The repeated legal challenges facing the EABL–Asahi deal raise important questions about how commercial disputes are managed in Kenya
The debate triggered by Senior Counsel Ahmednasir Abdullahi’s recent remarks that the EABL-Asahi deal will continue to be frustrated in the courts unless a bribe is given triggers a conversation that extends far beyond the EABL–Asahi transaction.
At stake is a broader question about whether Kenya’s legal system is capable of providing certainty in high-value commercial transactions, or whether prolonged litigation is becoming an increasingly effective tool for frustrating deals long after key issues have been litigated.
A Deal That Refuses to Move On
The proposed acquisition of EABL by Japan’s Asahi Group is one of the largest corporate transactions in Kenya’s history.Yet instead of being remembered as a landmark investment, the deal has increasingly become associated with repeated court applications, injunctions and legal obstacles.
The concern is not that parties are exercising their right to seek justice. That right is fundamental.
The concern is whether a transaction can ever achieve finality if new challenges continue to emerge after courts have already addressed earlier objections.
Lawyer Ahmednasir’s Provocative Question
Ahmednasir’s public comments struck a nerve because they touched on a frustration many investors rarely express publicly. His open admission that bribery has become a motivation for litigation sets Kenya many decades back.
When major deals become trapped in recurring litigation, questions naturally arise about whether the legal process is being used solely to resolve disputes or whether delay itself becomes part of the strategy.
Whether one agrees with his assessment is beside the point.
The fact that such concerns are being openly discussed by senior members of the legal profession should concern anyone interested in Kenya’s investment climate.
Justice Mong’are Under the Spotlight
The controversy has also drawn attention to Justice Josephine Mong’are, who has become a subject of public debate among sections of the legal fraternity.
Former Law Society of Kenya President Nelson Havi has been among those who have publicly questioned her continued service on the bench and called for greater scrutiny of matters associated with her.In the EABL-Asahi case, Justice Mong’are pulled a shocker by ordering an injuncting in Machakos, for a matter that was being adjudicated in Nairobi; giving all the signs of vested interests.
The Cost of Endless Uncertainty
Investors can tolerate legal disputes, but would obviously have a problem tolerating uncertainty without end.
Every delay, injunction and procedural battle sends a signal to the market. Fairly or unfairly, prolonged uncertainty can create the impression that major transactions are vulnerable to endless disruption.
That is a perception Kenya can not afford. The EABL–Asahi saga should prompt a broader conversation about how the country balances access to justice with the need for commercial certainty.
A modern economy requires both, and neither should come at the expense of the other.
