By Benadeta Mwaura - Reporter
Kenya, July 28, 2026 - The Court of Appeal has delivered a landmark judgment strengthening the powers of Kenya's Anti-Counterfeit Authority (ACA), ruling that the agency can lawfully search business premises, seize suspected counterfeit goods and arrest suspects without automatically infringing constitutional rights, provided officers act within the law.
The decision overturns an earlier High Court ruling that had awarded a trader KSh500,000 in damages after the ACA raided his premises, confiscated goods suspected to be counterfeit and arrested him before charges were filed.
The appellate court found that the Authority's enforcement actions, when undertaken on reasonable suspicion and in accordance with the Constitution and the Anti-Counterfeit Act, 2008, do not in themselves amount to violations of constitutional rights.
In the judgment, the Court held that enforcement officers exercising statutory powers under the Anti-Counterfeit Act are legally permitted to conduct searches, seize suspected counterfeit products and make arrests, as long as they comply with constitutional safeguards and prescribed legal procedures.
The judges noted that businesses challenging such operations must demonstrate that officers acted unlawfully or failed to observe due process, rather than relying solely on the fact that a raid or seizure occurred.
The ruling is expected to significantly strengthen the ACA's enforcement mandate, particularly as the agency intensifies nationwide efforts to curb counterfeit trade, which continues to cost legitimate businesses billions of shillings annually while exposing consumers to unsafe and substandard products.
It also provides greater legal certainty for inspectors carrying out compliance operations targeting wholesalers, retailers, importers and distributors suspected of dealing in fake goods.
The judgment comes weeks after the Anti-Counterfeit Authority announced a nationwide crackdown on counterfeit products, clarifying that its inspectors are empowered under the Anti-Counterfeit Act to enter business premises, conduct inspections and seize suspected counterfeit goods without first obtaining a court order, provided they follow the law.
At the time, the Authority emphasized that its mandate is directed exclusively at unlawful trade and does not target legitimate businesses.
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"It is critical to emphasise that the Anti-Counterfeit Authority does not interfere with legitimate business operations. ACA's enforcement activities are directed exclusively at unlawful trade in counterfeit goods," the Authority said.
The Authority has consistently defined counterfeit goods as products deliberately manufactured, packaged or sold to imitate genuine brands without the authorization of intellectual property owners.
According to ACA, counterfeit trade undermines innovation, erodes consumer confidence, reduces government tax revenues and threatens public health through the circulation of unsafe products, particularly in sectors such as pharmaceuticals, foodstuffs, cosmetics, electronics and automotive spare parts.
Legal analysts say the Court of Appeal's decision provides greater clarity on the balance between protecting constitutional rights and enforcing intellectual property laws.
While businesses retain the right to challenge unlawful searches, seizures or arrests, the ruling affirms that lawful enforcement actions undertaken in compliance with the Constitution should not automatically attract constitutional damages.
For businesses, the judgment underscores the importance of maintaining proper documentation, sourcing products through authorized supply chains and complying with intellectual property laws, as enforcement agencies now have stronger judicial backing to investigate suspected counterfeit trade.