Introduction
1. There are two applications before this Court. The first is the Notice of Motion application dated 8th May 2026, filed by the Petitioners. The second is the application of the 6th Respondent, whose Notice of Motion is dated 13th May 2026. The 5th and the 7th Respondents filed Notices of Preliminary Objection, contesting this Court’s jurisdiction to hear and determine the Petition and to grant conservatory orders. On its part, the 1st Respondent objected to the petition on the ground that it was not properly served and, for that reason, that this Court had not assumed jurisdiction over it.
2. This consolidated ruling concerns all these applications and objections. I will first set out the applications and the objections, and thereafter consider them in turn, beginning with those that raise jurisdictional questions. If this Court finds that it has jurisdiction, it will determine the Petitioners’ application on the merits.
Petitioners’ Application
3. Vide their said Notice of Motion Application on 8th May 2026, the petitioners seek the following orders:
i. Spent.
ii. Pending hearing and determination of this Application/Petition, the Court be pleased to issue a conservatory order restraining the 1st Respondent from taking over the assets and business of the 7th Respondent until the Attorney General has certified that it has satisfactorily conducted human rights diligence pursuant to the United Nations Principles on Business and Human Rights and remedied the grievances of the Petitioners arising from the activities and operations of the 6th and 7th Respondents;
iii. Pending the inter partes hearing of this Application/Petition, this Court be pleased to issue a conservatory order restraining the 4th and 5th Respondents, whether by themselves, their officers, agents or servants, from approving, sanctioning, authorizing, processing or in any manner facilitating the intended transfer, sale or disposal of the 6th Respondent's shareholding in the 7th Respondent;
iv. Pending the hearing and determination of this Application/Petition, this Court be pleased to issue an order preserving the status quo in respect of the 6th Respondent's ownership, control and shareholding structure of the 7th Respondent;
v. Pending the inter partes hearing of this Application/Petition this Court be pleased to issue a conservatory order restraining the 1st, 6th and 7th Respondents, whether by themselves, their agents, officers, servants or any person acting on their behalf, from effecting, implementing, completing, or in any manner proceeding with the intended transfer, sale, disposal or alienation of the 6th Respondent's shareholding in the 7th Respondent (East African Breweries Limited);
vi. Pending the hearing and determination of this Petition, an order of mandatory injunction be issued to compel the 2nd Respondent to appoint a chairperson of the Competition Tribunal in accordance with Section 71 of the Competition Act;
vii. Pending the appointment of the Chairperson of the Competition Tribunal, the Court be pleased to prohibit the 5th Respondent from approving the transaction for the transfer/sale of shares in the 7th Respondent between the 1st and 6th Respondents;
viii. Pending the hearing and determination of this Petition, the Court be pleased to issue an order of mandatory injunction to hear, determine and adjudicate upon the first Petitioner's grievances and complaints against the 6th and 7th Respondents set out in the First Petitioner's letter dated 17th March 2026;
ix. Pending hearing and determination of this Petition, the Court be pleased to issue an order of mandatory injunction to compel the 5th Respondent to hear, determine and adjudicate upon the grievances and complaints of the 1st Petitioner set out in its letter dated 12th January, 2026;
x. Pending hearing and determination of this Petition an order of mandatory injunction be issued to compel the Hon. Attorney General, the 3rd Respondent herein, to ensure that the 1st and 6th Respondents have conducted a human rights due diligence in accordance with the United Nations' Guiding Principles on Business and Human Rights and to submit a report to this Court within Thirty (30) days of the said order;
xi. The costs of this Application be provided for; and
xii. Such further or other orders be granted as this Court may deem just and expedient in the circumstances.
4. The Application is based on the supporting affidavit of the 1st Petitioner’s General Manager, Kevin John Njuguna, the grounds on the face of the application, and a further affidavit sworn on 20th May 2026 by its Director, Sammy Maina Kamau.
5. The 1st Petitioner is a construction and civil engineering company which undertakes various projects in Kenya. The 1st Petitioner’s case is that between October 2017 and March 2018, it entered into three construction contracts with the 1st Interested Party for the execution of civil works relating to the development, expansion, construction, and refurbishment of a brewery plant in Kisumu City. The contracts, which were executed under the Joint Building Council Agreement and Conditions of Contract for Building Works, were signed on 31st October 2017, 15th February 2018, and 27th March 2018, respectively. This project was dubbed ‘Project Nafasi’.
6. According to the Petitioners, although the agreements were formally entered into with the 1st Interested Party, the project was implemented, supervised, and coordinated by personnel and representatives associated with the 6th Respondent and its affiliates.
7. The 1st Petitioner avers that it completed and handed over the contracted works in accordance with the contractual specifications and project timelines. However, disputes subsequently arose between it and the 1st Interested Party concerning the certification of completed works, variations to the scope of work and the recovery of certain project-related costs allegedly outstanding under the contracts. The 1st Petitioner contends that efforts at an amicable settlement were made through a demand letter dated 7th January 2020, seeking payment of Kes. 163,393,574/-, which efforts did not yield any response, prompting the commencement of arbitration proceedings pursuant to Clause 45 of the Agreement and Conditions of Contract for Building Works, with an arbitrator being appointed by the Chairman of the Architectural Association of Kenya.
8. During the arbitral proceedings, it is claimed that disputes arose between the 1st Petitioner and 6th Respondent regarding various aspects of the implementation of the project and the conduct of its representatives. In light of this, it lodged a complaint with the 5th Respondent on 12th January 2026, alleging, among other matters, sexual harassment, unconscionable business conduct, and irregularities in the manner in which the project had been undertaken; therefore, it requested that the Authority investigate the conduct of the 6th and 7th Respondents. The 5th Respondent, after conducting a preliminary assessment, informed the 1st Petitioner by a letter dated 18th February 2026 that the issues raised fell outside its statutory mandate under the Competition Act and that no investigation would be undertaken. Aggrieved by that decision, the 1st Petitioner sought reconsideration through a letter dated 18th March 2026 and requested a formal hearing, however contends that no response was received.
9. The 1st Petitioner avers that they were entitled to challenge the 5th Respondent’s decision before the Competition Tribunal. The Tribunal is presently incapable of hearing appeals owing to the absence of a duly appointed Chairperson. They assert that the 2nd Respondent's failure to appoint a Chairperson has rendered the Tribunal non-functional, thereby denying them an effective statutory remedy and a right of appeal.
10. In like fashion, the 1st Petitioner reported the 6th and 7th Respondents’ alleged human rights violations to the 4th Respondent vide a letter dated 17th March 2026, but no action had been taken on their complaints by the time the Petition was filed.
11. The 1st Petitioner stated that it was concerned because the 6th Respondent is in the process of exiting East Africa, having initiated a share transfer of its shareholding in the 7th Respondent to the 1st Respondent. Additionally, it is contended that the conduct of the said Respondents is inconsistent with and in breach of the United Nations Guiding Principles on Business and Human Rights, in that they failed to comply with the applicable principles and obligations thereunder before proceeding with the transfer.
12. The 1st Petitioner is apprehensive that if the transfer is completed before its grievances are addressed, the intended appeal before the Competition Tribunal and this Petition will be rendered nugatory, leaving it without a remedy. Consequently, the Petitioners have moved this Court seeking intervention to protect their constitutional rights.
Respondents’ Responses
13. Although they were served the 2nd, 3rd and 4th Respondents did not file formal responses to the Petition. Their counsels, Mr Weche and Mr Minofu, however, took part in the oral hearings and made presentations to this Court.
1st Respondent
14. The 1st Respondent contended in its response, filed under protest, that this Court had not assumed jurisdiction over it as it is a Japanese company that does not conduct business in Kenya. It was urged that the Petitioners ought to have sought leave of the Court before purporting to serve them. Its counsel stated that, without the Petitioners' compliance with the Civil Procedure Rules on service of process on foreign companies, this Court lacked jurisdiction over the 1st Respondent. Thus, it prayed that it be struck out of these proceedings.
5th Respondent
15. In reply to the Application, the 5th Respondent filed a Notice of Preliminary Objection dated 19th May 2026 on the basis that:
i. This Court lacks jurisdiction to hear this matter on account of:
ii. Offending the doctrine of exhaustion: Section 40 of the Competition Act, Cap 504 has an elaborate appeal mechanism for an undertaking aggrieved by the 5th Respondent’s decision which is to file appeal to the Competition Tribunal within 30 days of receiving the Authority’s decision and a further appeal to the High Court within 30 days of receiving the Competition Tribunal’s decision, which appeal shall be final;
iii. The Petitioner’s cause of action against the 5th Respondent is barred by effluxion of time, being based on a grievance against its decision. This is by dint of section 40(1) of the Competition Act, as read with regulations 15(1) and 15(2) of the Competition Tribunal (Procedure) Rules;
iv. Section 9(2) of the Fair Administrative Action Act, Cap 7L 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;
v. The Petition as filed violates the doctrine of constitutional avoidance;
vi. The Petition as filed is bad in law, an abuse of the process of this Court and is barred by the doctrine of issue estoppel;
vii. In this regard, this Court is consequently dispossessed of jurisdiction to hear and determine the Notice of Motion application and Petition, both dated 8th May 2026 and to issue the Orders sought; and
viii. The Petitioners’ Notice of Motion application and Petition, both dated 8th May 2026, should thus be dismissed with costs for being frivolous, vexatious and an abuse of the court process.
16. The 5th Respondent opposed the motion through a Replying Affidavit sworn on 19th May 2026 by its Manager of the Mergers and Acquisitions Department, Raphael Mburu. The said deponent stated that, pursuant to Part IV of the Competition Act, it is mandated to assess and determine proposed mergers that meet the thresholds set out in the Merger Threshold Guidelines under the First Schedule of the Competition (General) Rules, 2010. It is deposed that, by correspondence dated 12th January 2026, the Petitioners sought its intervention regarding their grievances against the 6th Respondent before the 6th Respondent exited the jurisdiction of the Kenyan courts and regulatory authorities.
17. It was stated that, under Rule 34(3) of the Competition (General) Rules, 2019, a preliminary assessment must be undertaken to determine whether a complaint warrants a full investigation. Upon conducting such an assessment, it found that the Petitioners’ complaint did not disclose any competition concerns falling within its statutory mandate under the Competition Act. These findings were communicated to the 1st Petitioner by a letter dated 18th February 2026. It is further deposed that, by a subsequent letter dated 18th March 2026, the 1st Petitioner accused the 5th Respondent of abdicating its jurisdiction for failing to convene a formal hearing to receive evidence and submissions.
18. Notwithstanding this contention, the 5th Respondent avers that the 1st Petitioner was thereafter invited to submit information relevant to the transaction for consideration in its determination of the proposed merger between the 1st and 6th Respondents. In those circumstances, it is argued that the 1st Petitioner is estopped from seeking to restrain the 5th Respondent from discharging its statutory mandate, as such conduct amounts to approbation and reprobation of the merger review process.
19. The 5th Respondent further contends that, upon receipt of its prior decision, the 1st Petitioner was required to challenge the same through the statutory appellate mechanism provided under section 40 of the Competition Act, read together with Rule 15(2) of the Competition Tribunal (Procedure) Rules, 2017, which procedure was not exhausted. It also emphasized that it is a distinct entity from the Competition Tribunal.
20. In view of the foregoing, the 5th Respondent asserted that the Petitioners have not established a prima facie case with a likelihood of success to justify the grant of conservatory orders. It maintained that the Petitioners’ apprehension of an adverse decision in relation to the share transfer is premature and does not constitute sufficient grounds for such relief. Further, it was contended that the orders sought are contrary to public interest, being that merger assessments are time bound under section 44(1)(a) of the Competition Act and must be concluded within 60 days of notification. It is argued, therefore, that the grant of the orders would occasion a direct and unlawful breach of its statutory obligations.
21. The 5th Respondent relied on the decision of Mwamuye, J, in the case of Bia Tosha Distributors v Kenya Breweries Limited & 4 others [2026] KEHC 4798 (KLR), arguing that the issue of conservatory orders had already been addressed therein, and hence the present application amounts to an abuse of the court process. Finally, it faults the mandatory orders sought against it on the ground that they are final and require a clear and unequivocal case, which the Petitioners have failed to establish.
6th Respondent
22. Rebutting the Petition and Application, the 6th Respondent filed its Grounds of Opposition dated 19th May 2026 on the premise that:
i. The Petition and the Petitioner's Notice of Motion are sub judice, misconceived and an abuse of the process of this Court to the extent that they raise matters that are directly and substantially in issue in other pending proceedings involving substantially the same factual matrix, including:
a) The arbitration between the 1st Petitioner and the 1st Interested Party (the Arbitration Proceedings);
b) Constitutional Petition No. E029 of 2024 - Kenya Breweries Limited v. Mutinda Mutuku & 3 others (the Constitutional Proceedings);
c) Commercial Civil Suit No. E032 of 2026; Jilk Construction Company Limited v. Diageo PLC & Others (the Commercial Proceedings);
d) Miscellaneous Criminal Application No. El 110 of 2026 -Jilk Construction Company Limited & Others v. Diageo PLC & Others (the Criminal Proceedings).
ii. The Petitioners are inviting this Court to determine issues already pending before other fora and which are therefore barred by the doctrine of sub judice, including allegations concerning the construction works undertaken by the 1st Petitioner for the 1st Interested Party; sexual harassment; fabrication of evidence; provision of false information to the police; criminal liability; unfair business conduct; and prejudice said to arise from the 6th Respondent's proposed divestiture of its indirect shareholding in the 7th Respondent to the 1st Respondent (the Transaction);
iii. The Petition and the Application amount to forum shopping and a collateral attempt to obtain, through constitutional proceedings, relief that is already sought or capable of being sought in the various pending proceedings outlined at Ground No. 1 above, as well as any available statutory or administrative channels;
iv. The Petitioners have not disclosed any reasonable cause of action against the 6th Respondent arising from the Transaction. The Petition does not show that the Transaction assigns, novates, transfers, extinguishes or otherwise prejudices any alleged claim or remedy available to the Petitioners against any other proper party;
v. The Petition does not identify any legal obligation requiring the 6th Respondent to conduct an investigation or prepare a report on human rights violations, much less as a condition precedent to completion of the Transaction, to conduct an investigation or prepare a report into the alleged human rights violations. The United Nations Guiding Principles on Business and Human Rights are merely soft law, are not binding, do not create new international law obligations, and cannot be converted into a transaction-stopping obligation against the 6th Respondent;
vi. The Petitioners' complaint before the 5th Respondent concerns matters outside the 5th Respondent's statutory mandate. In addition, the Petition is an abuse of the process insofar as it seeks substantially the same regulatory outcome in this Petition by recasting it as a constitutional challenge to the alleged absence of a Chairperson of the Competition Tribunal (which is denied), or as a basis for restraining regulatory approval or implementation of a shareholder-level transaction;
vii. Further, and in any event, the Petitioners have wholly failed to demonstrate the impediment to lodging an official appeal before the Competition Tribunal within the statutory 30-day period, even if the hearing of any such appeal had to await the Competition Tribunal being properly constituted;
viii. This Court lacks jurisdiction to review the 5th Respondent's decision or exercise supervisory jurisdiction over it. The proper remedy lies in an appeal to the Competition Tribunal under Section 40(1) of the Competition Act. The Petitioners cannot circumvent that statutory framework by recharacterizing their dissatisfaction as a constitutional violation by the 6th Respondent. Nor does the alleged absence of a Chairperson of the Competition Tribunal justify transaction-stopping relief against the 6th Respondent, which has no statutory role in that appointment;
ix. Without prejudice to Grounds No. 6, 7 and 8 above, the overlap with the commercial proceedings is not limited to monetary relief. The Amended Plaint in the Commercial Proceedings also seeks relief directed at the 5th Respondent's decision-making process, including a mandatory injunction compelling the 5th Respondent to take account of the judgment eventually delivered within those proceedings. The Petitioners are therefore attempting, through this Petition, to reopen and repackage regulatory relief already being pursued in the commercial proceedings;
x. The Petitioners have not pleaded, with any degree of specificity, or at all, a legal or factual nexus between the alleged grievances and the drastic orders sought against the 1st and 6th Respondents with respect to the Transaction. The relief sought is therefore disjointed from the underlying cause of action, is speculative, disproportionate, and legally unsustainable;
xi. The Petitioners are seeking final, mandatory and far-reaching orders at an interlocutory stage, including orders that would impermissibly compel the 6th Respondent's continued ownership of the 7th Respondent, restrain implementation of the transaction, interfere with ongoing statutory and regulatory processes, and compel executive action in relation to the Competition Tribunal. Those orders are not available on the basis of the case as pleaded against the 6th Respondent;
xii. The orders sought against the 6th Respondent in connection with the transaction are an impermissible assault on the 6th Respondent's property rights as enshrined in Article 40 of the Constitution;
xiii. The Petitioners have failed to satisfy the threshold for invoking the constitutional jurisdiction of this Court against the 6th Respondent as the Petition is framed around private, contractual, arbitral, commercial, regulatory and criminal allegations that are already the subject of the other proceedings outlined at Ground No. 1 above;
xiv. The Petition and the Application offend the principles of constitutional avoidance, exhaustion of available remedies, proportionality, finality, and orderly administration of justice; and
xv. The Petition and the Application are therefore incompetent, vexatious and an abuse of the process of this Court insofar as they seek relief against the 6th Respondent.
23. The 6th Respondent also opposed both the Petition and the application through a Replying Affidavit sworn on the same date by its Legal Counsel, Jessica Carrie Thompson. The 6th Respondent contended that the dispute before the Court principally concerns the Petitioners’ attempt to obtain orders restraining and interfering with a major shareholder transaction, notwithstanding that the Petition does not primarily arise from or concern that transaction.
24. Ms Thomson deposed that the dispute stems back to the construction contract relating to Project Nafasi between the 1st Petitioner and the 1st Interested Party, which subsequently gave rise to arbitral proceedings commenced in 2020. It is further deposed that the 1st Interested Party later instituted Constitutional Petition No. E029 of 2024, in which conservatory orders were issued staying or suspending the publication and delivery of the arbitral award. Following the 6th Respondent’s public notice dated 17th December 2025, the Petitioners demanded that provision be made for the 1st Petitioner’s claim, ranging between Kes 2.4 and Kes 2.5 billion.
25. She stated that by a response dated 6th January 2026, the 1st Interested Party’s advocates advised that the proposed transaction was a parent-company shareholding transaction which neither affected the legal status, obligations, nor operations of the 1st Interested Party or the 7th Respondent, and further that the contracts forming the subject of the arbitral proceedings were between the 1st Petitioner and the 1st Interested Party. In reaction to this communication, the 1st Petitioner lodged a complaint before the 5th Interested Party, which ultimately determined that it lacked jurisdiction over the matter. The 6th Respondent maintains that the allegation that the Petitioners were denied a hearing is unfounded, noting that the 5th Respondent subsequently invited the 1st Petitioner on 18th May 2026 to ventilate any concerns regarding the transaction.
26. Ms Thomson further deposed that, contemporaneously, the 1st Petitioner instituted Commercial Civil Suit No. E032 of 2026, in which, among other reliefs, it sought orders compelling the 6th Respondent to allocate, reserve and deposit Kes 3 billion on account of the anticipated arbitral award and the proposed transaction. According to the 6th Respondent, the overlap between the present Petition and the commercial suit extends beyond monetary relief, as the amended Plaintiff in the commercial proceeding also seeks relief directed against the 5th Respondent. She therefore contended that the instant Petition seeks to re-litigate reliefs already being pursued elsewhere.
27. Reference was also made to the Criminal Miscellaneous Application No. E1110 of 2026, in which the 1st Petitioner seeks leave to institute and conduct a private prosecution against the 7th Respondent, the 1st Interested Party and others, on allegations substantially overlapping with those raised in the present Petition. The 1st Petitioner was accused of material non-disclosure for failing to disclose the existence of these parallel suits to the court.
28. In the 6th Respondent’s view, the Petition does not disclose a genuine constitutional grievance but is instead intended to exert pressure for settlement. It is further argued that the Petitioners failed to satisfy the threshold for the grant of the interim reliefs sought. The 6th Respondent contends that the orders sought are mandatory and final in nature and therefore attract a higher threshold than that applicable to ordinary conservatory relief.
29. The 6th Respondent pointed out that the Petition seeks, among other orders, to restrain the sale of the 6th Respondent’s shareholding in the 7th Respondent to the 1st Respondent, to restrain regulatory steps relating to the transaction, to preserve the 6th Respondent’s ownership and control of the 7th Respondent, to compel the appointment of a Chairperson of the Competition Tribunal, to compel the 5th Respondent to hear the 1st Petitioner’s grievances and to compel the 3rd Respondent to supervise human rights due diligence.
30. The 6th Respondent further stated that the capital markets regulators in Kenya, Tanzania and Uganda had already granted the requisite exemptions from mandatory takeover requirements in relation to the proposed acquisition by the 1st Respondent, rendering the issue moot and overtaken by events.
31. The 6th Respondent also argued that the Petition fails to establish a prima facie case, there being no pleaded and evidential nexus between the grievances advanced by the Petitioners and the transaction sought to be restrained. It is contended that the 1st Petitioner had erroneously assumed that the shareholding transaction between the 6th Respondent and the 1st Respondent could serve as security for its dispute with the 1st Interested Party. Reliance was placed on the decision of the Court in Bia Tosha Distributors v Kenya Breweries Limited & 4 others [2026] KEHC 4798 (KLR), where the Court declined to interfere with a commercial transaction and observed that public interest favours legitimate commercial transactions proceeding, subject to regulatory oversight, and that interlocutory judicial interference with such transactions would send a negative signal to markets and foreign investors. The 6th Respondent maintained that the same reasoning applies to the present case.
32. Regarding the United Nations Guiding Principles on Business and Human Rights, the 6th Respondent asserted that the Principles are not legally binding and do not create obligations in the manner suggested by the Petitioners. It was argued that the Principles emphasize the need for disputes to be resolved before the appropriate forums and do not support litigants bypassing specialized courts, statutory appellate mechanisms or pending proceedings in order to obtain interlocutory orders, and the freezing private commercial transactions based on vague and unparticularized allegations. In any event, the 6th Respondent contends that the Petitioners had not presented any credible, specific or transaction-linked evidence demonstrating non-compliance with any human rights obligations that would justify restraining a transaction of such magnitude.
33. The 6th Respondent further maintains that the reliefs sought are final in nature and unavailable at this stage. It is also argued that the Petitioners had failed to establish any legal or factual basis for compelling the 6th Respondent to remain an indirect shareholder in the 7th Respondent pending the resolution of grievances unrelated to the proposed transaction. The 6th Respondent, therefore, urged that the Petitioners’ grievances ought to be determined in the appropriate forums, where proceedings are already pending.
7th Respondent
34. The 7th Respondent filed a Notice of Preliminary Objection dated 13th May 2026 opposing the Application on the following grounds:
i. This Court and the Competition Tribunal lack jurisdiction pursuant to Articles 162(2)(a) and 165(5)(b) of the Constitution, as read together with Section 12 of the Employment and Labour Relations Court Act, to hear and determine the disputes pleaded in the Petition, the substratum whereof concerns employment and labour relations matters and alleged breaches of Sections 5 and 6 of the Employment Act, 2007;
ii. This Court and the Competition Tribunal lack jurisdiction to hear and determine the alleged sexual harassment claims, which are in any event the subject of pending proceedings in Chief Magistrate Criminal Case No. E1110 of 2026;
iii. The Petition offends the doctrine of constitutional avoidance insofar as it seeks to invoke this Court’s constitutional jurisdiction in respect of matters that fall squarely within specialized statutory and regulatory frameworks for which Parliament has prescribed adequate procedures, remedies and adjudicative mechanisms;
iv. The Petition discloses no cognizable cause of action arising under the Competition Act and identifies no appealable determination, actionable anti-competitive conduct or reviewable regulatory decision capable of properly invoking the jurisdiction of the Competition Tribunal;
v. The purported unavailability of the Competition Tribunal cannot, as a matter of law, vest this Court with jurisdiction where none otherwise exists, nor provid
[...truncated]
1. There are two applications before this Court. The first is the Notice of Motion application dated 8th May 2026, filed by the Petitioners. The second is the application of the 6th Respondent, whose Notice of Motion is dated 13th May 2026. The 5th and the 7th Respondents filed Notices of Preliminary Objection, contesting this Court’s jurisdiction to hear and determine the Petition and to grant conservatory orders. On its part, the 1st Respondent objected to the petition on the ground that it was not properly served and, for that reason, that this Court had not assumed jurisdiction over it.
2. This consolidated ruling concerns all these applications and objections. I will first set out the applications and the objections, and thereafter consider them in turn, beginning with those that raise jurisdictional questions. If this Court finds that it has jurisdiction, it will determine the Petitioners’ application on the merits.
Petitioners’ Application
3. Vide their said Notice of Motion Application on 8th May 2026, the petitioners seek the following orders:
i. Spent.
ii. Pending hearing and determination of this Application/Petition, the Court be pleased to issue a conservatory order restraining the 1st Respondent from taking over the assets and business of the 7th Respondent until the Attorney General has certified that it has satisfactorily conducted human rights diligence pursuant to the United Nations Principles on Business and Human Rights and remedied the grievances of the Petitioners arising from the activities and operations of the 6th and 7th Respondents;
iii. Pending the inter partes hearing of this Application/Petition, this Court be pleased to issue a conservatory order restraining the 4th and 5th Respondents, whether by themselves, their officers, agents or servants, from approving, sanctioning, authorizing, processing or in any manner facilitating the intended transfer, sale or disposal of the 6th Respondent's shareholding in the 7th Respondent;
iv. Pending the hearing and determination of this Application/Petition, this Court be pleased to issue an order preserving the status quo in respect of the 6th Respondent's ownership, control and shareholding structure of the 7th Respondent;
v. Pending the inter partes hearing of this Application/Petition this Court be pleased to issue a conservatory order restraining the 1st, 6th and 7th Respondents, whether by themselves, their agents, officers, servants or any person acting on their behalf, from effecting, implementing, completing, or in any manner proceeding with the intended transfer, sale, disposal or alienation of the 6th Respondent's shareholding in the 7th Respondent (East African Breweries Limited);
vi. Pending the hearing and determination of this Petition, an order of mandatory injunction be issued to compel the 2nd Respondent to appoint a chairperson of the Competition Tribunal in accordance with Section 71 of the Competition Act;
vii. Pending the appointment of the Chairperson of the Competition Tribunal, the Court be pleased to prohibit the 5th Respondent from approving the transaction for the transfer/sale of shares in the 7th Respondent between the 1st and 6th Respondents;
viii. Pending the hearing and determination of this Petition, the Court be pleased to issue an order of mandatory injunction to hear, determine and adjudicate upon the first Petitioner's grievances and complaints against the 6th and 7th Respondents set out in the First Petitioner's letter dated 17th March 2026;
ix. Pending hearing and determination of this Petition, the Court be pleased to issue an order of mandatory injunction to compel the 5th Respondent to hear, determine and adjudicate upon the grievances and complaints of the 1st Petitioner set out in its letter dated 12th January, 2026;
x. Pending hearing and determination of this Petition an order of mandatory injunction be issued to compel the Hon. Attorney General, the 3rd Respondent herein, to ensure that the 1st and 6th Respondents have conducted a human rights due diligence in accordance with the United Nations' Guiding Principles on Business and Human Rights and to submit a report to this Court within Thirty (30) days of the said order;
xi. The costs of this Application be provided for; and
xii. Such further or other orders be granted as this Court may deem just and expedient in the circumstances.
4. The Application is based on the supporting affidavit of the 1st Petitioner’s General Manager, Kevin John Njuguna, the grounds on the face of the application, and a further affidavit sworn on 20th May 2026 by its Director, Sammy Maina Kamau.
5. The 1st Petitioner is a construction and civil engineering company which undertakes various projects in Kenya. The 1st Petitioner’s case is that between October 2017 and March 2018, it entered into three construction contracts with the 1st Interested Party for the execution of civil works relating to the development, expansion, construction, and refurbishment of a brewery plant in Kisumu City. The contracts, which were executed under the Joint Building Council Agreement and Conditions of Contract for Building Works, were signed on 31st October 2017, 15th February 2018, and 27th March 2018, respectively. This project was dubbed ‘Project Nafasi’.
6. According to the Petitioners, although the agreements were formally entered into with the 1st Interested Party, the project was implemented, supervised, and coordinated by personnel and representatives associated with the 6th Respondent and its affiliates.
7. The 1st Petitioner avers that it completed and handed over the contracted works in accordance with the contractual specifications and project timelines. However, disputes subsequently arose between it and the 1st Interested Party concerning the certification of completed works, variations to the scope of work and the recovery of certain project-related costs allegedly outstanding under the contracts. The 1st Petitioner contends that efforts at an amicable settlement were made through a demand letter dated 7th January 2020, seeking payment of Kes. 163,393,574/-, which efforts did not yield any response, prompting the commencement of arbitration proceedings pursuant to Clause 45 of the Agreement and Conditions of Contract for Building Works, with an arbitrator being appointed by the Chairman of the Architectural Association of Kenya.
8. During the arbitral proceedings, it is claimed that disputes arose between the 1st Petitioner and 6th Respondent regarding various aspects of the implementation of the project and the conduct of its representatives. In light of this, it lodged a complaint with the 5th Respondent on 12th January 2026, alleging, among other matters, sexual harassment, unconscionable business conduct, and irregularities in the manner in which the project had been undertaken; therefore, it requested that the Authority investigate the conduct of the 6th and 7th Respondents. The 5th Respondent, after conducting a preliminary assessment, informed the 1st Petitioner by a letter dated 18th February 2026 that the issues raised fell outside its statutory mandate under the Competition Act and that no investigation would be undertaken. Aggrieved by that decision, the 1st Petitioner sought reconsideration through a letter dated 18th March 2026 and requested a formal hearing, however contends that no response was received.
9. The 1st Petitioner avers that they were entitled to challenge the 5th Respondent’s decision before the Competition Tribunal. The Tribunal is presently incapable of hearing appeals owing to the absence of a duly appointed Chairperson. They assert that the 2nd Respondent's failure to appoint a Chairperson has rendered the Tribunal non-functional, thereby denying them an effective statutory remedy and a right of appeal.
10. In like fashion, the 1st Petitioner reported the 6th and 7th Respondents’ alleged human rights violations to the 4th Respondent vide a letter dated 17th March 2026, but no action had been taken on their complaints by the time the Petition was filed.
11. The 1st Petitioner stated that it was concerned because the 6th Respondent is in the process of exiting East Africa, having initiated a share transfer of its shareholding in the 7th Respondent to the 1st Respondent. Additionally, it is contended that the conduct of the said Respondents is inconsistent with and in breach of the United Nations Guiding Principles on Business and Human Rights, in that they failed to comply with the applicable principles and obligations thereunder before proceeding with the transfer.
12. The 1st Petitioner is apprehensive that if the transfer is completed before its grievances are addressed, the intended appeal before the Competition Tribunal and this Petition will be rendered nugatory, leaving it without a remedy. Consequently, the Petitioners have moved this Court seeking intervention to protect their constitutional rights.
Respondents’ Responses
13. Although they were served the 2nd, 3rd and 4th Respondents did not file formal responses to the Petition. Their counsels, Mr Weche and Mr Minofu, however, took part in the oral hearings and made presentations to this Court.
1st Respondent
14. The 1st Respondent contended in its response, filed under protest, that this Court had not assumed jurisdiction over it as it is a Japanese company that does not conduct business in Kenya. It was urged that the Petitioners ought to have sought leave of the Court before purporting to serve them. Its counsel stated that, without the Petitioners' compliance with the Civil Procedure Rules on service of process on foreign companies, this Court lacked jurisdiction over the 1st Respondent. Thus, it prayed that it be struck out of these proceedings.
5th Respondent
15. In reply to the Application, the 5th Respondent filed a Notice of Preliminary Objection dated 19th May 2026 on the basis that:
i. This Court lacks jurisdiction to hear this matter on account of:
ii. Offending the doctrine of exhaustion: Section 40 of the Competition Act, Cap 504 has an elaborate appeal mechanism for an undertaking aggrieved by the 5th Respondent’s decision which is to file appeal to the Competition Tribunal within 30 days of receiving the Authority’s decision and a further appeal to the High Court within 30 days of receiving the Competition Tribunal’s decision, which appeal shall be final;
iii. The Petitioner’s cause of action against the 5th Respondent is barred by effluxion of time, being based on a grievance against its decision. This is by dint of section 40(1) of the Competition Act, as read with regulations 15(1) and 15(2) of the Competition Tribunal (Procedure) Rules;
iv. Section 9(2) of the Fair Administrative Action Act, Cap 7L 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;
v. The Petition as filed violates the doctrine of constitutional avoidance;
vi. The Petition as filed is bad in law, an abuse of the process of this Court and is barred by the doctrine of issue estoppel;
vii. In this regard, this Court is consequently dispossessed of jurisdiction to hear and determine the Notice of Motion application and Petition, both dated 8th May 2026 and to issue the Orders sought; and
viii. The Petitioners’ Notice of Motion application and Petition, both dated 8th May 2026, should thus be dismissed with costs for being frivolous, vexatious and an abuse of the court process.
16. The 5th Respondent opposed the motion through a Replying Affidavit sworn on 19th May 2026 by its Manager of the Mergers and Acquisitions Department, Raphael Mburu. The said deponent stated that, pursuant to Part IV of the Competition Act, it is mandated to assess and determine proposed mergers that meet the thresholds set out in the Merger Threshold Guidelines under the First Schedule of the Competition (General) Rules, 2010. It is deposed that, by correspondence dated 12th January 2026, the Petitioners sought its intervention regarding their grievances against the 6th Respondent before the 6th Respondent exited the jurisdiction of the Kenyan courts and regulatory authorities.
17. It was stated that, under Rule 34(3) of the Competition (General) Rules, 2019, a preliminary assessment must be undertaken to determine whether a complaint warrants a full investigation. Upon conducting such an assessment, it found that the Petitioners’ complaint did not disclose any competition concerns falling within its statutory mandate under the Competition Act. These findings were communicated to the 1st Petitioner by a letter dated 18th February 2026. It is further deposed that, by a subsequent letter dated 18th March 2026, the 1st Petitioner accused the 5th Respondent of abdicating its jurisdiction for failing to convene a formal hearing to receive evidence and submissions.
18. Notwithstanding this contention, the 5th Respondent avers that the 1st Petitioner was thereafter invited to submit information relevant to the transaction for consideration in its determination of the proposed merger between the 1st and 6th Respondents. In those circumstances, it is argued that the 1st Petitioner is estopped from seeking to restrain the 5th Respondent from discharging its statutory mandate, as such conduct amounts to approbation and reprobation of the merger review process.
19. The 5th Respondent further contends that, upon receipt of its prior decision, the 1st Petitioner was required to challenge the same through the statutory appellate mechanism provided under section 40 of the Competition Act, read together with Rule 15(2) of the Competition Tribunal (Procedure) Rules, 2017, which procedure was not exhausted. It also emphasized that it is a distinct entity from the Competition Tribunal.
20. In view of the foregoing, the 5th Respondent asserted that the Petitioners have not established a prima facie case with a likelihood of success to justify the grant of conservatory orders. It maintained that the Petitioners’ apprehension of an adverse decision in relation to the share transfer is premature and does not constitute sufficient grounds for such relief. Further, it was contended that the orders sought are contrary to public interest, being that merger assessments are time bound under section 44(1)(a) of the Competition Act and must be concluded within 60 days of notification. It is argued, therefore, that the grant of the orders would occasion a direct and unlawful breach of its statutory obligations.
21. The 5th Respondent relied on the decision of Mwamuye, J, in the case of Bia Tosha Distributors v Kenya Breweries Limited & 4 others [2026] KEHC 4798 (KLR), arguing that the issue of conservatory orders had already been addressed therein, and hence the present application amounts to an abuse of the court process. Finally, it faults the mandatory orders sought against it on the ground that they are final and require a clear and unequivocal case, which the Petitioners have failed to establish.
6th Respondent
22. Rebutting the Petition and Application, the 6th Respondent filed its Grounds of Opposition dated 19th May 2026 on the premise that:
i. The Petition and the Petitioner's Notice of Motion are sub judice, misconceived and an abuse of the process of this Court to the extent that they raise matters that are directly and substantially in issue in other pending proceedings involving substantially the same factual matrix, including:
a) The arbitration between the 1st Petitioner and the 1st Interested Party (the Arbitration Proceedings);
b) Constitutional Petition No. E029 of 2024 - Kenya Breweries Limited v. Mutinda Mutuku & 3 others (the Constitutional Proceedings);
c) Commercial Civil Suit No. E032 of 2026; Jilk Construction Company Limited v. Diageo PLC & Others (the Commercial Proceedings);
d) Miscellaneous Criminal Application No. El 110 of 2026 -Jilk Construction Company Limited & Others v. Diageo PLC & Others (the Criminal Proceedings).
ii. The Petitioners are inviting this Court to determine issues already pending before other fora and which are therefore barred by the doctrine of sub judice, including allegations concerning the construction works undertaken by the 1st Petitioner for the 1st Interested Party; sexual harassment; fabrication of evidence; provision of false information to the police; criminal liability; unfair business conduct; and prejudice said to arise from the 6th Respondent's proposed divestiture of its indirect shareholding in the 7th Respondent to the 1st Respondent (the Transaction);
iii. The Petition and the Application amount to forum shopping and a collateral attempt to obtain, through constitutional proceedings, relief that is already sought or capable of being sought in the various pending proceedings outlined at Ground No. 1 above, as well as any available statutory or administrative channels;
iv. The Petitioners have not disclosed any reasonable cause of action against the 6th Respondent arising from the Transaction. The Petition does not show that the Transaction assigns, novates, transfers, extinguishes or otherwise prejudices any alleged claim or remedy available to the Petitioners against any other proper party;
v. The Petition does not identify any legal obligation requiring the 6th Respondent to conduct an investigation or prepare a report on human rights violations, much less as a condition precedent to completion of the Transaction, to conduct an investigation or prepare a report into the alleged human rights violations. The United Nations Guiding Principles on Business and Human Rights are merely soft law, are not binding, do not create new international law obligations, and cannot be converted into a transaction-stopping obligation against the 6th Respondent;
vi. The Petitioners' complaint before the 5th Respondent concerns matters outside the 5th Respondent's statutory mandate. In addition, the Petition is an abuse of the process insofar as it seeks substantially the same regulatory outcome in this Petition by recasting it as a constitutional challenge to the alleged absence of a Chairperson of the Competition Tribunal (which is denied), or as a basis for restraining regulatory approval or implementation of a shareholder-level transaction;
vii. Further, and in any event, the Petitioners have wholly failed to demonstrate the impediment to lodging an official appeal before the Competition Tribunal within the statutory 30-day period, even if the hearing of any such appeal had to await the Competition Tribunal being properly constituted;
viii. This Court lacks jurisdiction to review the 5th Respondent's decision or exercise supervisory jurisdiction over it. The proper remedy lies in an appeal to the Competition Tribunal under Section 40(1) of the Competition Act. The Petitioners cannot circumvent that statutory framework by recharacterizing their dissatisfaction as a constitutional violation by the 6th Respondent. Nor does the alleged absence of a Chairperson of the Competition Tribunal justify transaction-stopping relief against the 6th Respondent, which has no statutory role in that appointment;
ix. Without prejudice to Grounds No. 6, 7 and 8 above, the overlap with the commercial proceedings is not limited to monetary relief. The Amended Plaint in the Commercial Proceedings also seeks relief directed at the 5th Respondent's decision-making process, including a mandatory injunction compelling the 5th Respondent to take account of the judgment eventually delivered within those proceedings. The Petitioners are therefore attempting, through this Petition, to reopen and repackage regulatory relief already being pursued in the commercial proceedings;
x. The Petitioners have not pleaded, with any degree of specificity, or at all, a legal or factual nexus between the alleged grievances and the drastic orders sought against the 1st and 6th Respondents with respect to the Transaction. The relief sought is therefore disjointed from the underlying cause of action, is speculative, disproportionate, and legally unsustainable;
xi. The Petitioners are seeking final, mandatory and far-reaching orders at an interlocutory stage, including orders that would impermissibly compel the 6th Respondent's continued ownership of the 7th Respondent, restrain implementation of the transaction, interfere with ongoing statutory and regulatory processes, and compel executive action in relation to the Competition Tribunal. Those orders are not available on the basis of the case as pleaded against the 6th Respondent;
xii. The orders sought against the 6th Respondent in connection with the transaction are an impermissible assault on the 6th Respondent's property rights as enshrined in Article 40 of the Constitution;
xiii. The Petitioners have failed to satisfy the threshold for invoking the constitutional jurisdiction of this Court against the 6th Respondent as the Petition is framed around private, contractual, arbitral, commercial, regulatory and criminal allegations that are already the subject of the other proceedings outlined at Ground No. 1 above;
xiv. The Petition and the Application offend the principles of constitutional avoidance, exhaustion of available remedies, proportionality, finality, and orderly administration of justice; and
xv. The Petition and the Application are therefore incompetent, vexatious and an abuse of the process of this Court insofar as they seek relief against the 6th Respondent.
23. The 6th Respondent also opposed both the Petition and the application through a Replying Affidavit sworn on the same date by its Legal Counsel, Jessica Carrie Thompson. The 6th Respondent contended that the dispute before the Court principally concerns the Petitioners’ attempt to obtain orders restraining and interfering with a major shareholder transaction, notwithstanding that the Petition does not primarily arise from or concern that transaction.
24. Ms Thomson deposed that the dispute stems back to the construction contract relating to Project Nafasi between the 1st Petitioner and the 1st Interested Party, which subsequently gave rise to arbitral proceedings commenced in 2020. It is further deposed that the 1st Interested Party later instituted Constitutional Petition No. E029 of 2024, in which conservatory orders were issued staying or suspending the publication and delivery of the arbitral award. Following the 6th Respondent’s public notice dated 17th December 2025, the Petitioners demanded that provision be made for the 1st Petitioner’s claim, ranging between Kes 2.4 and Kes 2.5 billion.
25. She stated that by a response dated 6th January 2026, the 1st Interested Party’s advocates advised that the proposed transaction was a parent-company shareholding transaction which neither affected the legal status, obligations, nor operations of the 1st Interested Party or the 7th Respondent, and further that the contracts forming the subject of the arbitral proceedings were between the 1st Petitioner and the 1st Interested Party. In reaction to this communication, the 1st Petitioner lodged a complaint before the 5th Interested Party, which ultimately determined that it lacked jurisdiction over the matter. The 6th Respondent maintains that the allegation that the Petitioners were denied a hearing is unfounded, noting that the 5th Respondent subsequently invited the 1st Petitioner on 18th May 2026 to ventilate any concerns regarding the transaction.
26. Ms Thomson further deposed that, contemporaneously, the 1st Petitioner instituted Commercial Civil Suit No. E032 of 2026, in which, among other reliefs, it sought orders compelling the 6th Respondent to allocate, reserve and deposit Kes 3 billion on account of the anticipated arbitral award and the proposed transaction. According to the 6th Respondent, the overlap between the present Petition and the commercial suit extends beyond monetary relief, as the amended Plaintiff in the commercial proceeding also seeks relief directed against the 5th Respondent. She therefore contended that the instant Petition seeks to re-litigate reliefs already being pursued elsewhere.
27. Reference was also made to the Criminal Miscellaneous Application No. E1110 of 2026, in which the 1st Petitioner seeks leave to institute and conduct a private prosecution against the 7th Respondent, the 1st Interested Party and others, on allegations substantially overlapping with those raised in the present Petition. The 1st Petitioner was accused of material non-disclosure for failing to disclose the existence of these parallel suits to the court.
28. In the 6th Respondent’s view, the Petition does not disclose a genuine constitutional grievance but is instead intended to exert pressure for settlement. It is further argued that the Petitioners failed to satisfy the threshold for the grant of the interim reliefs sought. The 6th Respondent contends that the orders sought are mandatory and final in nature and therefore attract a higher threshold than that applicable to ordinary conservatory relief.
29. The 6th Respondent pointed out that the Petition seeks, among other orders, to restrain the sale of the 6th Respondent’s shareholding in the 7th Respondent to the 1st Respondent, to restrain regulatory steps relating to the transaction, to preserve the 6th Respondent’s ownership and control of the 7th Respondent, to compel the appointment of a Chairperson of the Competition Tribunal, to compel the 5th Respondent to hear the 1st Petitioner’s grievances and to compel the 3rd Respondent to supervise human rights due diligence.
30. The 6th Respondent further stated that the capital markets regulators in Kenya, Tanzania and Uganda had already granted the requisite exemptions from mandatory takeover requirements in relation to the proposed acquisition by the 1st Respondent, rendering the issue moot and overtaken by events.
31. The 6th Respondent also argued that the Petition fails to establish a prima facie case, there being no pleaded and evidential nexus between the grievances advanced by the Petitioners and the transaction sought to be restrained. It is contended that the 1st Petitioner had erroneously assumed that the shareholding transaction between the 6th Respondent and the 1st Respondent could serve as security for its dispute with the 1st Interested Party. Reliance was placed on the decision of the Court in Bia Tosha Distributors v Kenya Breweries Limited & 4 others [2026] KEHC 4798 (KLR), where the Court declined to interfere with a commercial transaction and observed that public interest favours legitimate commercial transactions proceeding, subject to regulatory oversight, and that interlocutory judicial interference with such transactions would send a negative signal to markets and foreign investors. The 6th Respondent maintained that the same reasoning applies to the present case.
32. Regarding the United Nations Guiding Principles on Business and Human Rights, the 6th Respondent asserted that the Principles are not legally binding and do not create obligations in the manner suggested by the Petitioners. It was argued that the Principles emphasize the need for disputes to be resolved before the appropriate forums and do not support litigants bypassing specialized courts, statutory appellate mechanisms or pending proceedings in order to obtain interlocutory orders, and the freezing private commercial transactions based on vague and unparticularized allegations. In any event, the 6th Respondent contends that the Petitioners had not presented any credible, specific or transaction-linked evidence demonstrating non-compliance with any human rights obligations that would justify restraining a transaction of such magnitude.
33. The 6th Respondent further maintains that the reliefs sought are final in nature and unavailable at this stage. It is also argued that the Petitioners had failed to establish any legal or factual basis for compelling the 6th Respondent to remain an indirect shareholder in the 7th Respondent pending the resolution of grievances unrelated to the proposed transaction. The 6th Respondent, therefore, urged that the Petitioners’ grievances ought to be determined in the appropriate forums, where proceedings are already pending.
7th Respondent
34. The 7th Respondent filed a Notice of Preliminary Objection dated 13th May 2026 opposing the Application on the following grounds:
i. This Court and the Competition Tribunal lack jurisdiction pursuant to Articles 162(2)(a) and 165(5)(b) of the Constitution, as read together with Section 12 of the Employment and Labour Relations Court Act, to hear and determine the disputes pleaded in the Petition, the substratum whereof concerns employment and labour relations matters and alleged breaches of Sections 5 and 6 of the Employment Act, 2007;
ii. This Court and the Competition Tribunal lack jurisdiction to hear and determine the alleged sexual harassment claims, which are in any event the subject of pending proceedings in Chief Magistrate Criminal Case No. E1110 of 2026;
iii. The Petition offends the doctrine of constitutional avoidance insofar as it seeks to invoke this Court’s constitutional jurisdiction in respect of matters that fall squarely within specialized statutory and regulatory frameworks for which Parliament has prescribed adequate procedures, remedies and adjudicative mechanisms;
iv. The Petition discloses no cognizable cause of action arising under the Competition Act and identifies no appealable determination, actionable anti-competitive conduct or reviewable regulatory decision capable of properly invoking the jurisdiction of the Competition Tribunal;
v. The purported unavailability of the Competition Tribunal cannot, as a matter of law, vest this Court with jurisdiction where none otherwise exists, nor provid
[...truncated]