REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL AND TAX DIVISION
CONSTITUTIONAL PETITION E025 OF 2026
(FORMERLY MACHAKOS PETITION E019 OF 2026)
CHRISTINE IRUNGU................................................PETITIONER
VERSUS
DIAGEO KENYA LIMITED.................................1ST RESPONDENT
DIAGEO PLC....................................................2ND RESPONDENT
EAST AFRICAN BREWERIES LIMITED..............3RD RESPONDENT
ASAHI GROUP HOLDINGS LTD.........................4TH RESPONDENT
CAPITAL MARKETS AUTHORITY......................5TH RESPONDENT
COMPETITION AUTHORITY OF KENYA............6TH RESPONDENT
AND
LAW SOCIETY OF KENYA.......................1ST INTERESTED PARTY
BIA TOSHA DISTRIBUTORS LIMITED....2ND INTERESTED PARTY
RULING
1. I have two applications before me for consideration. One is by the petitioner and the other by the 1st and 2nd respondents, Diageo Kenya Limited and Diageo PLC respectively.
2. Also, before me is a preliminary objection by the 6th defendant, Competition Authority of Kenya (CAK).
Background
3. The petitioner commenced these proceedings before the Machakos High Court, through a petition dated 18.6.2026 challenging the constitutionality of the sale of Diageo’s controlling interest in the 3rd respondent, East Africa Breweries PLC (EABL) to the 4th respondent, Asahi Group Holdings Limited (Asahi Group) on various grounds.
4. The petitioner alleges that the impugned transaction violates articles 10, 35, 40, 46, 47, 48, 50, 73 and 75.
5. In particular, the petitioner argues that the respondents failed to disclose all material information relating to the tender offer, the alleged pre-existing or contemplated onward sale, share premium, the effect on minority shareholders, and the regulatory safeguards imposed.
6. The petitioner also cited regulatory failure by the Capital Markets Authority (CMA) and the Competition Authority of Kenya, CAK (the 5th and 6th respondents respectively). Particularly, that the CMA failed to protect minority shareholders from the possibility of a controlling shareholder using the tender offer to create an enlarged control premium for itself. Further, that the CAK failed to properly consider the competition implications of the transaction and its impact on the consumers, distributors, market players, competition in the beverage sector and the public interest.
7. Ex-parte conservatory orders were issued by Hon. Mong’are J. on 18.6.2026.
8. This prompted Diageo Kenya and Diageo PLC to file a notice of motion dated 30.6.2026, seeking the setting aside and discharge of the ex-parte conservatory orders and transfer of the petition to Constitutional and Human Rights Division for placement before Hon. Gregory Mutai J.
9. By a letter dated 30.6.2026, the Principal Judge, Hon. Ogola J. noted that multiple cases relating to the proposed acquisition of Diageo Kenya and UDV Limited by Asahi Group Holdings Ltd had been filed across various Divisions and stations. He therefore directed that all pending files and subsequent cases relating to the transaction be transmitted to the Presiding Judge and heard by a judge based at the Commercial and Tax Division. This was pursuant to section 6 (1) and (2) of the High Court (Organization and Administration) Act.
10. Pursuant thereto, the files were placed before this court on 23.7.2026 and this court extended the interim orders reasoning that the transaction formed the substratum of the petition and its preservation was imperative in law and in the dispensation of justice.
Petitioner’s application
11. Through a notice of motion dated 18.6.2026, the petitioner seeks various conservatory orders and/ or injunctive reliefs pending the hearing and determination of her petition. The application is brought primarily under Articles 22, 23, 35, 40, 46, 47, 48, 50, 165 and 258 of the Constitution of Kenya.
12. The petitioner urges the court to issue orders to: -
(1) restrain the 1st, 2nd, 3rd and 4th respondents or their agents from selling and/ or transferring of Diageo’s controlling interest in East African Breweries PLC (EABL) to Asahi Group Holdings Limited (Asahi Group).
(2) preserve the ownership, control and shareholding status quo in EABL as regards the 1st and 2nd respondents’ controlling interest therein.
(3) restrain the 5th and 6th respondents from approving, sanctioning, registering, clearing or otherwise facilitating completion of the impugned transaction until full disclosure and lawful regulatory review has been undertaken.
(4) compel the 1st, 2nd, 3rd and 4th respondents to disclose and file before this court all agreements, sale documents, term sheets, board approvals, regulatory filings, correspondence, valuation reports and any other documents relating to the intended sale and transfer of Diageo’s controlling interest in EABL to Asahi Group.
(5) compel the 5th respondent to file before this court a report setting out the regulatory steps taken in respect of the impugned transaction and the safeguards, if any, imposed to protect minority shareholders, investors and the public interest.
(6) compel the 6th respondent to file before this court a report setting out the competition and public interest review undertaken in respect of the impugned transaction.
13. The application is premised on the grounds set out in the application as well as the supporting and further affidavits sworn by the petitioner, Christine Irungu on 18.6.2026 and 7.7.2026.
14. The key grounds are that: -
(1) Diageo previously increased its shareholding in EABL from approximately 50.03% to approximately 65% through a tender offer, represented as an investment or strengthening of partnership.
(2) Thereafter, Diageo agreed to sell its controlling stake in EABL to Asahi Group.
(3) The intended sale to Asahi Group raises serious questions whether the earlier acquisition of additional shares was a pre-sale enhancement of Diageo’s controlling stake.
(4) Unless the conservatory orders sought are issued, the impugned transaction may be completed thereby rendering the petition nugatory.
(5) The petition raises arguable constitutional issues with a likelihood of success.
(6) The public interest favours preservation of the subject matter pending hearing and determination of the petition.
Responses
15. The respondents advanced substantially common grounds of opposition, with some distinctiveness according to their respective positions.
16. Diageo Kenya and Diageo PLC filed a replying affidavit sworn by Diageo PLC’s legal counsel (mergers and acquisitions), Jessica Carrie Thompson on 28.7.2026.
17. Diageo Kenya and Diageo PLC filed a notice of motion dated 30.6.2026 seeking the setting aside and discharge of the ex parte conservatory orders issued on 18.6.2026 restraining the completion of the sale and transfer of the Diageo PLC’s indirect controlling interest in EABL to Asahi and preserving their ownership, control and shareholding status quo in EABL.
18. The application is anchored on, among others, articles 25 (c), 159 and 165(3) (b) of the Constitution. It is premised on the grounds on its body and the supporting affidavit sworn by Diageo PLC’s general counsel, Anthony David William Smith on 30.6.2026.
19. Their main contentions are as follows: -
(1) Of Jurisdiction: That the court lacks jurisdiction to grant the orders sought as the questions raised fall within the statutory and commercial framework governing share transfers, takeovers, mergers, competition review and capital markets regulation.
(2) Doctrine of avoidance: That the orders sought offend the doctrine of constitutional avoidance by inviting the court to assume supervisory role over matters falling within the mandates of the specialized regulators.
(3) Sub judice: That the petition and the application offend the sub judice rule provided in section 6 of the Civil Procedure Rules as the issues of investor protection, regulatory accountability, propriety of the exemption from the requirement to make a mandatory take over offer granted in respect of the transaction and its lawfulness are directly and substantially in issue before the Capital Markets Tribunal and the High Court in Capital Markets Tribunal Appeal No. E001 of 2026, HCCC Misc Appl. E613 of 2026, HCCHR Petitions 249 of 2016 and E296 of 2025.
(4) Material non-disclosure: The petitioner failed to disclose the particulars of the previous proceedings allegedly instituted concerning aspects of the transaction. It indicated that in HCCHR Petitions 249 of 2016 and E296 of 2025 the court considered and declined to grant conservatory orders that would have interfered with the transaction. That in HCCOMM Misc Appl E613 of 2026, the court declined to extend and discharged interim orders previously issued in connection with the transaction. In HCCHR Petition E313 of 2026, the court directed that the matter be placed before Hon. Gregory Mutai who was handling the other two petitions, because the matter raised substantially similar issues arising from the transaction.
(5) The petitioner has made false and misleading statements about historical transactions concerning Diageo Group’s shareholding in EABL including the 1997 rights issue, the 2000 scrip dividend and Diageo PLC’s 2022-2023 tender offer to shareholders EABL (the Tender Offer). It denied that the tender offer was irregular or part of a preconceived scheme to sell an enlarged controlling stake to a third party. It contended that the petitioner has filed the petition with inordinate delay as the subject tender offer was in 2022-2023.
(6) The petitioner has failed to satisfy the threshold for conservatory orders or injunctive relief as prejudice is speculative and no irreparable harm has been shown.
(7) The balance of convenience favours allowing the transaction to proceed as opposed to undermining Kenya’s viability as a destination for international investment.
(8) The application seeks conservatory orders that are final orders and the orders bear no nexus to the complaints raised in the petition.
(9) The orders seeking disclosure of confidential transaction documents are premature, overly broad, amount to a fishing expedition and no entitlement or necessity has been established.
(10) Locus standi: There is no dispute capable of adjudication as the petitioner lacks locus standi and has not demonstrated any prejudice to herself or the public.
(11) The applicant has not offered any undertaking as to damages despite seeking to halt a transaction of monumental value.
20. EABL filed a replying affidavit sworn by its group legal director, Nadida Rowlands on 1.7.2026. It mostly reiterated the grounds of opposition raised by the 1st and 2nd respondents.
21. Asahi Group filed grounds of opposition dated 1.7.2026. It took the similar position that the court has no jurisdiction to entertain these proceedings. It further contended that the challenges raised by the petitioner ought to be pursued before the Capital Markets Tribunal and the Competition Tribunal. It added that assuming this court has jurisdiction, as a matter of discretion, it should decline to exercise that jurisdiction.
22. Asahi Group again contended that the application and the petition are frivolous, vexatious and an abuse of the process of the court, and they should be struck out and/ or be dismissed with costs.
23. The Competition Authority of Kenya (CAK) filed a preliminary objection (PO) dated 1.7.2026. It reiterated the assertion that the court lacks jurisdiction and that the petition offends the doctrine of exhaustion, further advancing that there is an elaborate review mechanism for a review of its decision regarding a merger under section 46 of the Competition Act.
24. CAK went on to argue that section 9(2) of the Fair Administrative Action Act expressly divests the High Court jurisdiction from reviewing administrative action or decisions unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
25. CAK urged the court to dismiss the Petitioners’ Notice of Motion and Petition with costs for being frivolous, vexatious and an abuse of the court process.
Submissions
26. The applications were canvassed through written submissions with oral highlights on 30.7.2026.
27. The petitioner filed primary and further written submissions dated 7.7.2026 and 29.7.2026.
28. Diageo Kenya and Diageo PLC filed written submissions dated 15.7.2026 and 28.7.2026.
29. EABL filed written submissions dated 28.7.2026.
30. Asahi Group filed written submissions dated 28.7.2026.
Petitioner’s submissions
31. Mr. Ayieko for the petitioner urged the court to dismiss the 6th respondent's PO, decline their request to vacate conservatory orders and grant the conservatory orders. He argued that the PO raises factual and contested issues requiring probing of evidence. He asserted that the PO refers to the wrong petition and pleadings.
32. Mr. Ayieko faulted the objector for invoking the doctrine of exhaustion in guise of jurisdiction. He asserted that jurisdiction is properly invoked under Articles 22, 23, 165 (3) (b) and (d) and 258 of the Constitution. He submitted that the matter is not a simple regulatory issue as the petition challenges the sale of shares, rights and guarantees. He added that the petition is composite as it also seeks regulatory accountability.
33. Mr. Ayieko contended that in the instant case, specialized tribunals cannot give adequate relief, only this court can issue the complete and effective remedy. He further asserted that no statutory route can achieve that and that the doctrine of exhaustion does not defeat the petition.
34. Mr. Ayieko submitted that there is no decision by the CAK which is still evaluating whether to okay the transaction, so there is no decision yet to be challenged by the tribunal. He submitted that the CAK has not made any decision in respect of the transaction, the same being still under evaluation. Accordingly, there is no decision by the Authority capable of being challenged before the Tribunal under section 48 of the Competition Act. He also argued that the petitioner cannot invoke the review process under section 48 since she is not a party to that decision.
35. Mr. Ayieko asserted that the petitioner has locus under article 258 of the Constitution by virtue of the public interest nature of the matter. He further asserted that petition satisfies the precision threshold set in the Anarita Karimi case as the petitioner identified the share increase, non-disclosure, constitutional provisions and remedies sought per the pleadings.
36. Mr. Ayieko submitted that the petitioner has an arguable prima facie case for the grant of injunctive relief as she has shown that the transaction was offensive as Diageo increased controlling interest. He indicated that the petitioner could not produce the documents when she is seeking access to information. He also submitted that Bia Tosha Distributors Ltd v Kenya Breweries Ltd & Another, Petition No. 249 of 2016 (Bia Tosha case) does not establish immunity to the transaction.
37. Mr. Ayieko argued that completion will render the petition nugatory. He also argued that the amount involved should not be a basis for ruling out public interest as commercial size cannot produce immunity. He submitted that proportionality should reign. That the petitioner is not prohibiting commerce or regulatory functions and that the transaction cannot be shielded from constitutional scrutiny.
38. The petitioner relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, on the threshold of a PO and on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 on jurisdiction.
39. The petitioner also relied on Speaker of the National Assembly v James Njenga Karume [1992] eKLR, Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR to assert that the doctrine of exhaustion does not bar the petition.
40. Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, to assert that the petition satisfies the principle that constitutional claims should be pleaded with reasonable precision.
41. The petitioner claimed that she has met the threshold for the conservatory orders, and in support thereof cited Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Application No. 5 of 2014; [2014] eKLR and Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 at page 137
Respondents’ submissions
42. On behalf of Diageo Kenya and Diageo PLC, Mr. Regeru, SC rehashed the 11 points of opposition underscored above.
43. Diageo Kenya and Diageo PLC relied on Ndung'u & another v Wachira & another [2025] KEHC 7265 (KLR) and Godfrey Paul Okutoyi & others v Habil Olaka & Another [2018] eKLR on the doctrine of avoidance. They also relied on multiple authorities on jurisdiction, about conservatory orders, what they entail and when they ought to be granted. They further relied on Bia Tosha Distributors Ltd v Kenya Breweries Ltd & Another [supra] where the court declined to interfere with the impugned ongoing commercial transaction involving the parties hereto, holding that stopping such a transaction at an interlocutory stage could negatively affect market confidence and investor interests.
44. Mr. Amoko for Asahi Group submitted that the petition offends the doctrine of separation of powers as it seeks the court’s intervention across the CMA’s sphere. He contended that the CMA is a self-regulatory space as established by Parliament and must observe data protection laws and promote investor confidence. He also contended that the Capital Markets Act provides for all issues that may arise including minority protection.
45. Mr. Amoko relied on the Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others [2021] KESC 34 (KLR) to assert that violation must be demonstrated before interim relief is granted. He submitted that judicial overreach is prohibited. He mentioned that the reliefs sought do not attribute any wrongdoing to his client yet it is being affected.
46. Asahi Group relied on various authorities on the doctrine of exhaustion including those earlier mentioned and Orie Rogo Manduli v Catherine Mukite Nobwola & 3 Others [2013] KEHC 966 (KLR), Obare & Another v Clerk, County Assembly of Siaya & Another [2020] KEHC 4999 and Ramogi & 3 Others v Attorney General & 4 Others [2020] KEHC 10266 (KLR).
47. On the doctrine of exhaustion, Asahi Group relied on Fleur Investments Limited v Commissioner of Domestic Taxes & Another [2018] eKLR and Kenya National Commission on Human Rights v Attorney General & 4 Others [2020] KESC 54 (KLR). It also cited numerous authorities about conservatory orders.
48. Mr. Karori for EABL highlighted that under section 71 of the Capital Markets Act, any person can lodge a complaint with the CMA, but none was raised by the petitioner. He also urged the court to award costs because the petitioner has not produced evidence. He pointed out that in the CMA’s report, exhibited by the petitioner, the CMA indicated that disclosures were made, explained how it gave approval, non-disclosure is provided for and sanctions have been supplied, the CMA concluded that there was no breach of procurement or rights and that the intention was to help innovation and economic gain to the people.
49. EABL relied on Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR on jurisdiction. It also relied on United Millers Limited v Kenya Bureau of Standards & 5 Others [2021] eKLR and Capital Markets Authority v Ciano & Another [2023] KECA 581 (KLR) on exhaustion of remedies.
50. EABL further relied on Communications Commission of Kenya v Royal Media Services Ltd [2014] KESC 53 (KLR) on constitutional avoidance.
51. Mr. Mwangi for the CAK concurred with the submissions of the other respondents.
52. Mr. Githendu for the CMA confirmed that they did not file any response. He, however, indicated that the CMA opposed the application.
53. In reply, Mr. Ayieko asserted that the court has original jurisdiction. He urged the court to take judicial notice that the Capital Markets Tribunal is not properly constituted. He contended that they cannot rely on mechanisms that have not been constituted.
54. Mr. Ayieko submitted that the constitution separates public standing from financial loss. He argued that we cannot subordinate the Constitution to economic interests.
55. Mr. Oyoo holding brief for Mr. Nderitu for the 1st Interested party withdrew their written submissions, indicating that they would not participate in the matter.
Analysis and Determination
Preliminary Objection (PO)
56. A preliminary objection ought to be on a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Oraro v Mbaja [2005] KEHC 3182 (KLR)
57. CAK’s PO challenges the court’s jurisdiction to hear and determine the petition as it offends the doctrine of exhaustion. According to CAK, the issues raised are subject to the elaborate review mechanism under section 46 of the Competition Act. CAK contended that section 9(2) of tie Fair Administrative Action Act restrains the court from reviewing administrative decisions unless internal mechanisms for appeal or review have been exhausted.
58. “Jurisdiction...is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. ... Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.” Public Service Commission & 4 others v Cheruiyot & 20 others (Civil Appeal 119 & 139 of 2017 (consolidated)) [2022] KECA 15 (KLR)
59. “A court’s jurisdiction flows from the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR)
60. The jurisdiction of the High Court flows from Article 165 (3) of the Constitution. It provides that subject to clause (5), the High Court shall have unlimited original jurisdiction in criminal and civil matters.
61. The parameters of the court’s jurisdiction under Article 165 (3) were broadly captured by the court in Gakenyis & 4 others v Cabinet Secretary Lands & 4 others [2024] KEHC 4573 (KLR) at paragraphs 47 and 48.
62. Although the basis of the petition is a commercial transaction (share acquisition/ takeover), there are allegations of violation of the Constitution, rights and guarantees as well as regulatory failure on the part of 5th and 6th respondents. Therefore, the question of whether the court has jurisdiction must be approached with reference to the scope of jurisdiction conferred by article 165 (3) (d) (ii).
63. It provides that the High Court has jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of the question of whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution.
64. The respondents’ challenge to this court’s jurisdiction is premised on the doctrines of exhaustion of remedies and constitutional avoidance.
65. The doctrine of avoidance entails deferring to pathways for resolving a matter on another or other basis rather than as a constitutional issue. S v. Mhlungu, 1995 (3) SA 867 (CC)
66. Put differently, a court will not determine a constitutional issue, when a matter may properly be decided on another basis. Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR).
67. Exceptions to the doctrines include where the suit raises pure questions of constitutional interpretation, structural unconstitutionality of executive actions, where statutory bodies lack the jurisdiction to grant the constitutional remedies sought or where a matter involved grievances from parties who lack adequate audience before a forum created by a statute. Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 3087 (KLR)
68. The doctrine of exhaustion of remedies requires that a party exhausts alternative dispute resolution mechanisms before approaching the Court. Geoffrey Muthinja Kabiru & 2 Other v Samuel Munga Henry & 1756 Others [2015] eKLR
69. Section 9 of the Fair Administrative Actions Act provides that: -
“9. Procedure for judicial review
(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.”
70. But, section 9(4) of the Fair Administrative Action Act recognizes exception to the doctrine of exhaustion of remedies.
71. In determining whether the petition is barred by the doctrines, the court “…must undertake an extensive analysis of the facts, the regulatory scheme involved, the nature of the interests involved- including the level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies…” Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 3087 (KLR)
Constitutional questions
72. The petitioner submitted that the petition raises constitutional questions of whether there was material non disclosure of the intention to sell Diageo’s controlling stake at the time of the increase of shareholding; whether a controlling shareholder in a listed public company can acquire additional shares from minority shareholders under one market narrative and thereafter use the enlarged stake to obtain a special private premium and unavailable to them and whether the CMA and the CAK have discharged their constitutional and statutory obligations in line with the law and the Constitution.
73. The petitioner contended that the transaction violates articles 10, 35, 40, 46, 47, 48, 50, 73 and 75 and that the respondents failed to disclose all material information relating to the tender offer, the alleged pre-existing or contemplated onward sale, share premium, the effect on minority shareholders, and the regulatory safeguards imposed.
74. The petitioner also alleged that the CMA failed to protect minority shareholders from the possibility of a controlling shareholder using the tender offer to create an enlarged control premium for itself and the CAK failed to properly consider the competition implications of the transaction and its impact on the consumers, distributors, market players, competition in the beverage sector and the public interest.
75. The respondents contended that the petitioner’s complaints fall within the statutory mandates of specialized regulatory bodies and the relevant appellate tribunals established under the applicable legal framework. They submitted that any person aggrieved by the CMA’s decision, action or omission is required to pursue the statutory review and appeal mechanism established under the Capital Markets Act.
76. They further contended that the CMA is mandated to supervise and regulate takeovers, mergers and acquisitions involving listed companies, ensure disclosure of material information, protect investors and maintain fair and transparent markets.
77. The respondents submitted that CAK is empowered under sections 43 – 46 of the Competition Act to review proposed mergers, assess their effect on competition and public interest, and issue appropriate determinations. It was also asserted that where a party is dissatisfied with a merger determination made by the CAK, the Act provides a specific statutory remedy before the Tribunal followed by an appeal before the Tribunal.
78. The respondents argued that the petitioner’s complaints do not present exceptional constitutional questions requiring the court’s intervention. They submitted that matters relating to alleged oppression of minority shareholders, unfair treatment of shareholders and corporate governance are ordinarily addressed within the corporate law framework under the Companies Act.
79. The petitioner argued that the jurisdiction is properly invoked and that the doctrine of exhaustion does not defeat the petition. She asserted that specialized tribunals cannot give adequate relief in this matter, only this court can issue the complete and effective remedy. She also submitted that since the transaction is under evaluation by CAK, there is no decision capable of being challenged before the Tribunal.
80. Section 46 of the Competition Act provides that the CAK may make a determination in relation to a proposed merger. Section 48 (3) of the Act states that upon receipt of a decision made by the CAK, a party may apply to the Tribunal for review of the Authority’s decision.
81. The Capital Markets Act established the CMA for purposes of promoting, regulating and facilitating the development of an orderly, fair and efficient capital market in Kenya.
82. Section 35A establishes the Capital Markets Tribunal. Subsection (4) provides that “the Tribunal shall, upon an appeal made to it in writing by any party or a reference made to it by the Authority or by any committee or officer of the Authority, on any matter relating to this
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL AND TAX DIVISION
CONSTITUTIONAL PETITION E025 OF 2026
(FORMERLY MACHAKOS PETITION E019 OF 2026)
CHRISTINE IRUNGU................................................PETITIONER
VERSUS
DIAGEO KENYA LIMITED.................................1ST RESPONDENT
DIAGEO PLC....................................................2ND RESPONDENT
EAST AFRICAN BREWERIES LIMITED..............3RD RESPONDENT
ASAHI GROUP HOLDINGS LTD.........................4TH RESPONDENT
CAPITAL MARKETS AUTHORITY......................5TH RESPONDENT
COMPETITION AUTHORITY OF KENYA............6TH RESPONDENT
AND
LAW SOCIETY OF KENYA.......................1ST INTERESTED PARTY
BIA TOSHA DISTRIBUTORS LIMITED....2ND INTERESTED PARTY
RULING
1. I have two applications before me for consideration. One is by the petitioner and the other by the 1st and 2nd respondents, Diageo Kenya Limited and Diageo PLC respectively.
2. Also, before me is a preliminary objection by the 6th defendant, Competition Authority of Kenya (CAK).
Background
3. The petitioner commenced these proceedings before the Machakos High Court, through a petition dated 18.6.2026 challenging the constitutionality of the sale of Diageo’s controlling interest in the 3rd respondent, East Africa Breweries PLC (EABL) to the 4th respondent, Asahi Group Holdings Limited (Asahi Group) on various grounds.
4. The petitioner alleges that the impugned transaction violates articles 10, 35, 40, 46, 47, 48, 50, 73 and 75.
5. In particular, the petitioner argues that the respondents failed to disclose all material information relating to the tender offer, the alleged pre-existing or contemplated onward sale, share premium, the effect on minority shareholders, and the regulatory safeguards imposed.
6. The petitioner also cited regulatory failure by the Capital Markets Authority (CMA) and the Competition Authority of Kenya, CAK (the 5th and 6th respondents respectively). Particularly, that the CMA failed to protect minority shareholders from the possibility of a controlling shareholder using the tender offer to create an enlarged control premium for itself. Further, that the CAK failed to properly consider the competition implications of the transaction and its impact on the consumers, distributors, market players, competition in the beverage sector and the public interest.
7. Ex-parte conservatory orders were issued by Hon. Mong’are J. on 18.6.2026.
8. This prompted Diageo Kenya and Diageo PLC to file a notice of motion dated 30.6.2026, seeking the setting aside and discharge of the ex-parte conservatory orders and transfer of the petition to Constitutional and Human Rights Division for placement before Hon. Gregory Mutai J.
9. By a letter dated 30.6.2026, the Principal Judge, Hon. Ogola J. noted that multiple cases relating to the proposed acquisition of Diageo Kenya and UDV Limited by Asahi Group Holdings Ltd had been filed across various Divisions and stations. He therefore directed that all pending files and subsequent cases relating to the transaction be transmitted to the Presiding Judge and heard by a judge based at the Commercial and Tax Division. This was pursuant to section 6 (1) and (2) of the High Court (Organization and Administration) Act.
10. Pursuant thereto, the files were placed before this court on 23.7.2026 and this court extended the interim orders reasoning that the transaction formed the substratum of the petition and its preservation was imperative in law and in the dispensation of justice.
Petitioner’s application
11. Through a notice of motion dated 18.6.2026, the petitioner seeks various conservatory orders and/ or injunctive reliefs pending the hearing and determination of her petition. The application is brought primarily under Articles 22, 23, 35, 40, 46, 47, 48, 50, 165 and 258 of the Constitution of Kenya.
12. The petitioner urges the court to issue orders to: -
(1) restrain the 1st, 2nd, 3rd and 4th respondents or their agents from selling and/ or transferring of Diageo’s controlling interest in East African Breweries PLC (EABL) to Asahi Group Holdings Limited (Asahi Group).
(2) preserve the ownership, control and shareholding status quo in EABL as regards the 1st and 2nd respondents’ controlling interest therein.
(3) restrain the 5th and 6th respondents from approving, sanctioning, registering, clearing or otherwise facilitating completion of the impugned transaction until full disclosure and lawful regulatory review has been undertaken.
(4) compel the 1st, 2nd, 3rd and 4th respondents to disclose and file before this court all agreements, sale documents, term sheets, board approvals, regulatory filings, correspondence, valuation reports and any other documents relating to the intended sale and transfer of Diageo’s controlling interest in EABL to Asahi Group.
(5) compel the 5th respondent to file before this court a report setting out the regulatory steps taken in respect of the impugned transaction and the safeguards, if any, imposed to protect minority shareholders, investors and the public interest.
(6) compel the 6th respondent to file before this court a report setting out the competition and public interest review undertaken in respect of the impugned transaction.
13. The application is premised on the grounds set out in the application as well as the supporting and further affidavits sworn by the petitioner, Christine Irungu on 18.6.2026 and 7.7.2026.
14. The key grounds are that: -
(1) Diageo previously increased its shareholding in EABL from approximately 50.03% to approximately 65% through a tender offer, represented as an investment or strengthening of partnership.
(2) Thereafter, Diageo agreed to sell its controlling stake in EABL to Asahi Group.
(3) The intended sale to Asahi Group raises serious questions whether the earlier acquisition of additional shares was a pre-sale enhancement of Diageo’s controlling stake.
(4) Unless the conservatory orders sought are issued, the impugned transaction may be completed thereby rendering the petition nugatory.
(5) The petition raises arguable constitutional issues with a likelihood of success.
(6) The public interest favours preservation of the subject matter pending hearing and determination of the petition.
Responses
15. The respondents advanced substantially common grounds of opposition, with some distinctiveness according to their respective positions.
16. Diageo Kenya and Diageo PLC filed a replying affidavit sworn by Diageo PLC’s legal counsel (mergers and acquisitions), Jessica Carrie Thompson on 28.7.2026.
17. Diageo Kenya and Diageo PLC filed a notice of motion dated 30.6.2026 seeking the setting aside and discharge of the ex parte conservatory orders issued on 18.6.2026 restraining the completion of the sale and transfer of the Diageo PLC’s indirect controlling interest in EABL to Asahi and preserving their ownership, control and shareholding status quo in EABL.
18. The application is anchored on, among others, articles 25 (c), 159 and 165(3) (b) of the Constitution. It is premised on the grounds on its body and the supporting affidavit sworn by Diageo PLC’s general counsel, Anthony David William Smith on 30.6.2026.
19. Their main contentions are as follows: -
(1) Of Jurisdiction: That the court lacks jurisdiction to grant the orders sought as the questions raised fall within the statutory and commercial framework governing share transfers, takeovers, mergers, competition review and capital markets regulation.
(2) Doctrine of avoidance: That the orders sought offend the doctrine of constitutional avoidance by inviting the court to assume supervisory role over matters falling within the mandates of the specialized regulators.
(3) Sub judice: That the petition and the application offend the sub judice rule provided in section 6 of the Civil Procedure Rules as the issues of investor protection, regulatory accountability, propriety of the exemption from the requirement to make a mandatory take over offer granted in respect of the transaction and its lawfulness are directly and substantially in issue before the Capital Markets Tribunal and the High Court in Capital Markets Tribunal Appeal No. E001 of 2026, HCCC Misc Appl. E613 of 2026, HCCHR Petitions 249 of 2016 and E296 of 2025.
(4) Material non-disclosure: The petitioner failed to disclose the particulars of the previous proceedings allegedly instituted concerning aspects of the transaction. It indicated that in HCCHR Petitions 249 of 2016 and E296 of 2025 the court considered and declined to grant conservatory orders that would have interfered with the transaction. That in HCCOMM Misc Appl E613 of 2026, the court declined to extend and discharged interim orders previously issued in connection with the transaction. In HCCHR Petition E313 of 2026, the court directed that the matter be placed before Hon. Gregory Mutai who was handling the other two petitions, because the matter raised substantially similar issues arising from the transaction.
(5) The petitioner has made false and misleading statements about historical transactions concerning Diageo Group’s shareholding in EABL including the 1997 rights issue, the 2000 scrip dividend and Diageo PLC’s 2022-2023 tender offer to shareholders EABL (the Tender Offer). It denied that the tender offer was irregular or part of a preconceived scheme to sell an enlarged controlling stake to a third party. It contended that the petitioner has filed the petition with inordinate delay as the subject tender offer was in 2022-2023.
(6) The petitioner has failed to satisfy the threshold for conservatory orders or injunctive relief as prejudice is speculative and no irreparable harm has been shown.
(7) The balance of convenience favours allowing the transaction to proceed as opposed to undermining Kenya’s viability as a destination for international investment.
(8) The application seeks conservatory orders that are final orders and the orders bear no nexus to the complaints raised in the petition.
(9) The orders seeking disclosure of confidential transaction documents are premature, overly broad, amount to a fishing expedition and no entitlement or necessity has been established.
(10) Locus standi: There is no dispute capable of adjudication as the petitioner lacks locus standi and has not demonstrated any prejudice to herself or the public.
(11) The applicant has not offered any undertaking as to damages despite seeking to halt a transaction of monumental value.
20. EABL filed a replying affidavit sworn by its group legal director, Nadida Rowlands on 1.7.2026. It mostly reiterated the grounds of opposition raised by the 1st and 2nd respondents.
21. Asahi Group filed grounds of opposition dated 1.7.2026. It took the similar position that the court has no jurisdiction to entertain these proceedings. It further contended that the challenges raised by the petitioner ought to be pursued before the Capital Markets Tribunal and the Competition Tribunal. It added that assuming this court has jurisdiction, as a matter of discretion, it should decline to exercise that jurisdiction.
22. Asahi Group again contended that the application and the petition are frivolous, vexatious and an abuse of the process of the court, and they should be struck out and/ or be dismissed with costs.
23. The Competition Authority of Kenya (CAK) filed a preliminary objection (PO) dated 1.7.2026. It reiterated the assertion that the court lacks jurisdiction and that the petition offends the doctrine of exhaustion, further advancing that there is an elaborate review mechanism for a review of its decision regarding a merger under section 46 of the Competition Act.
24. CAK went on to argue that section 9(2) of the Fair Administrative Action Act expressly divests the High Court jurisdiction from reviewing administrative action or decisions unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
25. CAK urged the court to dismiss the Petitioners’ Notice of Motion and Petition with costs for being frivolous, vexatious and an abuse of the court process.
Submissions
26. The applications were canvassed through written submissions with oral highlights on 30.7.2026.
27. The petitioner filed primary and further written submissions dated 7.7.2026 and 29.7.2026.
28. Diageo Kenya and Diageo PLC filed written submissions dated 15.7.2026 and 28.7.2026.
29. EABL filed written submissions dated 28.7.2026.
30. Asahi Group filed written submissions dated 28.7.2026.
Petitioner’s submissions
31. Mr. Ayieko for the petitioner urged the court to dismiss the 6th respondent's PO, decline their request to vacate conservatory orders and grant the conservatory orders. He argued that the PO raises factual and contested issues requiring probing of evidence. He asserted that the PO refers to the wrong petition and pleadings.
32. Mr. Ayieko faulted the objector for invoking the doctrine of exhaustion in guise of jurisdiction. He asserted that jurisdiction is properly invoked under Articles 22, 23, 165 (3) (b) and (d) and 258 of the Constitution. He submitted that the matter is not a simple regulatory issue as the petition challenges the sale of shares, rights and guarantees. He added that the petition is composite as it also seeks regulatory accountability.
33. Mr. Ayieko contended that in the instant case, specialized tribunals cannot give adequate relief, only this court can issue the complete and effective remedy. He further asserted that no statutory route can achieve that and that the doctrine of exhaustion does not defeat the petition.
34. Mr. Ayieko submitted that there is no decision by the CAK which is still evaluating whether to okay the transaction, so there is no decision yet to be challenged by the tribunal. He submitted that the CAK has not made any decision in respect of the transaction, the same being still under evaluation. Accordingly, there is no decision by the Authority capable of being challenged before the Tribunal under section 48 of the Competition Act. He also argued that the petitioner cannot invoke the review process under section 48 since she is not a party to that decision.
35. Mr. Ayieko asserted that the petitioner has locus under article 258 of the Constitution by virtue of the public interest nature of the matter. He further asserted that petition satisfies the precision threshold set in the Anarita Karimi case as the petitioner identified the share increase, non-disclosure, constitutional provisions and remedies sought per the pleadings.
36. Mr. Ayieko submitted that the petitioner has an arguable prima facie case for the grant of injunctive relief as she has shown that the transaction was offensive as Diageo increased controlling interest. He indicated that the petitioner could not produce the documents when she is seeking access to information. He also submitted that Bia Tosha Distributors Ltd v Kenya Breweries Ltd & Another, Petition No. 249 of 2016 (Bia Tosha case) does not establish immunity to the transaction.
37. Mr. Ayieko argued that completion will render the petition nugatory. He also argued that the amount involved should not be a basis for ruling out public interest as commercial size cannot produce immunity. He submitted that proportionality should reign. That the petitioner is not prohibiting commerce or regulatory functions and that the transaction cannot be shielded from constitutional scrutiny.
38. The petitioner relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, on the threshold of a PO and on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 on jurisdiction.
39. The petitioner also relied on Speaker of the National Assembly v James Njenga Karume [1992] eKLR, Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR to assert that the doctrine of exhaustion does not bar the petition.
40. Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, to assert that the petition satisfies the principle that constitutional claims should be pleaded with reasonable precision.
41. The petitioner claimed that she has met the threshold for the conservatory orders, and in support thereof cited Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Application No. 5 of 2014; [2014] eKLR and Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 at page 137
Respondents’ submissions
42. On behalf of Diageo Kenya and Diageo PLC, Mr. Regeru, SC rehashed the 11 points of opposition underscored above.
43. Diageo Kenya and Diageo PLC relied on Ndung'u & another v Wachira & another [2025] KEHC 7265 (KLR) and Godfrey Paul Okutoyi & others v Habil Olaka & Another [2018] eKLR on the doctrine of avoidance. They also relied on multiple authorities on jurisdiction, about conservatory orders, what they entail and when they ought to be granted. They further relied on Bia Tosha Distributors Ltd v Kenya Breweries Ltd & Another [supra] where the court declined to interfere with the impugned ongoing commercial transaction involving the parties hereto, holding that stopping such a transaction at an interlocutory stage could negatively affect market confidence and investor interests.
44. Mr. Amoko for Asahi Group submitted that the petition offends the doctrine of separation of powers as it seeks the court’s intervention across the CMA’s sphere. He contended that the CMA is a self-regulatory space as established by Parliament and must observe data protection laws and promote investor confidence. He also contended that the Capital Markets Act provides for all issues that may arise including minority protection.
45. Mr. Amoko relied on the Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others [2021] KESC 34 (KLR) to assert that violation must be demonstrated before interim relief is granted. He submitted that judicial overreach is prohibited. He mentioned that the reliefs sought do not attribute any wrongdoing to his client yet it is being affected.
46. Asahi Group relied on various authorities on the doctrine of exhaustion including those earlier mentioned and Orie Rogo Manduli v Catherine Mukite Nobwola & 3 Others [2013] KEHC 966 (KLR), Obare & Another v Clerk, County Assembly of Siaya & Another [2020] KEHC 4999 and Ramogi & 3 Others v Attorney General & 4 Others [2020] KEHC 10266 (KLR).
47. On the doctrine of exhaustion, Asahi Group relied on Fleur Investments Limited v Commissioner of Domestic Taxes & Another [2018] eKLR and Kenya National Commission on Human Rights v Attorney General & 4 Others [2020] KESC 54 (KLR). It also cited numerous authorities about conservatory orders.
48. Mr. Karori for EABL highlighted that under section 71 of the Capital Markets Act, any person can lodge a complaint with the CMA, but none was raised by the petitioner. He also urged the court to award costs because the petitioner has not produced evidence. He pointed out that in the CMA’s report, exhibited by the petitioner, the CMA indicated that disclosures were made, explained how it gave approval, non-disclosure is provided for and sanctions have been supplied, the CMA concluded that there was no breach of procurement or rights and that the intention was to help innovation and economic gain to the people.
49. EABL relied on Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR on jurisdiction. It also relied on United Millers Limited v Kenya Bureau of Standards & 5 Others [2021] eKLR and Capital Markets Authority v Ciano & Another [2023] KECA 581 (KLR) on exhaustion of remedies.
50. EABL further relied on Communications Commission of Kenya v Royal Media Services Ltd [2014] KESC 53 (KLR) on constitutional avoidance.
51. Mr. Mwangi for the CAK concurred with the submissions of the other respondents.
52. Mr. Githendu for the CMA confirmed that they did not file any response. He, however, indicated that the CMA opposed the application.
53. In reply, Mr. Ayieko asserted that the court has original jurisdiction. He urged the court to take judicial notice that the Capital Markets Tribunal is not properly constituted. He contended that they cannot rely on mechanisms that have not been constituted.
54. Mr. Ayieko submitted that the constitution separates public standing from financial loss. He argued that we cannot subordinate the Constitution to economic interests.
55. Mr. Oyoo holding brief for Mr. Nderitu for the 1st Interested party withdrew their written submissions, indicating that they would not participate in the matter.
Analysis and Determination
Preliminary Objection (PO)
56. A preliminary objection ought to be on a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Oraro v Mbaja [2005] KEHC 3182 (KLR)
57. CAK’s PO challenges the court’s jurisdiction to hear and determine the petition as it offends the doctrine of exhaustion. According to CAK, the issues raised are subject to the elaborate review mechanism under section 46 of the Competition Act. CAK contended that section 9(2) of tie Fair Administrative Action Act restrains the court from reviewing administrative decisions unless internal mechanisms for appeal or review have been exhausted.
58. “Jurisdiction...is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. ... Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.” Public Service Commission & 4 others v Cheruiyot & 20 others (Civil Appeal 119 & 139 of 2017 (consolidated)) [2022] KECA 15 (KLR)
59. “A court’s jurisdiction flows from the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR)
60. The jurisdiction of the High Court flows from Article 165 (3) of the Constitution. It provides that subject to clause (5), the High Court shall have unlimited original jurisdiction in criminal and civil matters.
61. The parameters of the court’s jurisdiction under Article 165 (3) were broadly captured by the court in Gakenyis & 4 others v Cabinet Secretary Lands & 4 others [2024] KEHC 4573 (KLR) at paragraphs 47 and 48.
62. Although the basis of the petition is a commercial transaction (share acquisition/ takeover), there are allegations of violation of the Constitution, rights and guarantees as well as regulatory failure on the part of 5th and 6th respondents. Therefore, the question of whether the court has jurisdiction must be approached with reference to the scope of jurisdiction conferred by article 165 (3) (d) (ii).
63. It provides that the High Court has jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of the question of whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution.
64. The respondents’ challenge to this court’s jurisdiction is premised on the doctrines of exhaustion of remedies and constitutional avoidance.
65. The doctrine of avoidance entails deferring to pathways for resolving a matter on another or other basis rather than as a constitutional issue. S v. Mhlungu, 1995 (3) SA 867 (CC)
66. Put differently, a court will not determine a constitutional issue, when a matter may properly be decided on another basis. Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR).
67. Exceptions to the doctrines include where the suit raises pure questions of constitutional interpretation, structural unconstitutionality of executive actions, where statutory bodies lack the jurisdiction to grant the constitutional remedies sought or where a matter involved grievances from parties who lack adequate audience before a forum created by a statute. Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 3087 (KLR)
68. The doctrine of exhaustion of remedies requires that a party exhausts alternative dispute resolution mechanisms before approaching the Court. Geoffrey Muthinja Kabiru & 2 Other v Samuel Munga Henry & 1756 Others [2015] eKLR
69. Section 9 of the Fair Administrative Actions Act provides that: -
“9. Procedure for judicial review
(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.”
70. But, section 9(4) of the Fair Administrative Action Act recognizes exception to the doctrine of exhaustion of remedies.
71. In determining whether the petition is barred by the doctrines, the court “…must undertake an extensive analysis of the facts, the regulatory scheme involved, the nature of the interests involved- including the level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies…” Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 3087 (KLR)
Constitutional questions
72. The petitioner submitted that the petition raises constitutional questions of whether there was material non disclosure of the intention to sell Diageo’s controlling stake at the time of the increase of shareholding; whether a controlling shareholder in a listed public company can acquire additional shares from minority shareholders under one market narrative and thereafter use the enlarged stake to obtain a special private premium and unavailable to them and whether the CMA and the CAK have discharged their constitutional and statutory obligations in line with the law and the Constitution.
73. The petitioner contended that the transaction violates articles 10, 35, 40, 46, 47, 48, 50, 73 and 75 and that the respondents failed to disclose all material information relating to the tender offer, the alleged pre-existing or contemplated onward sale, share premium, the effect on minority shareholders, and the regulatory safeguards imposed.
74. The petitioner also alleged that the CMA failed to protect minority shareholders from the possibility of a controlling shareholder using the tender offer to create an enlarged control premium for itself and the CAK failed to properly consider the competition implications of the transaction and its impact on the consumers, distributors, market players, competition in the beverage sector and the public interest.
75. The respondents contended that the petitioner’s complaints fall within the statutory mandates of specialized regulatory bodies and the relevant appellate tribunals established under the applicable legal framework. They submitted that any person aggrieved by the CMA’s decision, action or omission is required to pursue the statutory review and appeal mechanism established under the Capital Markets Act.
76. They further contended that the CMA is mandated to supervise and regulate takeovers, mergers and acquisitions involving listed companies, ensure disclosure of material information, protect investors and maintain fair and transparent markets.
77. The respondents submitted that CAK is empowered under sections 43 – 46 of the Competition Act to review proposed mergers, assess their effect on competition and public interest, and issue appropriate determinations. It was also asserted that where a party is dissatisfied with a merger determination made by the CAK, the Act provides a specific statutory remedy before the Tribunal followed by an appeal before the Tribunal.
78. The respondents argued that the petitioner’s complaints do not present exceptional constitutional questions requiring the court’s intervention. They submitted that matters relating to alleged oppression of minority shareholders, unfair treatment of shareholders and corporate governance are ordinarily addressed within the corporate law framework under the Companies Act.
79. The petitioner argued that the jurisdiction is properly invoked and that the doctrine of exhaustion does not defeat the petition. She asserted that specialized tribunals cannot give adequate relief in this matter, only this court can issue the complete and effective remedy. She also submitted that since the transaction is under evaluation by CAK, there is no decision capable of being challenged before the Tribunal.
80. Section 46 of the Competition Act provides that the CAK may make a determination in relation to a proposed merger. Section 48 (3) of the Act states that upon receipt of a decision made by the CAK, a party may apply to the Tribunal for review of the Authority’s decision.
81. The Capital Markets Act established the CMA for purposes of promoting, regulating and facilitating the development of an orderly, fair and efficient capital market in Kenya.
82. Section 35A establishes the Capital Markets Tribunal. Subsection (4) provides that “the Tribunal shall, upon an appeal made to it in writing by any party or a reference made to it by the Authority or by any committee or officer of the Authority, on any matter relating to this
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