REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONALAND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E313 OF 2026
DIAGEO PLC .....................................................................................PETITIONER
VERSUS
JILK CONSTRUCTIONS COMPANY LIMITED ...................1 ST RESPONDENT
DIRECTOR OF CRIMINAL INVESTIGATIONS....................2 ND RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS.............................3 RD RESPONDENT
THE ATTORNEY GENERAL...................................................4 TH RESPONDENT
KENYA BREWERIES LIMITED..............................................5 TH RESPONDENT
EAST AFRICAN BREWERIES PLC........................................6 TH RESPONDENT
AND
SAMMY MAINA KAMAU...........................................1 ST INTERESTED PARTY
JANE KARUKU............................................................2 ND INTERESTED PARTY
ERIC KINITI .................................................................3 RD INTERESTED PARTY
BRENDA DALY............................................................4 TH INTERESTED PARTY
NICHOLAS QUIRKE....................................................5 TH INTERESTED PARTY
BETHA WANJIRU NDIRAN .......................................6 TH INTERESTED PARTY
MARY NJERI WANYUTU...........................................7 TH INTERESTED PARTY
RULING
1. All parties’ counsel before court today are in agreement that this petition is related to the other matters pending before Hon. Mr. Justice Mutai hence, the need to have this matter placed before the Hon. Judge. In the circumstances, I direct that this matter be and is hereby placed before Justice Mutai for consideration of the merits thereof.
2. The petitioner also seeks interim conservatory orders which prayer is opposed by the 1 st and 3 rd respondents mainly on the grounds that they have filed a preliminary objection challenging jurisdiction of this court to interfere with the jurisdiction of the Magistrate’s Court and the mandate of ODPP and that the court will be issuing orders against parties who are not before this court and who include the Magistrate’s Court as respondents.
3. That whereas there are 4 complainants in the Magistrate’s Court’s intended private prosecution matter, only one of the complainants, being the 1 st respondent is made a respondent to these proceedings.
4. It is also disclosed that the main application before the Magistrate’s Court is yet to set down for hearing and that what is due for hearing on 22/7/2026 is an application challenging the legal representation by Mr. Kibe Mungai, counsel for the complainants in the said proceedings.
5. I have considered the arguments for and against the prayer for interim conservatory orders and I am not satisfied that there is any substratum of this petition which will be dissipated before the parties are all heard on the application for conservatory orders, since the preliminary objections applications for striking out the petition and the application for conservatory orders can be heard together and expeditiously, once the parties comply with directions of the court on filing of responses, rejoinders and or submissions, as the case may be.
6. This court is not satisfied at this stage that seeking of leave of court to mount private prosecution is in itself a threat to or is a violation or amounts to a continuing violation of the petitioner’s rights that requires an interim relief before hearing all the parties on the matter. which all parties agree, is hotly contested, raising very serious issues, requiring interpartes substantive hearing before any conservatory orders can issue.
7. I therefore decline to grant interim relief by way of an interim conservatory order and direct parties to appear before Mutai J on 16/6/2026 for directions on the application for conservatory orders, the preliminary objection and the application to strike out the petition.
I so order.
Dated, Signed and Delivered virtually at Nairobi this 15 th Day of June, 2026
R.E. ABURILI
JUDGE
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IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONALAND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E313 OF 2026
DIAGEO PLC .....................................................................................PETITIONER
VERSUS
JILK CONSTRUCTIONS COMPANY LIMITED ...................1 ST RESPONDENT
DIRECTOR OF CRIMINAL INVESTIGATIONS....................2 ND RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS.............................3 RD RESPONDENT
THE ATTORNEY GENERAL...................................................4 TH RESPONDENT
KENYA BREWERIES LIMITED..............................................5 TH RESPONDENT
EAST AFRICAN BREWERIES PLC........................................6 TH RESPONDENT
AND
SAMMY MAINA KAMAU...........................................1 ST INTERESTED PARTY
JANE KARUKU............................................................2 ND INTERESTED PARTY
ERIC KINITI .................................................................3 RD INTERESTED PARTY
BRENDA DALY............................................................4 TH INTERESTED PARTY
NICHOLAS QUIRKE....................................................5 TH INTERESTED PARTY
BETHA WANJIRU NDIRAN .......................................6 TH INTERESTED PARTY
MARY NJERI WANYUTU...........................................7 TH INTERESTED PARTY
RULING
1. All parties’ counsel before court today are in agreement that this petition is related to the other matters pending before Hon. Mr. Justice Mutai hence, the need to have this matter placed before the Hon. Judge. In the circumstances, I direct that this matter be and is hereby placed before Justice Mutai for consideration of the merits thereof.
2. The petitioner also seeks interim conservatory orders which prayer is opposed by the 1 st and 3 rd respondents mainly on the grounds that they have filed a preliminary objection challenging jurisdiction of this court to interfere with the jurisdiction of the Magistrate’s Court and the mandate of ODPP and that the court will be issuing orders against parties who are not before this court and who include the Magistrate’s Court as respondents.
3. That whereas there are 4 complainants in the Magistrate’s Court’s intended private prosecution matter, only one of the complainants, being the 1 st respondent is made a respondent to these proceedings.
4. It is also disclosed that the main application before the Magistrate’s Court is yet to set down for hearing and that what is due for hearing on 22/7/2026 is an application challenging the legal representation by Mr. Kibe Mungai, counsel for the complainants in the said proceedings.
5. I have considered the arguments for and against the prayer for interim conservatory orders and I am not satisfied that there is any substratum of this petition which will be dissipated before the parties are all heard on the application for conservatory orders, since the preliminary objections applications for striking out the petition and the application for conservatory orders can be heard together and expeditiously, once the parties comply with directions of the court on filing of responses, rejoinders and or submissions, as the case may be.
6. This court is not satisfied at this stage that seeking of leave of court to mount private prosecution is in itself a threat to or is a violation or amounts to a continuing violation of the petitioner’s rights that requires an interim relief before hearing all the parties on the matter. which all parties agree, is hotly contested, raising very serious issues, requiring interpartes substantive hearing before any conservatory orders can issue.
7. I therefore decline to grant interim relief by way of an interim conservatory order and direct parties to appear before Mutai J on 16/6/2026 for directions on the application for conservatory orders, the preliminary objection and the application to strike out the petition.
I so order.
Dated, Signed and Delivered virtually at Nairobi this 15 th Day of June, 2026
R.E. ABURILI
JUDGE
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