on counterfeits is enacted.
The Counterfeit Goods Bill, prepared jointly by the Anti- Counterfeiting Division of the Ministry of Trade and Industry and the Kenya industrial property institute, prescribes a fine not exceeding Ksh5,000 ($64) per article or item or a prison term not exceeding three years or both.
In the case of a second and any subsequent conviction, the draft counterfeit document, which is currently under discussion by various stakeholders, recommends that the culprit be fined Ksh10,000 ($128) per article or item, or be imprisoned for a period not exceeding five years, or face both fine and imprisonment.
But that is not all. The draft document also proposes that a court that has convicted a person of a counterfeiting offence will, when considering which penalty to impose, take into account any risk to human or animal life, health or safety or danger to property (whether movable or immovable) that may arise from the use of the counterfeit goods in question.
"Without detracting from the discretion that a court in criminal proceedings has with regard to sentencing, a court that has convicted any person of a counterfeiting offence may take into account the source of the counterfeit goods involved in the commission of the offence, the identity of the persons involved in the importation, exportation, manufacture, production or making of those counterfeit goods, the identity and the addresses or whereabouts of the persons involved in the distribution of those goods and the channels of distribution of those goods," it says.
Currently, no act in Kenya deals specifically with the counterfeit issue. Different laws are being applied in the anti- counterfeit war, with the Attorney General’s chambers, Kenya Bureau of Standards and Kenya Revenue Authority all pooling resources, but creating considerable confusion in the process.
The draft document is the first deliberate attempt by stakeholders to work out a legal framework that will legitimize the war on counterfeits and bring it under one roof.
It also proposes that the Minister of Trade and Industry be given wide discretionary powers, which among others will involve increasing the amounts of fines via Kenya gazette notices. It also wants the Minister to be given powers to appoint or designate inspectors.
The Minister, by notice in the gazette, may from time to time designate any place defined in the notice to be a counterfeit goods depot, and may also amend or withdraw such a notice at any time. He must, in respect of a counterfeit goods depot, appoint any " fit and proper person" to be in charge of such depot.
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