NAIROBI
The High Court has reserved its ruling to 28 May 2026 in a fresh application by Bia Tosha Distributors Limited seeking to stop completion of the proposed Sh300 billion Diageo–Asahi transaction, even after a similar bid was dismissed last month. While Bia Tosha insists a temporary freeze is necessary until the Court of Appeal hears its case, the respondents are fighting back.
Lawyers for EABL, KBL, UDV, and Diageo pushed back strongly, arguing the fresh application is not a narrow holding request, but a renewed attempt to obtain the exact same transaction-freezing orders already rejected by the High Court on 9 April.
The Respondents told the Court that Bia Tosha had already moved to the Court of Appeal and should pursue its relief there.
“This is a classic case of forum shopping,” they argued. “The Applicant elected to go to the Court of Appeal. It must now follow that process.” The defense further faulted Bia Tosha for waiting over three weeks to seek “urgent” protection, essentially asking the Court to treat its own indolence as an emergency.
A major theme of the respondents’ case was the glaring lack of a legal or factual link.
“The shares are not the subject of the petition,” counsel stressed, noting the decade-old case strictly concerns beer distribution routes and alleged goodwill, not Diageo’s ownership. They emphasized that EABL and KBL remain Kenyan operating entities; an upstream change in shareholding does not extinguish their legal obligations or prevent the enforcement of any eventual judgment.
Furthermore, the Respondents argued that even a short injunction would be highly destructive, faulting Bia Tosha for seeking restraint without offering an undertaking as to damages.
“It is not a small thing to put a court order over a Sh300 billion transaction,” they noted, warning that temporary uncertainty in a deal of this scale clouds a major regulated transaction, unsettles investors, and sends the wrong signal to markets watching Kenya’s handling of foreign direct investment.
The highly anticipated ruling on 28 May will be closely watched by corporate Kenya and international investors.
For the Respondents, the matter has evolved beyond a distributor dispute: it is now a critical test of whether private commercial litigation can repeatedly cloud a major cross-border transaction long after the High Court has declined to stop it.
