ADVOKS GLOBAL · KENYA
Anti-Counterfeit Act
26. Evidence and presumptions
Edition: 2022-12-31 · In force
26. Evidence and presumptions
(1)Copies of any statement taken down or other documentary evidence procured by an inspector in the course of exercising his powers under this Act, may be made available to a complainant upon an application in the prescribed manner.(2)In any civil proceedings concerning an act of dealing in counterfeit goods by any person, it shall be permissible to present evidence about that person’s conviction or convictions on account of an offence or offences founded on acts of dealing in counterfeit goods.(3)A statement made by an inspector to the effect that the goods specified in the inventory attached to that statement are goods seized by him from a specified person at a specified place and on a specified date shall be prima facie evidence of the facts stated therein concerning the counterfeit goods or any act of dealing therein.(4)Where the subsistence of an intellectual property right in respect of protected goods or any person’s title to or interest in such intellectual property right is in issue in any civil or criminal proceedings concerning counterfeit goods, the substance of, title to or interest in such intellectual property right, where it is alleged to encompass the rights in respect of industrial property as contemplated in the definition of "intellectual property right" in this Act, may be proved in accordance with the provisions of the various industrial property legislation.(5)Where the subsistence of intellectual property right in respect of suspected counterfeit goods or the title or interest in intellectual property right is in issue, the complainant shall be presumed to be the owner of the copyright or the related right or, as the case maybe, the exclusive licensee of any such right, until the contrary is proved.(6)Where a name or mark purporting to be that of the author of a work or the owner of copyright or related rights is either associated with copies of a work or other protected subject matter, or its related packaging, or appears in connection with a work or other protected subject matter, this shall be admissible as evidence of the fact indicated and such evidence shall be presumed to be correct, until the contrary is proved.(7)Subsections (4), (5) and (6) shall not be construed so as to detract from the power of a court, in relation to any such matter or any aspect thereof—(a)to require oral evidence to be given;(b)to order that the evidence of a person who resides or is for the time being outside the area of jurisdiction of the court, be taken by means of interrogatories.(8)Where any person who trades in protected goods featuring, bearing, incorporating or embodying the subject matter of particular intellectual property right is proved to have been found in possession of suspected counterfeit goods to which the subject matter of the same intellectual property right has been applied, it shall, in any civil or criminal proceedings concerning an act of dealing in counterfeit goods found in his possession, be presumed, until the contrary is proved, that such person was in possession of the goods for the purpose of trade if the quantity of those goods is more than that which, in the circumstances, reasonably may be required for his private and domestic use.(9)In any criminal or civil proceedings concerning an act of dealing in counterfeit goods, the evidence of any person in the employment of the intellectual property rights holder or its agent with demonstrable training offered by such intellectual property rights holder or experience in the identification of the intellectual property rights holder's products shall be admissible as expert evidence.