The High Court has ordered Haco Industries Limited, owned by the late businessman Chris Kirubi to refund Mombasa-based tycoon Ashok Doshi Sh15 million that he paid 20 years ago in exchange for non-prosecution over the sale of counterfeit products.
Justice Patrick Otieno said Haco together with French corporation Société Bic, the manufacturers of BIC Biro Pen, ought to return the money because they breached the settlement agreement by pressing criminal charges against Mr Doshi and his company Doshi Iron Mongers Limited.
“Having pressed for the subsequent prosecution in breach of its contractual obligations, I do find that Haco and Société would be unjustly enriched if allowed to keep the money received for the breached agreement. I find that justice demands that they effect a refund of the said consideration,” said the judge.
He also directed Haco and Société to pay Doshi Sh690,800 being the legal fees incurred defending the two criminal cases. In addition, the judge said the amounts will attract interests at court rates (12 percent) from 2006 when the case was filed in court until payment in full.
The evidence adduced in court indicates that on February 20, 2002, the two parties entered into a settlement agreement where Haco and Société Bic expressly agreed to fully discharge Doshi from liability in connection to the counterfeit products. The agreement was witnessed by their respective lawyers.
Mr Doshi’s company had in 1996 found in possession of 176 cartons each containing 72 boxes with each box holding 50 ballpoint pens of Bic ball pens which were allegedly counterfeit and meant to pass off as the products produced and protected by trademark “BIC”.
As a result, Doshi and its directors were arrested and charged with a criminal case but were ultimately acquitted.
After the acquittal, they entered into a settlement agreement in which Doshi contended that the plaintiffs expressly allowed it to keep in its possession the goods that were subject to the criminal case.
Doshi paid them a sum of Sh15 million as compensation on the understanding that the plaintiffs would not lodge a complaint based on the products.
Pursuant to the said settlement agreement, the parties also agreed to refer disputes arising to arbitration.
But Haco and Société Bic breached the said agreement when they instituted criminal charges against Mr Doshi and his company in 1996 and 2002.
Mr Doshi testified that he and his company were charged with the offence of supplying counterfeit goods, which charges were subsequently dropped. BY DAILY NATION