Counsel for the applicant submitted that the exceptions under sections 46 (2) (a) and (b), 46 (3) (a) and (b), 46 (4), (5), (6) and (7) do not apply to the instant application. He concluded that the respondent had not had bona fide use of the trademark as demonstrated by his submission. As regards the third and last issue on the remedies available, counsel for the applicant submitted that it was evident from sections 45 and 46 of the Trademarks Act that upon meeting the conditions stipulated therein as the applicant had done, the trademark should be removed from the register. He prayed that the trademark TECNO should be removed from the register of Trademarks and costs of the application awarded to the applicant. Counsel for the respondent in his reply to the submissions opposed the application mainly on three grounds which he grouped as procedure and evidence; locus standi and ex turpi causa non oritur action (not benefitting from one’s own wrong). On procedure and evidence, he contended that given the importance of the subject matter, the applicant should have filed the claim by an ordinary plaint so that the necessary evidence could be elicited from the parties orally and recorded to assist court come to a fair determination of the issues. He further contended that in the alternative, since the applicant chose to adduce evidence by way of affidavit, and this being an originating application as opposed to an interlocutory one, the affidavit in support should have been confined to facts as the deponent was able by his own knowledge to prove as provided under Order 19 rule 3 (1) of the CPR. He submitted that the applicant was prosecuting this application through an agent and argued that the attorney is ordinarily not in a position to swear an affidavit based on facts relating to the applicant’s business, it is not able on its own to prove. He contended that the relationship between the applicant and the attorney was contractual and so the latter could only know as little or as much about the applicant’s business as was necessary for carrying out its obligation under the contract. He also contended that the attorney was not a natural person but a company which could only act through its officers like a director/manager and that is why Mr. Weinbig Ruan the deponent of the affidavit stated that he was the director of the donee of power of attorney. That despite that, he still stated in paragraph 23 of the affidavit in support and paragraph 12 of the affidavit in rejoinder that whatever was stated in his affidavit was true and correct to the best of his knowledge and belief. He referred to the case of Charles Kabunga v Christopher Baryahura and 3 Others (1995) KALR 535 where an advocate swore an affidavit in reply on behalf of the 2nd respondent which touched on the value of the land and it was held that the facts deponed to were not facts in the knowledge of the advocate. He contended that in this application, the deponent could only rely on the information supplied by the applicant’s officials who are well versed with its business operations in Hong Kong. He submitted that since the deponent had failed to disclose the source of his information or grounds of his belief, both affidavits were materially defective, null and void. He invited court to find them so and not to rely on them.