NAIROBI, Kenya — The Court of Appeal has affirmed the powers of the Anti-Counterfeit Authority (ACA) to search business premises, seize suspected counterfeit goods and arrest suspects, ruling that such enforcement actions do not automatically amount to violations of constitutional rights.
In a landmark judgment, the appellate court held that ACA enforcement officers acting on reasonable suspicion and in accordance with the Constitution and the Anti-Counterfeit Act are lawfully exercising their statutory mandate.
The ruling arose from a case in which the Authority raided a business premises, seized goods suspected to be counterfeit and arrested the proprietor before criminal charges were filed.
Although the High Court had awarded the trader Sh500,000 in damages for alleged violation of constitutional rights, the Court of Appeal overturned that decision, finding that the enforcement action, by itself, did not constitute a constitutional breach.
Lawful Enforcement Backed
The judges held that the Anti-Counterfeit Authority’s statutory powers remain valid provided officers comply with constitutional safeguards and the procedures set out under the Anti-Counterfeit Act.
The court clarified that businesses challenging enforcement operations must demonstrate that officers acted unlawfully, abused their powers or failed to follow due process, rather than relying solely on the fact that goods were seized or arrests were made.
The judgment is expected to strengthen the Authority’s legal mandate to conduct inspections and enforcement operations targeting counterfeit goods across the country.
Implications for Businesses
The decision is likely to have far-reaching implications for wholesalers, retailers, importers and distributors, who may now face greater scrutiny during anti-counterfeit operations.
It also reinforces the Authority’s ability to investigate suspected counterfeit goods without requiring a court order before conducting searches, provided officers comply with the requirements of the law.
The ruling comes weeks after the Anti-Counterfeit Authority announced a nationwide crackdown on counterfeit products amid growing concern over the circulation of fake goods in Kenyan markets.
At the time, the Authority stated that its inspectors are legally empowered under the Anti-Counterfeit Act, 2008, to enter business premises, conduct searches and seize suspected counterfeit goods where there are lawful grounds to do so.
Consumer Protection
The Anti-Counterfeit Authority has consistently maintained that counterfeit products undermine legitimate businesses, reduce government revenue and expose consumers to unsafe and substandard goods.
While affirming the Authority’s enforcement powers, the Court of Appeal also underscored that constitutional protections remain in force.
The judges noted that businesses and individuals retain the right to challenge enforcement actions where officers exceed their legal authority, violate constitutional rights or fail to observe due process.
