Milimani Law Courts/FILE
The High Court has dismissed an application by Bia Tosha Distributors Limited seeking to stop the completion of a proposed transaction involving East African Breweries Limited (EABL), Diageo and Asahi Group Holdings pending the determination of proceedings before the Court of Appeal.
In its ruling delivered on Tuesday, the court held that Bia Tosha had already elected to pursue similar relief before the Court of Appeal and could not return to the High Court seeking the same orders.
The judge warned that allowing the application would undermine the hierarchy of courts and potentially lead to conflicting decisions.
“Having chosen to move to the Court of Appeal in an attempt to obtain relief, the petitioner cannot now return to this court seeking similar orders. Such a course would not be respectful to the hierarchy of courts and may embarrass the judicial system,” the court ruled.
The judge further noted that the issues raised in the application are already before the appellate court and therefore cannot be determined simultaneously by the High Court.
During submissions, lawyers representing EABL, Kenya Breweries Limited and other respondents argued that the dispute over local distribution arrangements and an alleged Sh38 million goodwill claim had no legal or factual connection to the proposed share transfer transaction involving Diageo and Asahi.
“There is no legal or factual connection between the distribution dispute and the transfer of EABL shares,” counsel for the respondents told the court.
The companies also pointed out that a similar application had been dismissed by the High Court on April 9, adding that Bia Tosha subsequently moved to the Court of Appeal before filing another application in the High Court seeking interim relief.
The respondents further argued that the transaction involves significant investor interests and that any delay could have wider implications for shareholders and the market.
“It is concerning that a transaction of this scale could be affected before the main dispute is heard and determined,” one of the lawyers submitted.
The companies maintained that they are financially capable of meeting any obligations that may arise should Bia Tosha succeed in its substantive claim.
“We are established corporate entities and capable of satisfying any lawful award that may ultimately be made by the court,” counsel submitted.
The respondents urged the court to allow the transaction to proceed while the substantive dispute continues.
The case continues to attract attention from investors and market analysts due to its potential impact on a major corporate transaction.
Over the years, the matter has generated numerous filings, including a Further Amended Petition filed by Bia Tosha in January 2026 seeking to block the Diageo-Asahi transaction through an injunction and introducing a Sh45 billion claim.
