Introduction
1. This matter has a long, chequered history. The dispute between the parties has been litigated in this Court, the Court of Appeal, and the Supreme Court. As at the date of this ruling, conservatory orders issued in 2016 in favour of the Petitioner remain in force pending the hearing and determination of the substantive petition.
2. The 4th Respondent has recently announced that it intends to exit the Kenyan market by selling its shares in the 3rd Respondent to a Japanese multinational corporation. The transaction is in progress and subject to outstanding regulatory approvals.
3. Subsequently, and central to the present dispute, the Petitioner, apprehensive that the departure of the 3rd Respondent will prejudice its case, filed an application dated 5th January 2026 seeking orders that:
i. Spent;
ii. Pending the hearing and final determination of the Petition herein, this Court be pleased to grant a conservatory injunction order restraining the 4th Respondent, whether by itself, its agents, nominees, subsidiaries or affiliates, from selling, transferring, encumbering, pledging, or in any manner disposing of its shareholding in East African Breweries Limited (including but not limited to Kenya Breweries Limited and UDV (Kenya) Limited), or any part thereof;
iii. Pending the hearing and final determination of the Petition herein, this Court be pleased to grant a conservatory order preserving the status quo in respect of the ownership, control and legal incidents of the 4th Respondent's shareholding in East African Breweries Limited and its Kenyan subsidiaries;
iv. The conservatory orders sought herein do issue for the purpose of preserving the substratum of the Petition herein, safeguarding the adjudicatory authority of this Court, and ensuring that the Petition is not rendered nugatory;
v. Pending the hearing and final determination of the Petition herein, this Court be pleased to restrain the 4th Respondent from taking any steps that would have the effect of wholly divesting itself of assets within the Republic of Kenya, in a manner that would defeat or frustrate the enforcement of any relief that may be granted under Article 23 of the Constitution;
vi. For the avoidance of doubt, the orders herein are issued in rem and shall bind the subject shares and assets irrespective of any intended or purported contractual arrangements entered into after the filing of this application;
vii. In compliance with the express directions of the Supreme Court, the Petition herein be heard immediately together, and contemporaneously, with all pending applications, and a composite ruling and judgment be rendered; and
viii. The costs of this application be provided for.
4. In the ruling delivered on 9th April 2026, Mwamuye, J, dismissed the application and held as follows:
“71. In conclusion, the Court finds that the Petitioner's Notice of Motion Application dated 5th January 2026 lacks merit but was not an abuse of the court process. The Court further finds that the Respondents are not presently subject to a finding of contempt of court, such as to be disentitled to audience. The Court also finds that the existing conservatory orders dated and issued on 29th June 2016 adequately preserve the substratum of the dispute.
72. Consequently, the Court makes the following final orders:
a) The Petitioner's Notice of Motion dated 5th January 2026 is hereby dismissed;
b) The interim conservatory orders in force other than those issued in the ruling dated and delivered on 29th June 2016, if any, granted earlier be and are hereby discharged;
c) Mention on 15th April 2026 before the Presiding Judge, Milimani CHR Division, for allocation to a Judge in that division and for directions towards the expedited hearing and determination of any other interlocutory applications and the Petition in compliance with the Supreme Court's directions; and
d) No orders as to costs.”
The Petitioner’s Application Dated 4th May 2026
5. The Petitioner herein filed the instant Notice of Motion application on 4th May 2026. The Petitioner seeks orders that:
i. Spent;
ii. Spent;
iii. Pending the filing, hearing and determination of the Petitioner's intended appeal and application under Rule 5(2)(b) of the Court of Appeal Rules seeking interlocutory reliefs, this Court be pleased to suspend the ruling delivered on 9th April 2026;
iv. Pending the filing, bearing and determination of the Petitioner's intended appeal and application under Rule 5(2)(b) of the Court of Appeal Rules, this Court be pleased to issue a conservatory order preserving the status quo in respect of the ownership, control and legal incidents of the 4th Respondent's shareholding in East African Breweries Limited;
v. The conservatory orders granted herein do operate for the purpose of preserving the substratum of the Petition and the intended appeal and safeguarding the effectiveness of any eventual orders of this Court and the Court of Appeal;
vi. The costs of this application be in the cause.
6. The Application is supported by the Petitioner’s Managing Director’s affidavit, dated the same day, and by the grounds on the face of the Application.
7. Ms Burugu deposed that the 4th Respondent had commenced the process of disposing of its controlling shareholding in East African Breweries Limited and its Kenya subsidiaries to the foreign entity Asahi Group Holdings Limited. She further deposed that, on 26th February 2026, the 4th Respondent’s Counsel informed the Court that the process of obtaining the relevant approvals was underway and that, therefore, the transaction was likely to be concluded in mid-June 2026.
8. She contended that the said shareholding constitutes the primary asset through which the 4th Respondent maintains an economic presence and enforcement nexus in Kenya and is therefore the only attachable asset against which any decree of this Court may be enforced.
9. The deponent averred that the Petitioner was aggrieved by the decision of Mwamuye, J, and that it had lodged a Notice of Appeal and moved the Court of Appeal of Kenya under Rule 5(2)(b) of the Court of Appeal Rules seeking interlocutory reliefs pending appeal. It is stated that the appellate court has since issued directions on the filing of responses and submissions.
10. Having regard to the foregoing, the Petitioner contends that the intended appeal is arguable and raises pertinent, substantial questions of law, including whether this Court erred in limiting the substratum of the Petition to distribution routes while disregarding the broader proprietary and commercial framework recognised by the High Court and the Supreme Court; whether the Court failed to apply properly the principles governing conservatory orders under Articles 22 and 23 of the Constitution; and whether the Court adopted an unduly restrictive approach to the nexus requirement, thereby excluding matters that directly affect the practical enforcement of the Petitioner’s rights.
11. The Petitioner is apprehensive that if the 4th Respondent successfully disposes of its controlling shareholding, it will effectively divest itself of its Kenyan asset base. The Petitioner contends that this will expose it to a real and immediate risk of being unable to enforce any judgment ultimately issued in its favour. The Petitioner therefore asserts that it stands to suffer prejudice and irreparable harm incapable of compensation by an award of damages. In the circumstances, it is contended that unless the orders sought are granted, both the intended appeal and the pending application before the Court of Appeal will be rendered nugatory. Accordingly, the Petitioner maintains that the threshold for the grant of conservatory orders pending appeal has been satisfied.
1st and 3rd Respondents’ Response
12. In reply to the Application, the 1st and 3rd Respondents, through the affidavit of Nadida Rowlands, filed a replying affidavit sworn on 6th May 2026.
13. Ms Rowlands deposed that the instant application is misconceived as this Court lacks jurisdiction to entertain it. This is because a similar application is pending before the Court of Appeal. In this regard, they contend that the Petitioner is pursuing parallel proceedings before two superior courts over the same subject matter, which amounts to an abuse of the Court process. She contended that once a party elects to invoke the jurisdiction of the Court of Appeal under Rule 5(2)(b) of its Rules, such a party cannot thereafter pursue a similar relief before this Court.
14. It was contended that the application is res judicata, as the issues raised and reliefs sought have already been determined by this Court in its ruling dated 9th April 2026. It is the case of the 1st and 3rd Respondents that the Petitioner is, in essence, seeking to reopen a matter that was determined. She urged that the present application does not introduce new facts or evidence arising after the delivery of the said Ruling to justify its filing. On that basis, the Respondents assert that the Petitioner is effectively inviting this Court to sit on appeal over its own decision, notwithstanding that it has since become functus officio.
15. Furthermore, the Respondents maintain that the Petitioner has failed to meet the threshold for the grant of conservatory orders. They reason that there is still no nexus between the impugned transaction concerning the sale of the 4th Respondent’s shares and the amended Petition, which principally concerns distributorship arrangements and goodwill payments. In addition, they posit that this Court, in its ruling dated 9th April 2026, already found that no evidence had been adduced to demonstrate any imminent threat to the substratum of the Petition. Be that as it may, the Respondents pointed out that the impugned orders are negative in nature and therefore not capable of being stayed.
16. In light of the foregoing, the Respondents assert that, contrary to the Petitioner’s contention, the Petition will not be rendered nugatory. In any event, they urged that the Petitioner failed to demonstrate how completion of the impugned transaction would hinder the enforcement of any decree that may ultimately be issued. It is further pointed out that the Petitioner’s claim is essentially monetary in nature and thus any loss likely to be suffered is quantifiable and capable of compensation by an award of damages.
17. On the other hand, however, the Respondents aver that they stand to suffer prejudice should the orders sought be granted, as the same would impose a disproportionate restraint on a substantial commercial transaction involving third-party rights, who are not parties to these proceedings.
18. Ms Rowland further deposed that Petitioner has erroneously served this application on the Capital Markets Authority and the Competition Authority of Kenya, neither of which are parties to this action, and that none of their regulatory decisions were the subject of the impugned ruling.
19. The Respondents further contended that the Petitioner had not offered any undertaking as to damages despite the scale of the potential loss likely to be occasioned. Consequently, they maintain that the balance of convenience militates against granting the orders sought. Lastly, the Respondents accuse the Petitioner of inordinate delay.
2nd Respondent’s Case
20. The 2nd Respondents filed their Grounds of Opposition dated 6th May 2026 vide which it was stated as follows:
i. The application constitutes an abuse of process, the Applicant having sought substantially similar orders before the Court of Appeal under Rule 5(2)(b) in Civil Application No. E213 of 2026 - Bia Tosha Distributors Limited vs. Kenya Breweries Limited & Others, now pending hearing, with directions already issued, thereby unlawfully invoking two parallel original jurisdictions;
ii. The application is bad in law as it seeks conservatory orders over assets that are separate and distinct from the subject matter of the Amended Petition, which is predicated on claims over distribution routes and goodwill against the 1st Respondent and allegedly to the 2nd Respondent as determined in the decision of the High Court, the Court of Appeal and the Supreme Court and not on shares indirectly held by the 4th Respondent or any of the Respondents;
iii. The 4th Respondent, an international corporation listed on the London Stock Exchange, is a separate and distinct entity from the 1st and 2nd Respondents, against whom the claim for goodwill is made and who shall remain parties to the suit with sufficient capacity to honour any order that may be issued by this Court;
iv. The shares of the 3rd Respondent are publicly traded on the Nairobi Stock Exchange and are freely transferable, and as a party to these proceedings, any transfer by the 4th Respondent does not prejudice assets within the Court's jurisdiction. In the event, the 3rd Respondent remains a leading listed company with vast assets, underscoring its capacity to meet any orders of this Court;
v. The Applicant has not demonstrated how its claim for goodwill would be rendered nugatory by the sale of an indirect shareholding in a company that remains within the Court's jurisdiction and possesses substantial assets;
vi. The Application fails to meet the threshold for an injunction pending appeal as the intended appeal is not arguable, and there is no risk of the substratum of the dispute (distribution routes) being rendered nugatory. The intended appeal is, in any event, frivolous, being anchored on a non-operative Further Amended Petition that is still the subject of objection and is merely filed, and its admissibility is pending determination by the Court;
vii. The Application discloses no bona fide appellate issue and is in substance a disguised attempt to re-litigate matters already determined by this Court while impermissibly inviting this Court to sit on appeal over its own ruling of 9th April 2026;
viii. The Application is misconceived as it seeks to stay a negative order arising from the ruling of 9th April 2026, which merely dismissed the application without imposing any positive obligation capable of execution, and there is therefore nothing arising therefrom that can properly be stayed and/or suspended; and
ix. The Applicant has abused the court process by engaging in forum shopping and instituting multiple proceedings seeking substantially similar orders arising from the same subject matter, involving identical issues and parties, thereby multiplying proceedings unnecessarily.
4th Respondent’s Case
21. In response to the application, the 4th Respondent’s counsel, Anthony David Willian Smith, filed a Replying Affidavit sworn on 6th May 2026.
22. Mr Smith averred that the instant application amounts to an abuse of the Court process owing to the Petitioner’s pending application before the Court of Appeal in Civil Application No. E213 of 2026, seeking similar reliefs. In this regard, the Petitioner is accused of forum shopping and duplicating proceedings. It is further asserted that, having invoked the appellate jurisdiction of the Court of Appeal, the Petitioner cannot properly return to the same Court that issued the impugned orders seeking similar reliefs.
23. In like manner, the Petitioner is faulted for inviting this Court to sit on appeal of its own decision, as the Petitioner seeks the same orders that were declined by this Court on 9th April 2026. Additionally, the 4th Respondent argues that reliance on the Constitution of Kenya and Rules 3, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 is inapplicable in the circumstances of this case.
24. Mr Smith further deposed that the central issue in dispute in the Amended Petition concerns the Petitioner’s proprietary interests in the distribution of products of the 1st and 2nd Respondents to certain distribution routes, based on goodwill paid by the Petitioner in the years 2000 and 2005 to secure the said routes. It is therefore reasoned that the dispute principally concerns the 1st and 2nd Respondents, who managed the relevant routes, contracts and operations in Kenya. He contended that the 4th Respondent is neither a party to any of the distribution agreements in issue nor involved in the shareholder-level control, upstream shareholding, or corporate ownership of the 1st, 2nd and 3rd Respondents. He stated that the Court, in its ruling dated 9th April 2026, determined that there was no nexus between the issues raised in the Petition and the 4th Respondent.
25. It is further contended that, even if the application were tenable, the Petitioner has failed to satisfy the threshold for the grant of conservatory orders. Mr Smith deposed that the intended appeal was not arguable as there is no nexus whatsoever between the subject matter of the Amended Petition and the 4th Respondent’s intended share sale to Asahi Group Holdings Ltd. Additionally, it is stated that the Petitioner failed to demonstrate that the intended appeal will be rendered nugatory if the orders sought in this Application are not granted.
26. In particular, he observes that this Court, in its ruling dated 9th April 2026, found that the existing conservatory orders issued on 29th June 2016 already preserve the core of the dispute fully. Further, it is averred that the impugned transaction does not involve a sale of Kenyan operating assets, given that the 1st, 2nd and 3rd Respondents are not parties to the transaction and that their legal existence, assets and obligations remain wholly unaffected by a change in their ultimate shareholder. It is further urged that the Petitioner’s intention in filing this Application is merely to obtain unwarranted security over the 4th Respondent’s assets in anticipation of a monetary award upon determination of the Amended Petition. Be that as it may, it was underscored that reciprocal enforcement mechanisms exist between Kenya and England, where the 4th Respondent is incorporated.
27. On the issue of prejudice, the deponent urged that the orders sought, if granted, will occasion immense prejudice not only to the 4th Respondent but also to third parties who are not before this Court.
28. Echoing the 1st and 3rd Respondents' position, Mr Smith urged that the Petitioner is guilty of inordinate delay, as the impugned Ruling was delivered on 9th April 2026 and the present Application was not filed until 4th May 2026. He added that the Court of Appeal Application was filed late, without any justification.
Interested Party’s Case
29. Rebutting the Application, the Interested Party filed Grounds of Opposition dated 6th May 2026 on the ground that:
i. The instant application is an abuse of the Court's process and a waste of scarce judicial resources, as the Petitioner/ Applicant has sought substantially similar reliefs before the Court of Appeal in Civil Application No. E213 of 2026; Bia Tosha Distributors Limited vs. Kenya Breweries Limited & Others, which application has been certified as urgent and directions for disposal issued by the Court of Appeal on 30th April 2026.
ii. This Court does not have jurisdiction to issue status quo orders pending the hearing of the interlocutory application before the Court of Appeal.
iii. The application is bad in law as it seeks to suspend the ruling delivered by Hon. Justice Bahati Mwamuye on 9th April 2026, which was a negative order not capable of suspension by this Court as sought.
iv. The instant application is calculated to re-litigate the question of conservatory orders, which was determined by the Court in its ruling delivered on 9th April 2026.
v. The prayers for conservatory orders brought ostensibly "for the purpose of preserving the substratum of the Petition" and "safeguarding the effectiveness of any eventual orders of this Court" are untenable as they purport to invite this Court to sit on appeal of its own decision delivered on 9th April 2026. This Court lacks jurisdiction to entertain the application.
vi. Without prejudice to the above, the conservatory orders sought are not tenable in law as there is no nexus between the 4th Respondent’s shares subject of the instant application and the substratum of the Amended Petition before the Court, being a claim on the ownership of distributorship routes for distribution of the 1st and 2nd Respondents' products.
vii. Without further prejudice to the foregoing, the Petitioner/Applicant has neither pleaded nor demonstrated any proprietary or equitable right over the 4th Respondent's shares and does not stand to suffer any prejudice or irreparable harm should the conservatory orders sought be declined.
viii. Further, the conservatory orders sought are not only unnecessary and disproportionate, but would also amount to an unjust restriction of the 4th Respondent's right to deal with its property under Article 40 of the Constitution and are therefore inimical to public interest.
ix. The Petitioner/Applicant has neither demonstrated that the intended appeal is arguable nor that the manner in which any change in shareholding of Diageo PLC in EABL would render the intended appeal nugatory.
x. The instant application is an abuse of the court process, frivolous, lacks merit, and it is in the interests of justice that the same be dismissed forthwith with costs.
Parties Submissions
30. The application was canvassed through oral and written submissions. The parties’ counsel made oral submissions on 8th May 2026. Due to the urgency of the matter, the Court reserved its ruling for 28th May 2026.
31. Okoth and Kiplagat Advocates, on behalf of the Petitioner, filed submissions dated 7th May 2026.
32. The oral submissions were made by Kiragu Kimani, SC and Dr Kenneth Kiplagat. Counsel opposed the averment that this Court is functus officio. In Counsel’s view, the doctrine of functus officio does not extinguish the Court's incidental and preservatory jurisdiction pending appeal. Furthermore, Kiragu Kimani, SC, argued that this Court has not made a final and conclusive decision on whether the Petitioner is entitled to a temporary preservation order pending the hearing and determination of the Court of Appeal application. In support of this proposition, Counsel cited the case of Odinga v IEBC & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) where it was held that the doctrine requires that a person is vested with adjudicative or decision-making powers to exercise those powers only once in relation to the same matter.
33. Correspondingly, Counsel argued that the allegation of res judicata is unfounded. Counsel underscored that the Supreme Court in Dickson Muricho Muriuki v Timothy Kagondu Muriuki & another [2014] eKLR held that res judicata would apply only if another court reached a conclusion on the same facts between the same parties. Counsel argued as well that the present Application does not seek a rehearing of the Petitioner’s initial Application, but rather seeks temporary preservation pending the determination of the Court of Appeal application. As such, Counsel maintained that the invoked jurisdiction is incidental and preservatory. To buttress this point, reliance was placed on the Code of Civil Procedure, Volume 1, 18th Edition, where it was highlighted that the court is not powerless to grant relief when the ends of justice and equity so demand, because the powers vested in the court are of wide scope and ambit.
34. Additional reliance was placed on the decision of the Court in Madhupaper International Limited V Kerr; Civil Application No. Nai 116 of 1985.
35. In any case, Counsel argued that the Petitioner had established sufficient ground for preservation of the substratum of the petition pending appeal. It was highlighted that the intended appeal raises substantial and arguable questions of constitutional and public law. Counsel added that the Petitioner had demonstrated a real and imminent risk that, without temporary preservation, the intended appeal and pending appellate application would be rendered nugatory.
36. Reliance was also placed in the case of Butt v Rent Restriction Tribunal [1982] 417 KLR, where it was held that whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed if allowed to happen is reversible, or if it is not reversible, whether damages will reasonably compensate the aggrieved party.
37. Counsel asserted that, since the instant Application is temporary and preservatory in nature, any prejudice that may be suffered by the Respondents is temporary and capable of being compensated. Conversely, Counsel stressed that failure to issue the sought orders risks irreversible consequences to the Petitioner and to the effectiveness of the appellate process. In light of this, Counsel submitted that the balance of justice favours temporary preservation of the substratum of the appeal pending intervention by the Court of Appeal.
1st and 3rd Respondents’ Submissions
38. The 1st and 3rd Respondents, through their counsel, Iseme, Kamau and Maema Advocates, filed submissions dated 7th May 2026. Counsel set out the issues for determination as follows: whether this Court has jurisdiction to entertain the application; whether the application is res judicata; whether the Petitioner has met the threshold for the grant of the orders sought; where the balance of convenience lies; and whether the application is defeated by inordinate delay.
39. Kamau Karori, Senior Counsel, for the 1st and 3rd Respondents, answered the first issue in the negative. He submitted that the application is bad in law as the Petitioner had already invoked the jurisdiction of the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules. Counsel urged that the Petitioner had sought similar reliefs before the appellate Court. It was asserted that a party cannot invoke parallel proceedings in two Courts, as while the High Court and the Court of Appeal possess jurisdiction to grant interim relief pending appeal, that jurisdiction is concurrent and cannot be exercised simultaneously over the same subject matter, which creates the risk of inconsistent determinations, undermines the hierarchy of courts and encourages forum shopping.
40. Counsel relied on the decision of the Court in the case of African Banking Corporation Limited vs Intex Construction Limited & another [2021] KEHC 7594 (KLR) where it was held that although the High Court and the Court of Appeal possess concurrent jurisdiction to grant stay pending appeal, similar applications cannot be maintained simultaneously before both courts and doing so amounts to an abuse of the court process.
41. Counsel also relied on the case of Gathara Chuchu & 473 Others v Gititu Coffee Growers Co-operative Society Ltd & Another [2008] eKLR and Nishith Yogendra Patel v Pascale Mireille Baksh & another [2009] KECA 241 (KLR).
42. The present Application was also faulted for seeking to re-open issues that were conclusively considered and determined by this Court. Counsel noted that although it is framed as an application for stay pending appeal, it seeks the same substantive outcome previously sought and rejected by this Court. Reliance was placed ET v Attorney General & another [2012] KEHC 5506 (KLR), where it was held that cosmetic re-packaging cannot defeat the doctrine of finality in litigation.
43. That notwithstanding, Counsel submitted that the threshold for the grant of conservatory orders and stay pending hearing of the Court of Appeal application had not been met by the Petitioner. Counsel submitted that there is no prima facie case disclosed as the question on the 4th Respondent’s share transaction was determined by this Court and found to bear no nexus to the substantive Petition. Secondly, the alleged risk of prejudice was determined to be unfounded, as the Respondents remain extant legal entities within the jurisdiction, and the law provides mechanisms for enforcing judgments, including against foreign entities. Thirdly, the Court found that the substratum of the Petition is already well preserved by the conservatory orders that were issued on 29th June 2016. Counsel argued that the balance of convenience plainly favours the Respondents as issuance of the orders would disrupt a substantial commercial transaction involving third-party interests that are not the subject of the Petition.
44. On stay of execution, Counsel submitted that the prayer for stay is misconceived since the ruling dated 9th April 2026 merely declined to grant conservatory orders and imposed no positive obligation capable of execution. The ruling was in effect a negative order incapable of being stayed. Counsel referred the Court to the Court of Appeal decision in Kaushik Panchamatia & 3 others vs. Prime Bank Limited & another [2020] KECA 418 (KLR), where it was held that an order dismissing an application is a negative order and a negative order is incapable of being stayed as there is nothing to stay. On this ground alone, the prayer for stay is incompetent and ought to fail.
45. Like reliance was placed in Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR).
46. Concluding, Counsel asserted that the instant Application is defeated by inordinate delay and therefore undeserving of any equitable or discretionary relief.
2nd Respondent’s Submissions
47. The 2nd Respondent’s advocates, Oraro and Company Advocates, filed submissions dated 7th May 2026. Counsel set out the issues for determination as: whether the concurrent pursuit of similar reliefs before this Court and the Court of Appeal renders the present Application an abuse of process, and whether the Petitioner is entitled to the reliefs sought in the Application.
48. George Oraro, Senior Counsel, submitted that the Petitioner’s pursuit of two concurrent proceedings amounts to duplication and impermissible forum shopping, which constitutes an abuse of the Court process. In support o
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1. This matter has a long, chequered history. The dispute between the parties has been litigated in this Court, the Court of Appeal, and the Supreme Court. As at the date of this ruling, conservatory orders issued in 2016 in favour of the Petitioner remain in force pending the hearing and determination of the substantive petition.
2. The 4th Respondent has recently announced that it intends to exit the Kenyan market by selling its shares in the 3rd Respondent to a Japanese multinational corporation. The transaction is in progress and subject to outstanding regulatory approvals.
3. Subsequently, and central to the present dispute, the Petitioner, apprehensive that the departure of the 3rd Respondent will prejudice its case, filed an application dated 5th January 2026 seeking orders that:
i. Spent;
ii. Pending the hearing and final determination of the Petition herein, this Court be pleased to grant a conservatory injunction order restraining the 4th Respondent, whether by itself, its agents, nominees, subsidiaries or affiliates, from selling, transferring, encumbering, pledging, or in any manner disposing of its shareholding in East African Breweries Limited (including but not limited to Kenya Breweries Limited and UDV (Kenya) Limited), or any part thereof;
iii. Pending the hearing and final determination of the Petition herein, this Court be pleased to grant a conservatory order preserving the status quo in respect of the ownership, control and legal incidents of the 4th Respondent's shareholding in East African Breweries Limited and its Kenyan subsidiaries;
iv. The conservatory orders sought herein do issue for the purpose of preserving the substratum of the Petition herein, safeguarding the adjudicatory authority of this Court, and ensuring that the Petition is not rendered nugatory;
v. Pending the hearing and final determination of the Petition herein, this Court be pleased to restrain the 4th Respondent from taking any steps that would have the effect of wholly divesting itself of assets within the Republic of Kenya, in a manner that would defeat or frustrate the enforcement of any relief that may be granted under Article 23 of the Constitution;
vi. For the avoidance of doubt, the orders herein are issued in rem and shall bind the subject shares and assets irrespective of any intended or purported contractual arrangements entered into after the filing of this application;
vii. In compliance with the express directions of the Supreme Court, the Petition herein be heard immediately together, and contemporaneously, with all pending applications, and a composite ruling and judgment be rendered; and
viii. The costs of this application be provided for.
4. In the ruling delivered on 9th April 2026, Mwamuye, J, dismissed the application and held as follows:
“71. In conclusion, the Court finds that the Petitioner's Notice of Motion Application dated 5th January 2026 lacks merit but was not an abuse of the court process. The Court further finds that the Respondents are not presently subject to a finding of contempt of court, such as to be disentitled to audience. The Court also finds that the existing conservatory orders dated and issued on 29th June 2016 adequately preserve the substratum of the dispute.
72. Consequently, the Court makes the following final orders:
a) The Petitioner's Notice of Motion dated 5th January 2026 is hereby dismissed;
b) The interim conservatory orders in force other than those issued in the ruling dated and delivered on 29th June 2016, if any, granted earlier be and are hereby discharged;
c) Mention on 15th April 2026 before the Presiding Judge, Milimani CHR Division, for allocation to a Judge in that division and for directions towards the expedited hearing and determination of any other interlocutory applications and the Petition in compliance with the Supreme Court's directions; and
d) No orders as to costs.”
The Petitioner’s Application Dated 4th May 2026
5. The Petitioner herein filed the instant Notice of Motion application on 4th May 2026. The Petitioner seeks orders that:
i. Spent;
ii. Spent;
iii. Pending the filing, hearing and determination of the Petitioner's intended appeal and application under Rule 5(2)(b) of the Court of Appeal Rules seeking interlocutory reliefs, this Court be pleased to suspend the ruling delivered on 9th April 2026;
iv. Pending the filing, bearing and determination of the Petitioner's intended appeal and application under Rule 5(2)(b) of the Court of Appeal Rules, this Court be pleased to issue a conservatory order preserving the status quo in respect of the ownership, control and legal incidents of the 4th Respondent's shareholding in East African Breweries Limited;
v. The conservatory orders granted herein do operate for the purpose of preserving the substratum of the Petition and the intended appeal and safeguarding the effectiveness of any eventual orders of this Court and the Court of Appeal;
vi. The costs of this application be in the cause.
6. The Application is supported by the Petitioner’s Managing Director’s affidavit, dated the same day, and by the grounds on the face of the Application.
7. Ms Burugu deposed that the 4th Respondent had commenced the process of disposing of its controlling shareholding in East African Breweries Limited and its Kenya subsidiaries to the foreign entity Asahi Group Holdings Limited. She further deposed that, on 26th February 2026, the 4th Respondent’s Counsel informed the Court that the process of obtaining the relevant approvals was underway and that, therefore, the transaction was likely to be concluded in mid-June 2026.
8. She contended that the said shareholding constitutes the primary asset through which the 4th Respondent maintains an economic presence and enforcement nexus in Kenya and is therefore the only attachable asset against which any decree of this Court may be enforced.
9. The deponent averred that the Petitioner was aggrieved by the decision of Mwamuye, J, and that it had lodged a Notice of Appeal and moved the Court of Appeal of Kenya under Rule 5(2)(b) of the Court of Appeal Rules seeking interlocutory reliefs pending appeal. It is stated that the appellate court has since issued directions on the filing of responses and submissions.
10. Having regard to the foregoing, the Petitioner contends that the intended appeal is arguable and raises pertinent, substantial questions of law, including whether this Court erred in limiting the substratum of the Petition to distribution routes while disregarding the broader proprietary and commercial framework recognised by the High Court and the Supreme Court; whether the Court failed to apply properly the principles governing conservatory orders under Articles 22 and 23 of the Constitution; and whether the Court adopted an unduly restrictive approach to the nexus requirement, thereby excluding matters that directly affect the practical enforcement of the Petitioner’s rights.
11. The Petitioner is apprehensive that if the 4th Respondent successfully disposes of its controlling shareholding, it will effectively divest itself of its Kenyan asset base. The Petitioner contends that this will expose it to a real and immediate risk of being unable to enforce any judgment ultimately issued in its favour. The Petitioner therefore asserts that it stands to suffer prejudice and irreparable harm incapable of compensation by an award of damages. In the circumstances, it is contended that unless the orders sought are granted, both the intended appeal and the pending application before the Court of Appeal will be rendered nugatory. Accordingly, the Petitioner maintains that the threshold for the grant of conservatory orders pending appeal has been satisfied.
1st and 3rd Respondents’ Response
12. In reply to the Application, the 1st and 3rd Respondents, through the affidavit of Nadida Rowlands, filed a replying affidavit sworn on 6th May 2026.
13. Ms Rowlands deposed that the instant application is misconceived as this Court lacks jurisdiction to entertain it. This is because a similar application is pending before the Court of Appeal. In this regard, they contend that the Petitioner is pursuing parallel proceedings before two superior courts over the same subject matter, which amounts to an abuse of the Court process. She contended that once a party elects to invoke the jurisdiction of the Court of Appeal under Rule 5(2)(b) of its Rules, such a party cannot thereafter pursue a similar relief before this Court.
14. It was contended that the application is res judicata, as the issues raised and reliefs sought have already been determined by this Court in its ruling dated 9th April 2026. It is the case of the 1st and 3rd Respondents that the Petitioner is, in essence, seeking to reopen a matter that was determined. She urged that the present application does not introduce new facts or evidence arising after the delivery of the said Ruling to justify its filing. On that basis, the Respondents assert that the Petitioner is effectively inviting this Court to sit on appeal over its own decision, notwithstanding that it has since become functus officio.
15. Furthermore, the Respondents maintain that the Petitioner has failed to meet the threshold for the grant of conservatory orders. They reason that there is still no nexus between the impugned transaction concerning the sale of the 4th Respondent’s shares and the amended Petition, which principally concerns distributorship arrangements and goodwill payments. In addition, they posit that this Court, in its ruling dated 9th April 2026, already found that no evidence had been adduced to demonstrate any imminent threat to the substratum of the Petition. Be that as it may, the Respondents pointed out that the impugned orders are negative in nature and therefore not capable of being stayed.
16. In light of the foregoing, the Respondents assert that, contrary to the Petitioner’s contention, the Petition will not be rendered nugatory. In any event, they urged that the Petitioner failed to demonstrate how completion of the impugned transaction would hinder the enforcement of any decree that may ultimately be issued. It is further pointed out that the Petitioner’s claim is essentially monetary in nature and thus any loss likely to be suffered is quantifiable and capable of compensation by an award of damages.
17. On the other hand, however, the Respondents aver that they stand to suffer prejudice should the orders sought be granted, as the same would impose a disproportionate restraint on a substantial commercial transaction involving third-party rights, who are not parties to these proceedings.
18. Ms Rowland further deposed that Petitioner has erroneously served this application on the Capital Markets Authority and the Competition Authority of Kenya, neither of which are parties to this action, and that none of their regulatory decisions were the subject of the impugned ruling.
19. The Respondents further contended that the Petitioner had not offered any undertaking as to damages despite the scale of the potential loss likely to be occasioned. Consequently, they maintain that the balance of convenience militates against granting the orders sought. Lastly, the Respondents accuse the Petitioner of inordinate delay.
2nd Respondent’s Case
20. The 2nd Respondents filed their Grounds of Opposition dated 6th May 2026 vide which it was stated as follows:
i. The application constitutes an abuse of process, the Applicant having sought substantially similar orders before the Court of Appeal under Rule 5(2)(b) in Civil Application No. E213 of 2026 - Bia Tosha Distributors Limited vs. Kenya Breweries Limited & Others, now pending hearing, with directions already issued, thereby unlawfully invoking two parallel original jurisdictions;
ii. The application is bad in law as it seeks conservatory orders over assets that are separate and distinct from the subject matter of the Amended Petition, which is predicated on claims over distribution routes and goodwill against the 1st Respondent and allegedly to the 2nd Respondent as determined in the decision of the High Court, the Court of Appeal and the Supreme Court and not on shares indirectly held by the 4th Respondent or any of the Respondents;
iii. The 4th Respondent, an international corporation listed on the London Stock Exchange, is a separate and distinct entity from the 1st and 2nd Respondents, against whom the claim for goodwill is made and who shall remain parties to the suit with sufficient capacity to honour any order that may be issued by this Court;
iv. The shares of the 3rd Respondent are publicly traded on the Nairobi Stock Exchange and are freely transferable, and as a party to these proceedings, any transfer by the 4th Respondent does not prejudice assets within the Court's jurisdiction. In the event, the 3rd Respondent remains a leading listed company with vast assets, underscoring its capacity to meet any orders of this Court;
v. The Applicant has not demonstrated how its claim for goodwill would be rendered nugatory by the sale of an indirect shareholding in a company that remains within the Court's jurisdiction and possesses substantial assets;
vi. The Application fails to meet the threshold for an injunction pending appeal as the intended appeal is not arguable, and there is no risk of the substratum of the dispute (distribution routes) being rendered nugatory. The intended appeal is, in any event, frivolous, being anchored on a non-operative Further Amended Petition that is still the subject of objection and is merely filed, and its admissibility is pending determination by the Court;
vii. The Application discloses no bona fide appellate issue and is in substance a disguised attempt to re-litigate matters already determined by this Court while impermissibly inviting this Court to sit on appeal over its own ruling of 9th April 2026;
viii. The Application is misconceived as it seeks to stay a negative order arising from the ruling of 9th April 2026, which merely dismissed the application without imposing any positive obligation capable of execution, and there is therefore nothing arising therefrom that can properly be stayed and/or suspended; and
ix. The Applicant has abused the court process by engaging in forum shopping and instituting multiple proceedings seeking substantially similar orders arising from the same subject matter, involving identical issues and parties, thereby multiplying proceedings unnecessarily.
4th Respondent’s Case
21. In response to the application, the 4th Respondent’s counsel, Anthony David Willian Smith, filed a Replying Affidavit sworn on 6th May 2026.
22. Mr Smith averred that the instant application amounts to an abuse of the Court process owing to the Petitioner’s pending application before the Court of Appeal in Civil Application No. E213 of 2026, seeking similar reliefs. In this regard, the Petitioner is accused of forum shopping and duplicating proceedings. It is further asserted that, having invoked the appellate jurisdiction of the Court of Appeal, the Petitioner cannot properly return to the same Court that issued the impugned orders seeking similar reliefs.
23. In like manner, the Petitioner is faulted for inviting this Court to sit on appeal of its own decision, as the Petitioner seeks the same orders that were declined by this Court on 9th April 2026. Additionally, the 4th Respondent argues that reliance on the Constitution of Kenya and Rules 3, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 is inapplicable in the circumstances of this case.
24. Mr Smith further deposed that the central issue in dispute in the Amended Petition concerns the Petitioner’s proprietary interests in the distribution of products of the 1st and 2nd Respondents to certain distribution routes, based on goodwill paid by the Petitioner in the years 2000 and 2005 to secure the said routes. It is therefore reasoned that the dispute principally concerns the 1st and 2nd Respondents, who managed the relevant routes, contracts and operations in Kenya. He contended that the 4th Respondent is neither a party to any of the distribution agreements in issue nor involved in the shareholder-level control, upstream shareholding, or corporate ownership of the 1st, 2nd and 3rd Respondents. He stated that the Court, in its ruling dated 9th April 2026, determined that there was no nexus between the issues raised in the Petition and the 4th Respondent.
25. It is further contended that, even if the application were tenable, the Petitioner has failed to satisfy the threshold for the grant of conservatory orders. Mr Smith deposed that the intended appeal was not arguable as there is no nexus whatsoever between the subject matter of the Amended Petition and the 4th Respondent’s intended share sale to Asahi Group Holdings Ltd. Additionally, it is stated that the Petitioner failed to demonstrate that the intended appeal will be rendered nugatory if the orders sought in this Application are not granted.
26. In particular, he observes that this Court, in its ruling dated 9th April 2026, found that the existing conservatory orders issued on 29th June 2016 already preserve the core of the dispute fully. Further, it is averred that the impugned transaction does not involve a sale of Kenyan operating assets, given that the 1st, 2nd and 3rd Respondents are not parties to the transaction and that their legal existence, assets and obligations remain wholly unaffected by a change in their ultimate shareholder. It is further urged that the Petitioner’s intention in filing this Application is merely to obtain unwarranted security over the 4th Respondent’s assets in anticipation of a monetary award upon determination of the Amended Petition. Be that as it may, it was underscored that reciprocal enforcement mechanisms exist between Kenya and England, where the 4th Respondent is incorporated.
27. On the issue of prejudice, the deponent urged that the orders sought, if granted, will occasion immense prejudice not only to the 4th Respondent but also to third parties who are not before this Court.
28. Echoing the 1st and 3rd Respondents' position, Mr Smith urged that the Petitioner is guilty of inordinate delay, as the impugned Ruling was delivered on 9th April 2026 and the present Application was not filed until 4th May 2026. He added that the Court of Appeal Application was filed late, without any justification.
Interested Party’s Case
29. Rebutting the Application, the Interested Party filed Grounds of Opposition dated 6th May 2026 on the ground that:
i. The instant application is an abuse of the Court's process and a waste of scarce judicial resources, as the Petitioner/ Applicant has sought substantially similar reliefs before the Court of Appeal in Civil Application No. E213 of 2026; Bia Tosha Distributors Limited vs. Kenya Breweries Limited & Others, which application has been certified as urgent and directions for disposal issued by the Court of Appeal on 30th April 2026.
ii. This Court does not have jurisdiction to issue status quo orders pending the hearing of the interlocutory application before the Court of Appeal.
iii. The application is bad in law as it seeks to suspend the ruling delivered by Hon. Justice Bahati Mwamuye on 9th April 2026, which was a negative order not capable of suspension by this Court as sought.
iv. The instant application is calculated to re-litigate the question of conservatory orders, which was determined by the Court in its ruling delivered on 9th April 2026.
v. The prayers for conservatory orders brought ostensibly "for the purpose of preserving the substratum of the Petition" and "safeguarding the effectiveness of any eventual orders of this Court" are untenable as they purport to invite this Court to sit on appeal of its own decision delivered on 9th April 2026. This Court lacks jurisdiction to entertain the application.
vi. Without prejudice to the above, the conservatory orders sought are not tenable in law as there is no nexus between the 4th Respondent’s shares subject of the instant application and the substratum of the Amended Petition before the Court, being a claim on the ownership of distributorship routes for distribution of the 1st and 2nd Respondents' products.
vii. Without further prejudice to the foregoing, the Petitioner/Applicant has neither pleaded nor demonstrated any proprietary or equitable right over the 4th Respondent's shares and does not stand to suffer any prejudice or irreparable harm should the conservatory orders sought be declined.
viii. Further, the conservatory orders sought are not only unnecessary and disproportionate, but would also amount to an unjust restriction of the 4th Respondent's right to deal with its property under Article 40 of the Constitution and are therefore inimical to public interest.
ix. The Petitioner/Applicant has neither demonstrated that the intended appeal is arguable nor that the manner in which any change in shareholding of Diageo PLC in EABL would render the intended appeal nugatory.
x. The instant application is an abuse of the court process, frivolous, lacks merit, and it is in the interests of justice that the same be dismissed forthwith with costs.
Parties Submissions
30. The application was canvassed through oral and written submissions. The parties’ counsel made oral submissions on 8th May 2026. Due to the urgency of the matter, the Court reserved its ruling for 28th May 2026.
31. Okoth and Kiplagat Advocates, on behalf of the Petitioner, filed submissions dated 7th May 2026.
32. The oral submissions were made by Kiragu Kimani, SC and Dr Kenneth Kiplagat. Counsel opposed the averment that this Court is functus officio. In Counsel’s view, the doctrine of functus officio does not extinguish the Court's incidental and preservatory jurisdiction pending appeal. Furthermore, Kiragu Kimani, SC, argued that this Court has not made a final and conclusive decision on whether the Petitioner is entitled to a temporary preservation order pending the hearing and determination of the Court of Appeal application. In support of this proposition, Counsel cited the case of Odinga v IEBC & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) where it was held that the doctrine requires that a person is vested with adjudicative or decision-making powers to exercise those powers only once in relation to the same matter.
33. Correspondingly, Counsel argued that the allegation of res judicata is unfounded. Counsel underscored that the Supreme Court in Dickson Muricho Muriuki v Timothy Kagondu Muriuki & another [2014] eKLR held that res judicata would apply only if another court reached a conclusion on the same facts between the same parties. Counsel argued as well that the present Application does not seek a rehearing of the Petitioner’s initial Application, but rather seeks temporary preservation pending the determination of the Court of Appeal application. As such, Counsel maintained that the invoked jurisdiction is incidental and preservatory. To buttress this point, reliance was placed on the Code of Civil Procedure, Volume 1, 18th Edition, where it was highlighted that the court is not powerless to grant relief when the ends of justice and equity so demand, because the powers vested in the court are of wide scope and ambit.
34. Additional reliance was placed on the decision of the Court in Madhupaper International Limited V Kerr; Civil Application No. Nai 116 of 1985.
35. In any case, Counsel argued that the Petitioner had established sufficient ground for preservation of the substratum of the petition pending appeal. It was highlighted that the intended appeal raises substantial and arguable questions of constitutional and public law. Counsel added that the Petitioner had demonstrated a real and imminent risk that, without temporary preservation, the intended appeal and pending appellate application would be rendered nugatory.
36. Reliance was also placed in the case of Butt v Rent Restriction Tribunal [1982] 417 KLR, where it was held that whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed if allowed to happen is reversible, or if it is not reversible, whether damages will reasonably compensate the aggrieved party.
37. Counsel asserted that, since the instant Application is temporary and preservatory in nature, any prejudice that may be suffered by the Respondents is temporary and capable of being compensated. Conversely, Counsel stressed that failure to issue the sought orders risks irreversible consequences to the Petitioner and to the effectiveness of the appellate process. In light of this, Counsel submitted that the balance of justice favours temporary preservation of the substratum of the appeal pending intervention by the Court of Appeal.
1st and 3rd Respondents’ Submissions
38. The 1st and 3rd Respondents, through their counsel, Iseme, Kamau and Maema Advocates, filed submissions dated 7th May 2026. Counsel set out the issues for determination as follows: whether this Court has jurisdiction to entertain the application; whether the application is res judicata; whether the Petitioner has met the threshold for the grant of the orders sought; where the balance of convenience lies; and whether the application is defeated by inordinate delay.
39. Kamau Karori, Senior Counsel, for the 1st and 3rd Respondents, answered the first issue in the negative. He submitted that the application is bad in law as the Petitioner had already invoked the jurisdiction of the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules. Counsel urged that the Petitioner had sought similar reliefs before the appellate Court. It was asserted that a party cannot invoke parallel proceedings in two Courts, as while the High Court and the Court of Appeal possess jurisdiction to grant interim relief pending appeal, that jurisdiction is concurrent and cannot be exercised simultaneously over the same subject matter, which creates the risk of inconsistent determinations, undermines the hierarchy of courts and encourages forum shopping.
40. Counsel relied on the decision of the Court in the case of African Banking Corporation Limited vs Intex Construction Limited & another [2021] KEHC 7594 (KLR) where it was held that although the High Court and the Court of Appeal possess concurrent jurisdiction to grant stay pending appeal, similar applications cannot be maintained simultaneously before both courts and doing so amounts to an abuse of the court process.
41. Counsel also relied on the case of Gathara Chuchu & 473 Others v Gititu Coffee Growers Co-operative Society Ltd & Another [2008] eKLR and Nishith Yogendra Patel v Pascale Mireille Baksh & another [2009] KECA 241 (KLR).
42. The present Application was also faulted for seeking to re-open issues that were conclusively considered and determined by this Court. Counsel noted that although it is framed as an application for stay pending appeal, it seeks the same substantive outcome previously sought and rejected by this Court. Reliance was placed ET v Attorney General & another [2012] KEHC 5506 (KLR), where it was held that cosmetic re-packaging cannot defeat the doctrine of finality in litigation.
43. That notwithstanding, Counsel submitted that the threshold for the grant of conservatory orders and stay pending hearing of the Court of Appeal application had not been met by the Petitioner. Counsel submitted that there is no prima facie case disclosed as the question on the 4th Respondent’s share transaction was determined by this Court and found to bear no nexus to the substantive Petition. Secondly, the alleged risk of prejudice was determined to be unfounded, as the Respondents remain extant legal entities within the jurisdiction, and the law provides mechanisms for enforcing judgments, including against foreign entities. Thirdly, the Court found that the substratum of the Petition is already well preserved by the conservatory orders that were issued on 29th June 2016. Counsel argued that the balance of convenience plainly favours the Respondents as issuance of the orders would disrupt a substantial commercial transaction involving third-party interests that are not the subject of the Petition.
44. On stay of execution, Counsel submitted that the prayer for stay is misconceived since the ruling dated 9th April 2026 merely declined to grant conservatory orders and imposed no positive obligation capable of execution. The ruling was in effect a negative order incapable of being stayed. Counsel referred the Court to the Court of Appeal decision in Kaushik Panchamatia & 3 others vs. Prime Bank Limited & another [2020] KECA 418 (KLR), where it was held that an order dismissing an application is a negative order and a negative order is incapable of being stayed as there is nothing to stay. On this ground alone, the prayer for stay is incompetent and ought to fail.
45. Like reliance was placed in Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR).
46. Concluding, Counsel asserted that the instant Application is defeated by inordinate delay and therefore undeserving of any equitable or discretionary relief.
2nd Respondent’s Submissions
47. The 2nd Respondent’s advocates, Oraro and Company Advocates, filed submissions dated 7th May 2026. Counsel set out the issues for determination as: whether the concurrent pursuit of similar reliefs before this Court and the Court of Appeal renders the present Application an abuse of process, and whether the Petitioner is entitled to the reliefs sought in the Application.
48. George Oraro, Senior Counsel, submitted that the Petitioner’s pursuit of two concurrent proceedings amounts to duplication and impermissible forum shopping, which constitutes an abuse of the Court process. In support o
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