Legal battle between EABL, Bia Tosha heads to Supreme Court


Legal battle between EABL, Bia Tosha heads to Supreme Court

The court tussle between EABL and Bia Tosha might not end anytime soon even with business between the two remaining stagnant. This is after a three-Judge-bench of the Appeal Court temporarily suspended the case hearing following successful application by Bia Tosha advocates.

The three Judges, Roselyn Nambuye, Kathurima M’Inoti and Philip Waki (the Presiding Judge), had to adjourn the matter to give way to the Supreme Court to hear and determine a petition by Bia Tosha filed under certificate of urgency, and has since been certified as urgent and to be heard expeditiously by a bench of Supreme Court Judges which the Chief Justice is yet to constitute.

Bia Tosha, through Okoth and Kiplagat Advocates, petitioned the Supreme Court to object to the decision by the Appeal Court that had directed that main appeal by EABL be heard first before hearing a contempt of court application by Bia Tosha against KBL.

In its certificate of urgency to the Supreme Court, Bia Tosha through its advocates are questioning the conduct of the Court of Appeal in suppressing investigation into an alleged disobedience of more than one court orders by KBL.

In her supporting affidavit before the Supreme Court, Anne-Marie Burugu, the Managing Director of Bia Tosha Distributors Limited states that all courts in Kenya adopted a consistent position, that where a contempt of court order is alleged, the contempt must be dealt with at once and all matters suspended until it is established whether or not there has been a violation of the said court order.

Bia Tosha is apprehensive that the decision by the appeal Judges will have the effect of completely eroding the legitimacy of Court orders.

“The Court of Appeal ruling establishes that there are two parallel justice systems in Kenya: one for the rich and the other for the poor. That moneyed and privileged persons and multinationals need not to obey court orders but less powerful persons, (as shown in the recent jailing of doctors officials) must suffer untold integrity if they should dare disobey a court order,” continued Anne-Marie.

Bia Tosha want the Supreme Court to direct that the Appeal Court to first hear the contempt of court application before proceeding to hear main appeal.

The main appeal arose from the High Court orders which directed that pending hearing and determination of the petition, Bia Tosha distribution territory exclusively be preserved by KBL an order which is alleged to have been disobeyed.

In the matter, Bia Tosha – the largest beer distributor in Kenya, moved to the High Court seeking to prevent East Africa Breweries Limited from appointing other distributors and refund a cumulative Ksh 38 million in goodwill paid over the last 10 years for exclusive distribution rights; a demand EABL opposes.

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