1. This Ruling determines two related Applications. The 1 st Application seeks temporary and mandatory injunctive orders pending hearing and determination of the suit, and the 2 nd one seeks a finding of contempt of Court for alleged disobedience of interim injunctive orders issued earlier in this matter under the 1 st Application.
2. The suit was commenced by way of the Plaint dated 30/10/2025 filed through Messrs AKO Advocates , whereof the Plaintiff prayed for Judgment for a raft of up to 10 reliefs against the Defendant, including a permanent injunction, arising from what the Plaintiffs basically describes as the Defendant’s attempt to terminate the parties’ existing wine distributorship relationship. In summary therefore, the suit is an attempt to stop the Defendant from terminating the relationship, and appointing another distributor. There is also a prayer for payment of an amount of Kshs 150,000,000/- described as investments made by the Plaintiff in pursuance of the “distributorship agreement”, and also for Kshs 300,000,000/- as goodwill created by the Plaintiff for the Defendant for the business.
3. From the Pleadings, the Plaintiff and the Defendant, a South African wine manufacturer and exporter, had for about 5 years been engaged in an trading relationship, though no formal written contract exists, under which the Plaintiff distributed, marketed and sold the Defendant's wine products in Kenya. The Plaintiff's case is that an exclusive distributorship relationship arose by implication from the parties' conduct, and in particular from a letter dated 11/09/2020 in which the Defendant ended the arrangement it had with a prior distributor, and undertook to “deal directly” with the Plaintiff. The Plaintiff pleads that in reliance thereon, it invested over Kshs 150,000,000/- in personnel, distribution infrastructure, marketing activities, and warehousing, among others, and also built goodwill it estimates at over Kshs 300,000,000/-. The Plaintiff also asserts that its performance of the contract has been satisfactory and that it has a legitimate and reasonable expectation that the Defendant would compensate it for its efforts and investment and uphold the Plaintiff’s exclusive distributorship rights in Kenya. There is also no dispute that by the letter dated 15/10/2025, the Defendant “terminated” the relationship with effect from 1/11/2025, citing a limited product range, stock concerns, and “continuous payment concerns”. By its letter dated 16/10/2025, the Plaintiff disputed these grounds, asserting, inter alia , that its account stood at a nil balance.
4. Together with the Plaint, the Plaintiff also filed the Notice of Motion dated 30/10/2025 (1 st Application) seeking temporary injunctive orders restraining the Defendant, in the interim, from terminating the relationship, and also compelling the Defendant to “comply” with the distributorship arrangement, pending hearing and determination of the suit. The Application is supported by the Affidavit sworn by Anthony Kairu , who introduced himself as the Plaintiff’s General Manager. He basically reiterated the matters already captured above, and insisted that the Plaintiff had a “ legitimate and reasonable expectation that the distributorship relationship would last well over 10 years to justify this heavy investment ”.
5. At the ex parte stage, my sister Mongare, J ., certified the Application as urgent and granted an interim injunctive order pending hearing and determination of the Application. The order, initially granted on 30/10/2025, has since regularly been extended and is still in force.
6. The Defendant opposed the Application by way of the Replying Affidavit sworn on 15/12/2025 by Morné Koen , who introduced himself as the Defendant’s Sales Manager for Africa and the Middle East. The Affidavit is filed through Messrs Mwamuye Mzungu Solomon Advocates LLP . In the Affidavit, he agreed that the Defendant terminated its engagement with a previous distributor for the Kenyan market and began selling its wine directly to the Plaintiff. He however urged that there being no written agreement, the terms of parties’ engagement was strictly as per each respective purchase order, and it was thus always within the Defendant’s discretion whether to accept or refuse a purchase order placed by the Plaintiff. It was also deponed that the Defendant sold each consignment on credit terms to the Plaintiff, which had to make payment within 90 days from the date of the Bill of Lading irrespective of whether the Plaintiff had on-sold the wine or had been paid by clients. He explained that the reason for lack of a written agreement between the parties is that the relationship was not that of sole and exclusive distributorship, and also pointed out that the Plaintiff does not only sell the Defendant’s wine, but also a wide variety of liquor products sourced from other international manufacturers. He then asserted that the relationship was terminated because, among other reasons, the Defendant was not satisfied with the manner in which the Plaintiff was effecting sales of the wine, the Plaintiff's consistent failure to pay for wine purchased from the Defendant in breach of the 90-days agreed period to the extent that the Plaintiff’s account had to be placed on “on hold” from time to mine. Regarding the alleged investments made by the Plaintiff pursuant to the relationship, the Defendant averred that it never made any representations to the Plaintiff or conduct itself in a manner that required the Plaintiff to undertake any form of investment as alleged.
7. The Plaintiff then filed the Further Affidavit sworn on 10/04/2026 in which it maintained that exclusivity arose from the parties’ conduct, cited strong sales performance, and deponed that the last such arrears, of ZAR 225,360, was settled in full on 8/10/2025 before the termination letter thus leaving the account at a nil balance both at the time of termination and at the time filing this suit.
8. While the 1 st Application was still pending, the Plaintiff filed the 2 nd Notice of Motion dated 28/01/2026 (2 nd Application) seeking a finding of contempt of Court and committal to civil jail of the Defendant's directors and/or officers, or imposition of a fine against them. The grounds alleged were that the Defendant had, despite notifications and reminders, failed to fulfil purchase orders placed on 28/07/2025 for supply of wine, in wilful defiance of the temporary injunctive orders given herein on 30/10/2025. The Application is again supported by the Affidavit sworn by the said Anthony Kairu ., who deponed that the orders were served upon the Defendant via email on 31/10/20205 and also via courier on 7/11/2025, and that the Defendant’s subsequent act of appointing Advocates to represent it in this matter is sufficient proof that it received and was aware of the orders. He urged that the Defendant’s failure to honour the purchase orders has caused serious disruption to the Plaintiff’s operations as it is not able to supply its customers. The Defendant’s inaction and conduct was, as such, described as aimed at undermining and circumventing the Court order.
9. The Defendant opposed this 2 nd Application by way of the Replying Affidavit sworn by the said Morné Koen on 4/03/2026. He averred that the Plaintiff has not demonstrated what the terms of the distributorship agreement were upon which the purchase orders were allegedly to be fulfilled by the Defendant, nor are any such to be found in the Court order. He also asserted that the Plaintiff has not demonstrated that the Defendant has appointed or traded with any other distributor in the Kenyan market since the orders were given on 30/10/2025.
10. The parties then filed written Submissions. In support of the Application for temporary injunction, the Plaintiff filed the Submissions dated 10/04/2026, while the Defendant, in opposition, filed the Submissions dated 9/06/2026. Regarding the Application seeking a finding of contempt of Court, the Plaintiff filed the Submissions dated 15/03/2026, while the Defendant filed the Submissions dated 5/06/2026. Both parties basically reiterated the matters already recounted in their Affidavits above, save for citing authorities to support the various limbs of their arguments.
11. The Defendant however raised a new issue not mentioned in the Replying Affidavit, that the Application for contempt of Court was incompetent for want of applying for or obtaining prior leave under Section 5 of the Judicature Act . The Defendant also raised a second new issue that the Application is required to be served personally upon the persons sought to be committed, but in this case, it was only served upon the Defendant’s Counsel, not the alleged contemnors.
Determination
12. The issues that call for determination in this matter may be summarized as follows:
i) whether the Defendant should be restrained, by way of an interlocutory injunction, from terminating the distributorship relationship with the Plaintiff, and be compelled by a mandatory injury injunction, to comply with its terms, pending hearing and determination of this suit.
ii) Whether the Defendant should be found to be in contempt of Court for disobeying the interim orders given earlier in this matter.
13. Determination on whether to grant an interlocutory injunction is governed by Order 40 Rule 2 of the Civil Procedure Rules , which provides, in relevant part, as follows:
“In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right…”
14. The principles that apply in applications for injunctions were settled in the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358, in which it was held that an applicant must establish (i) existence of a prima facie case with a probability of success , (ii) that he will suffer irreparable injury which cannot adequately be compensated by damages , and (iii) that, if in doubt, the balance of convenience tilts in his favour .
15. It is also settled that, at this interlocutory stage, the Court should be slow to make final determinations on matters of fact arising from conflicting affidavit evidence. In Mbuthia v Jimba Credit Finance Corporation & Another [1988] KLR 1 , the Court of Appeal guided as follows:
“….............. the correct approach in dealing with an application for an interlocutory injunction is not to decide the issues of fact, but rather to weigh up the relevant strength of each side's propositions.”
16. The first limb for determination is therefore whether the Plaintiff has established a prima facie case . What constitutes “ a prima facie ” case was discussed in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR , in which the Court of Appeal held that it is “ a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter ”, and that “ a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the applicant's case upon trial ”.
17. Applying the above standard, I observe that both parties have exhibited correspondence and documentation demonstrating an active trading relationship of approximately 5 years. Indeed, the Defendant’s own letter of 11/09/2020 lends credence to the Plaintiff's assertion that the relationship was intended to be more than just a mere series of unconnected transactions. At the same time, the Defendant has presented a largely unchallenged documentary record showing that individual consignments were, always, the subject of individual purchase orders which the Defendant could either accept or decline, and conditioned on payment, at its own discretion, and that the Plaintiff's account, on substantial occasions, fell into in arrears well beyond the agreed 90 days credit terms. Whether those facts, taken together, disclose an implied exclusive distributorship of the kind the Plaintiff asserts, or no more than a just discretionary trading arrangement terminable at will as the Defendant asserts, is a matter of conflicting facts that this Court, for the reasons given in Mbuthia (supra) , is not entitled to resolve at this stage.
18. Although the Plaintiff describes itself as an “ exclusive distributor ” the documents on record weakens this claim of exclusivity. The relationship was never reduced to a formal agreement, exclusive or otherwise, so the question whether “ exclusivity ” is to be implied from conduct turns entirely on inference from correspondence which, as stated, cuts both ways and is not for resolution on Affidavit.
19. I understand the Plaintiff to be arguing that it had “ legitimate and reasonable expectation” that the relationship would endure long enough to allow for recoupment of its investment, relying on the Court of Appeal decision in Heineken East Africa Import Company Ltd & another v Maxam Ltd, Civil Appeal No. E403 & E404 of 2020 (Consolidated); [2024] KECA 625 (KLR) . In that case however, it was held that “legitimate expectation” is a public law doctrine requiring a representation by a public body, and has no place, without more, between private contracting parties. A narrower and distinct concept, “ reasonable expectation ”, may however properly find a cause of action in the ordinary law of contract where it arises from the contract's terms or the parties’ course of dealing, rather than a unilateral hope. What the Plaintiff however fails to disclose, whether deliberately or innocently, is that in the Heineken case, there was a formal written agreement clearly setting out the terms of the contract, timelines for performance and payments, and also expressly naming the applicant therein as the sole and “ exclusive ” distributor. What the Plaintiff also fails to disclose is that the Court declined, at the interlocutory stage, to stop the manufacturer from terminating the relationship and appointing a new distributor upon finding that the applicant’s loss could well be compensated by way of damages. Indeed, the Court eventually awarded the applicant such damages for unlawful termination of the distributorship but only after a full trial. The Heineken case is therefore of no assistance to the Plaintiff’s case. To the contrary, it substantially weakens the plea for grant of the temporary injunction.
20. While therefore, the Plaintiff may have shown an arguable grievance arising from the abrupt termination of a lucrative 5-year trading relationship, I am not satisfied that a strong case to the extent of meeting the threshold of what would constitute a prima facie case capable by itself of justifying grant of an interlocutory injunction has been disclosed at this stage.
21. Even assuming that a prima facie case has been demonstrated, still, the law does not confine the grant or refusal of an interlocutory injunction to only the question whether a prima facie case has been demonstrated. This was affirmed by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR , in the following terms:
“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially ….. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the [applicant] will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy … no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage.”
22. In respect of the second limb, the question of “ irreparable harm ”, the loss the Plaintiff alleges is partly expressed in precise pecuniary terms as an investment of “well over” Kshs 150,000,000/- and goodwill “estimated at more than” Kshs 300,000,000/-. The other claim is that “once a distributor’s market position has been lost and customers shift elsewhere, the resulting loss of goodwill and market presence cannot be easily restored by a subsequent award of damages”. A party able to place a figure on its claimed loss, and explain the basis of that figure, demonstrates that the loss is capable of computation and proof at trial, and is not of a kind that eludes monetary measurement. This position was also affirmed by the Court of Appeal in the case of Esso Kenya Ltd v Mark Makwata Okiya (1992) eKLR . Where therefore damages are capable of being measured with a fair degree of accuracy, the second condition in Giella , namely, “ irreparable harm ”, cannot always be said to have been met. Under these circumstances, I am not satisfied that the Plaintiff has shown “ irreparable ” injury of a kind that cannot adequately be remedied by an award of damages should it succeed at the trial in establishing that a binding distributorship existed and was wrongfully terminated.
23. It is settled that the three Giella conditions are not to be applied disjunctively, and that an applicant who fails on either the first or the second is, without more, not entitled to an interlocutory injunction (see Nguruman supra) . Nonetheless, for completeness, I will also address the third limb, namely, “ balance of convenience ”.
24. According to the Defendant, the Plaintiff's account had, on a number of occasions between 2021 and 2025, fallen into arrears beyond the agreed 90-day terms and had to be placed “on hold”. The Plaintiff's evidence, which the Defendant has not specifically controverted, is that the last such arrears, of ZAR 225,360 as at 6/10/2025, was settled in full on 8/10/2025, before the letter of termination, so that the account stood at a nil balance both when that letter was written and when this suit was filed. According to the Plaintiff therefore, the Defendant is not facing a live or current default and no weight should be placed on the “continuous payment concerns”. What remains material however, and is unaffected by the clearing of that balance, is the strong indication of the Defendant's retention of its contractual freedom, exercised throughout the relationship, independently of the state of the account, to accept or to decline individual purchase orders, at its own discretion. From this indication, compelling the Defendant, by injunction, to continue extending product supply and credit to the Plaintiff pending trial would, in my view, curtail that apparent freedom, on the strength of an arrangement whose alleged “ exclusive ” or binding character was never reduced into writing as a contract and as such, remains genuinely in dispute. All indication is that any prejudice to the Plaintiff flowing from refusal of the orders is, as I have found, capable of being made good in damages. Under these circumstances, I am satisfied that the “ balance of convenience ”, too, does not favour grant of the interlocutory injunction.
25. The Plaintiff additionally seeks a mandatory injunction compelling the Defendant to comply with the “terms” of the alleged distributorship agreement pending trial. As held by the Court of Appeal in case of Locabail International Finance Ltd v Agroexport & Another [1986] 1 All ER 901 , followed by the same Court in the case of Kenya Breweries Ltd & another v Washington O. Okeyo [2002] 1 EA 109 , mandatory injunction is an exceptional relief granted only where the case is clear and the Court is satisfied that such order is very necessary to achieve justice. In this case, given the serious doubts I have pointed out over the claim of an “ exclusive ” distributorship relationship, and the alleged terms thereof, I do not find this to be such a plain and clear case. Each case must be determined on its own facts but from the unique circumstances of this case, to compel the manufacturer to continue supplying the Plaintiff on terms neither party can presently identify with precision would, in substance, amount to pre-determining the very question the suit is brought to resolve. Further, restraining the manufacturer from terminating the relationship, in substance, compelling it to continue with the supply, would also require the Court’s supervision of performance of a contract whose terms are largely unclear. That relief must accordingly be declined.
26. Needless to state, my findings above do not in any way, prejudice or curtail the Plaintiff’s right to prove, at the trial, the existence of a binding “ exclusive ” distributorship agreement, if any, terms thereof, and any entitlement to damages arising therefrom, if any.
27. Turning to the 2 nd Application, contempt of Court in Kenya is governed by Section 5 of the Judicature Act (Cap. 8) , which provides as follows:
“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.”
28. The Defendant has raised the preliminary challenge that the Application is incompetent, both for want of prior leave to file it, and for want of personal service on the individual directors sought to be committed. As already pointed out, these matters were belatedly introduced for the first time in the Defendant’s final Submissions, long after all Affidavits had been filed and exchanged, directions taken, and after the Plaintiff had already filed its final Submissions. As such, the Plaintiff has not had a chance to respond to these new issues.
29. In any event, the question whether leave is required before filing an Application for contempt of Court is now, in my view, well settled. This is because the Court of Appeal, in the case of Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others (2014) eKLR , ruled, way back in 2014, that leave is not required before filing an application for contempt of court “if the committal proceedings relate directly to “ a breach of a judgment, court order, or formal undertaking ” . Although that ruling was in respect of a matter before the Court of Appeal, there is no reason why the same logic and reasoning should not apply mutatis mutandis to the practice in all other Courts. Even in the now unconstitutional-declared Contempt of Court Act, 2016 , courtesy of the decision of Mwita J (as he then was) rendered in the case of Kenya Human Rights Commission v Attorney General & another [2018] eKLR , the requirement to obtain leave had been confined strictly to only “ criminal contempt ” cases, and was never extended to “ civil contempt ” .
30. Further, in any event, guided by Article 159(2)(d) of the Constitution , and mindful that the Defendant was served with the Application, fully participated in the proceedings, and has not demonstrated any specific prejudice arising from the absence of obtaining prior leave before filing the application for contempt, I overrule the objection.
31. Regarding the absence of personal service upon the alleged contemnors, it is now also well settled that “ actual knowledge” or “awareness” of a court order now supersedes the strict requirement of personal service for contempt proceedings. While personal service remains the standard and ideal practice, Courts have repeatedly held that if an applicant can prove beyond reasonable doubt that the alleged contemnor had clear knowledge of the order and its terms, the strict requirement to prove personal service is dispensed with.
32. As established by the Court of Appeal in the case of Shimmers Plaza Limited vs National Bank of Kenya Limited (Civil Appeal No. 33 of 2012) [2015] KECA 945 (KLR) (Civ) (18 February 2015) (Ruling) , it is now settled law that “ knowledge ” of a Court order supersedes the need for “ personal service ”. In that case, the Court stated that “ this Court has slowly and gradually moved from the position that service of the order along with the penal notice must be personally served on a person before contempt can be proved …” .
33. Similarly, Lenaola J (as he then was) , held in the case of Basil Criticos Vs Attorney General and 8 Others [2012] eKLR that “... the law has changed and as it stands today knowledge supersedes personal service ..... where a party clearly acts and shows that he had knowledge of a Court Order; the strict requirement that personal service must be proved is rendered unnecessary ”
34. In this case, the Defendant has not denied that it was served with the Court order by way of both email and courier, and has also by its own Affidavit, confirmed full knowledge of the order. In light of the above, the insistence on personal service does not arise.
35. There is however another angle. The Application does not identify the specific persons at the Defendant company sought to be found to be in contempt of Court. Because contempt proceedings are quasi-criminal in nature and can lead to severe penalties such as imprisonment (committal to civil jail), Courts maintain an exceptionally high procedural threshold, thus, a generic order cannot, generally, be issued against a corporate office, or amorphous, or a generic-described entity since contempt attaches to a specific individual. As observed by Mogeni J , in the Environment and Land Court case of Njunu Farmers Co-operative Society v CKK Estates (1973) Limited & 4 others ([2025] KEELC 8569) , an application seeking to cite office holders for contempt without specifically naming the particular individuals alleged to be in contempt is untenable. The applicant must clearly name the directors or officers and separate their actions to allow them defend themselves. This is because a company is a separate legal entity distinct from its managers and shareholders, and as such, a Court order directed at a company cannot automatically tie down its directors personally.
36. On merits, it is important to note that the interim orders granted on 30/10/2025 contained a prohibitory limb; restraining termination of the distributorship relationship and appointment of an alternative distributor, and a mandatory limb; compelling compliance with the terms of the “agreement”. The allegation of contempt of Court however concerns the mandatory limb alone; namely, non-fulfilment of the purchase orders forwarded on 28/07/2025. I point out this because as observed by the Court of Appeal in the case Mutitika v Baharini Farm Limited [1985] KLR 229 , contempt of Court partakes of the nature of criminal proceedings, and as such, proof of a case against an alleged contemnor is required to be at a standard higher than a mere “ balance of probability ”, approaching, though not identical to, “ proof beyond reasonable doubt ”. Because of the gravity of the consequences that ordinarily flow from a finding of contempt, an applicant must establish, to that heightened standard, each of 3 distinct elements. First, the existence of an order whose terms, in the specific respect relied upon, is clear and unambiguous. Second, knowledge of those terms on the part of the respondent; and third, a deliberate and willful failure by the respondent to comply with them. This formulation, as drawn from the decision of Mativo J (as he then was) in the case of Katsuri Ltd v Kapurchand & Depar Shah [2016] eKLR , citing the South African case of Kristen Carla Burchell v Barry Grant Burchell (Eastern Cape Division Case No. 364 of 2005) , and also enunciated in Shimmers Plaza (supra) , is not in dispute between the parties; what divides them is its application to the facts of this case.
37. It has not been denied that the order of 30/10/2025 was served on the Defendant via email and subsequently, also by alleged courier, and that the Defendant, through its Advocates, had actual knowledge of its terms. The second element is accordingly satisfied. The real contest is over the first and third elements: that is, whether the order was clear and unambiguous in the specific respect now relied alleged by the Plaintiff, namely, an obligation to fulfil the purchase orders said to have been placed on 28/07/2025, and, if so, whether the Defendant's failure to do so amounted to a deliberate and wilful breach of that obligation.
38. On the first element, I am not satisfied that contempt of Court can arise on the facts of this case. This is so because what is really in issue is a genuine and legitimate dispute between the parties as to the scope of an order framed as “ to comply with the terms of the distributorship agreement ”, without itself specifying what those terms are, and making no reference at all to the purchase orders of 28/07/2025. Whether the order obliged the Defendant to accept and fulfil every purchase order placed by the Plaintiff, as opposed to preserving the Defendant's pre-existing discretion to accept or decline individual orders remains genuinely in dispute. To me, this is a clear disagreement on the interpretation of a Court order, which, in law, would not amount to contempt, provided the party accused has acted in good faith. Contempt requires proof of a willful and deliberate violation of
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2. The suit was commenced by way of the Plaint dated 30/10/2025 filed through Messrs AKO Advocates , whereof the Plaintiff prayed for Judgment for a raft of up to 10 reliefs against the Defendant, including a permanent injunction, arising from what the Plaintiffs basically describes as the Defendant’s attempt to terminate the parties’ existing wine distributorship relationship. In summary therefore, the suit is an attempt to stop the Defendant from terminating the relationship, and appointing another distributor. There is also a prayer for payment of an amount of Kshs 150,000,000/- described as investments made by the Plaintiff in pursuance of the “distributorship agreement”, and also for Kshs 300,000,000/- as goodwill created by the Plaintiff for the Defendant for the business.
3. From the Pleadings, the Plaintiff and the Defendant, a South African wine manufacturer and exporter, had for about 5 years been engaged in an trading relationship, though no formal written contract exists, under which the Plaintiff distributed, marketed and sold the Defendant's wine products in Kenya. The Plaintiff's case is that an exclusive distributorship relationship arose by implication from the parties' conduct, and in particular from a letter dated 11/09/2020 in which the Defendant ended the arrangement it had with a prior distributor, and undertook to “deal directly” with the Plaintiff. The Plaintiff pleads that in reliance thereon, it invested over Kshs 150,000,000/- in personnel, distribution infrastructure, marketing activities, and warehousing, among others, and also built goodwill it estimates at over Kshs 300,000,000/-. The Plaintiff also asserts that its performance of the contract has been satisfactory and that it has a legitimate and reasonable expectation that the Defendant would compensate it for its efforts and investment and uphold the Plaintiff’s exclusive distributorship rights in Kenya. There is also no dispute that by the letter dated 15/10/2025, the Defendant “terminated” the relationship with effect from 1/11/2025, citing a limited product range, stock concerns, and “continuous payment concerns”. By its letter dated 16/10/2025, the Plaintiff disputed these grounds, asserting, inter alia , that its account stood at a nil balance.
4. Together with the Plaint, the Plaintiff also filed the Notice of Motion dated 30/10/2025 (1 st Application) seeking temporary injunctive orders restraining the Defendant, in the interim, from terminating the relationship, and also compelling the Defendant to “comply” with the distributorship arrangement, pending hearing and determination of the suit. The Application is supported by the Affidavit sworn by Anthony Kairu , who introduced himself as the Plaintiff’s General Manager. He basically reiterated the matters already captured above, and insisted that the Plaintiff had a “ legitimate and reasonable expectation that the distributorship relationship would last well over 10 years to justify this heavy investment ”.
5. At the ex parte stage, my sister Mongare, J ., certified the Application as urgent and granted an interim injunctive order pending hearing and determination of the Application. The order, initially granted on 30/10/2025, has since regularly been extended and is still in force.
6. The Defendant opposed the Application by way of the Replying Affidavit sworn on 15/12/2025 by Morné Koen , who introduced himself as the Defendant’s Sales Manager for Africa and the Middle East. The Affidavit is filed through Messrs Mwamuye Mzungu Solomon Advocates LLP . In the Affidavit, he agreed that the Defendant terminated its engagement with a previous distributor for the Kenyan market and began selling its wine directly to the Plaintiff. He however urged that there being no written agreement, the terms of parties’ engagement was strictly as per each respective purchase order, and it was thus always within the Defendant’s discretion whether to accept or refuse a purchase order placed by the Plaintiff. It was also deponed that the Defendant sold each consignment on credit terms to the Plaintiff, which had to make payment within 90 days from the date of the Bill of Lading irrespective of whether the Plaintiff had on-sold the wine or had been paid by clients. He explained that the reason for lack of a written agreement between the parties is that the relationship was not that of sole and exclusive distributorship, and also pointed out that the Plaintiff does not only sell the Defendant’s wine, but also a wide variety of liquor products sourced from other international manufacturers. He then asserted that the relationship was terminated because, among other reasons, the Defendant was not satisfied with the manner in which the Plaintiff was effecting sales of the wine, the Plaintiff's consistent failure to pay for wine purchased from the Defendant in breach of the 90-days agreed period to the extent that the Plaintiff’s account had to be placed on “on hold” from time to mine. Regarding the alleged investments made by the Plaintiff pursuant to the relationship, the Defendant averred that it never made any representations to the Plaintiff or conduct itself in a manner that required the Plaintiff to undertake any form of investment as alleged.
7. The Plaintiff then filed the Further Affidavit sworn on 10/04/2026 in which it maintained that exclusivity arose from the parties’ conduct, cited strong sales performance, and deponed that the last such arrears, of ZAR 225,360, was settled in full on 8/10/2025 before the termination letter thus leaving the account at a nil balance both at the time of termination and at the time filing this suit.
8. While the 1 st Application was still pending, the Plaintiff filed the 2 nd Notice of Motion dated 28/01/2026 (2 nd Application) seeking a finding of contempt of Court and committal to civil jail of the Defendant's directors and/or officers, or imposition of a fine against them. The grounds alleged were that the Defendant had, despite notifications and reminders, failed to fulfil purchase orders placed on 28/07/2025 for supply of wine, in wilful defiance of the temporary injunctive orders given herein on 30/10/2025. The Application is again supported by the Affidavit sworn by the said Anthony Kairu ., who deponed that the orders were served upon the Defendant via email on 31/10/20205 and also via courier on 7/11/2025, and that the Defendant’s subsequent act of appointing Advocates to represent it in this matter is sufficient proof that it received and was aware of the orders. He urged that the Defendant’s failure to honour the purchase orders has caused serious disruption to the Plaintiff’s operations as it is not able to supply its customers. The Defendant’s inaction and conduct was, as such, described as aimed at undermining and circumventing the Court order.
9. The Defendant opposed this 2 nd Application by way of the Replying Affidavit sworn by the said Morné Koen on 4/03/2026. He averred that the Plaintiff has not demonstrated what the terms of the distributorship agreement were upon which the purchase orders were allegedly to be fulfilled by the Defendant, nor are any such to be found in the Court order. He also asserted that the Plaintiff has not demonstrated that the Defendant has appointed or traded with any other distributor in the Kenyan market since the orders were given on 30/10/2025.
10. The parties then filed written Submissions. In support of the Application for temporary injunction, the Plaintiff filed the Submissions dated 10/04/2026, while the Defendant, in opposition, filed the Submissions dated 9/06/2026. Regarding the Application seeking a finding of contempt of Court, the Plaintiff filed the Submissions dated 15/03/2026, while the Defendant filed the Submissions dated 5/06/2026. Both parties basically reiterated the matters already recounted in their Affidavits above, save for citing authorities to support the various limbs of their arguments.
11. The Defendant however raised a new issue not mentioned in the Replying Affidavit, that the Application for contempt of Court was incompetent for want of applying for or obtaining prior leave under Section 5 of the Judicature Act . The Defendant also raised a second new issue that the Application is required to be served personally upon the persons sought to be committed, but in this case, it was only served upon the Defendant’s Counsel, not the alleged contemnors.
Determination
12. The issues that call for determination in this matter may be summarized as follows:
i) whether the Defendant should be restrained, by way of an interlocutory injunction, from terminating the distributorship relationship with the Plaintiff, and be compelled by a mandatory injury injunction, to comply with its terms, pending hearing and determination of this suit.
ii) Whether the Defendant should be found to be in contempt of Court for disobeying the interim orders given earlier in this matter.
13. Determination on whether to grant an interlocutory injunction is governed by Order 40 Rule 2 of the Civil Procedure Rules , which provides, in relevant part, as follows:
“In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right…”
14. The principles that apply in applications for injunctions were settled in the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358, in which it was held that an applicant must establish (i) existence of a prima facie case with a probability of success , (ii) that he will suffer irreparable injury which cannot adequately be compensated by damages , and (iii) that, if in doubt, the balance of convenience tilts in his favour .
15. It is also settled that, at this interlocutory stage, the Court should be slow to make final determinations on matters of fact arising from conflicting affidavit evidence. In Mbuthia v Jimba Credit Finance Corporation & Another [1988] KLR 1 , the Court of Appeal guided as follows:
“….............. the correct approach in dealing with an application for an interlocutory injunction is not to decide the issues of fact, but rather to weigh up the relevant strength of each side's propositions.”
16. The first limb for determination is therefore whether the Plaintiff has established a prima facie case . What constitutes “ a prima facie ” case was discussed in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR , in which the Court of Appeal held that it is “ a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter ”, and that “ a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the applicant's case upon trial ”.
17. Applying the above standard, I observe that both parties have exhibited correspondence and documentation demonstrating an active trading relationship of approximately 5 years. Indeed, the Defendant’s own letter of 11/09/2020 lends credence to the Plaintiff's assertion that the relationship was intended to be more than just a mere series of unconnected transactions. At the same time, the Defendant has presented a largely unchallenged documentary record showing that individual consignments were, always, the subject of individual purchase orders which the Defendant could either accept or decline, and conditioned on payment, at its own discretion, and that the Plaintiff's account, on substantial occasions, fell into in arrears well beyond the agreed 90 days credit terms. Whether those facts, taken together, disclose an implied exclusive distributorship of the kind the Plaintiff asserts, or no more than a just discretionary trading arrangement terminable at will as the Defendant asserts, is a matter of conflicting facts that this Court, for the reasons given in Mbuthia (supra) , is not entitled to resolve at this stage.
18. Although the Plaintiff describes itself as an “ exclusive distributor ” the documents on record weakens this claim of exclusivity. The relationship was never reduced to a formal agreement, exclusive or otherwise, so the question whether “ exclusivity ” is to be implied from conduct turns entirely on inference from correspondence which, as stated, cuts both ways and is not for resolution on Affidavit.
19. I understand the Plaintiff to be arguing that it had “ legitimate and reasonable expectation” that the relationship would endure long enough to allow for recoupment of its investment, relying on the Court of Appeal decision in Heineken East Africa Import Company Ltd & another v Maxam Ltd, Civil Appeal No. E403 & E404 of 2020 (Consolidated); [2024] KECA 625 (KLR) . In that case however, it was held that “legitimate expectation” is a public law doctrine requiring a representation by a public body, and has no place, without more, between private contracting parties. A narrower and distinct concept, “ reasonable expectation ”, may however properly find a cause of action in the ordinary law of contract where it arises from the contract's terms or the parties’ course of dealing, rather than a unilateral hope. What the Plaintiff however fails to disclose, whether deliberately or innocently, is that in the Heineken case, there was a formal written agreement clearly setting out the terms of the contract, timelines for performance and payments, and also expressly naming the applicant therein as the sole and “ exclusive ” distributor. What the Plaintiff also fails to disclose is that the Court declined, at the interlocutory stage, to stop the manufacturer from terminating the relationship and appointing a new distributor upon finding that the applicant’s loss could well be compensated by way of damages. Indeed, the Court eventually awarded the applicant such damages for unlawful termination of the distributorship but only after a full trial. The Heineken case is therefore of no assistance to the Plaintiff’s case. To the contrary, it substantially weakens the plea for grant of the temporary injunction.
20. While therefore, the Plaintiff may have shown an arguable grievance arising from the abrupt termination of a lucrative 5-year trading relationship, I am not satisfied that a strong case to the extent of meeting the threshold of what would constitute a prima facie case capable by itself of justifying grant of an interlocutory injunction has been disclosed at this stage.
21. Even assuming that a prima facie case has been demonstrated, still, the law does not confine the grant or refusal of an interlocutory injunction to only the question whether a prima facie case has been demonstrated. This was affirmed by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR , in the following terms:
“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially ….. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the [applicant] will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy … no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage.”
22. In respect of the second limb, the question of “ irreparable harm ”, the loss the Plaintiff alleges is partly expressed in precise pecuniary terms as an investment of “well over” Kshs 150,000,000/- and goodwill “estimated at more than” Kshs 300,000,000/-. The other claim is that “once a distributor’s market position has been lost and customers shift elsewhere, the resulting loss of goodwill and market presence cannot be easily restored by a subsequent award of damages”. A party able to place a figure on its claimed loss, and explain the basis of that figure, demonstrates that the loss is capable of computation and proof at trial, and is not of a kind that eludes monetary measurement. This position was also affirmed by the Court of Appeal in the case of Esso Kenya Ltd v Mark Makwata Okiya (1992) eKLR . Where therefore damages are capable of being measured with a fair degree of accuracy, the second condition in Giella , namely, “ irreparable harm ”, cannot always be said to have been met. Under these circumstances, I am not satisfied that the Plaintiff has shown “ irreparable ” injury of a kind that cannot adequately be remedied by an award of damages should it succeed at the trial in establishing that a binding distributorship existed and was wrongfully terminated.
23. It is settled that the three Giella conditions are not to be applied disjunctively, and that an applicant who fails on either the first or the second is, without more, not entitled to an interlocutory injunction (see Nguruman supra) . Nonetheless, for completeness, I will also address the third limb, namely, “ balance of convenience ”.
24. According to the Defendant, the Plaintiff's account had, on a number of occasions between 2021 and 2025, fallen into arrears beyond the agreed 90-day terms and had to be placed “on hold”. The Plaintiff's evidence, which the Defendant has not specifically controverted, is that the last such arrears, of ZAR 225,360 as at 6/10/2025, was settled in full on 8/10/2025, before the letter of termination, so that the account stood at a nil balance both when that letter was written and when this suit was filed. According to the Plaintiff therefore, the Defendant is not facing a live or current default and no weight should be placed on the “continuous payment concerns”. What remains material however, and is unaffected by the clearing of that balance, is the strong indication of the Defendant's retention of its contractual freedom, exercised throughout the relationship, independently of the state of the account, to accept or to decline individual purchase orders, at its own discretion. From this indication, compelling the Defendant, by injunction, to continue extending product supply and credit to the Plaintiff pending trial would, in my view, curtail that apparent freedom, on the strength of an arrangement whose alleged “ exclusive ” or binding character was never reduced into writing as a contract and as such, remains genuinely in dispute. All indication is that any prejudice to the Plaintiff flowing from refusal of the orders is, as I have found, capable of being made good in damages. Under these circumstances, I am satisfied that the “ balance of convenience ”, too, does not favour grant of the interlocutory injunction.
25. The Plaintiff additionally seeks a mandatory injunction compelling the Defendant to comply with the “terms” of the alleged distributorship agreement pending trial. As held by the Court of Appeal in case of Locabail International Finance Ltd v Agroexport & Another [1986] 1 All ER 901 , followed by the same Court in the case of Kenya Breweries Ltd & another v Washington O. Okeyo [2002] 1 EA 109 , mandatory injunction is an exceptional relief granted only where the case is clear and the Court is satisfied that such order is very necessary to achieve justice. In this case, given the serious doubts I have pointed out over the claim of an “ exclusive ” distributorship relationship, and the alleged terms thereof, I do not find this to be such a plain and clear case. Each case must be determined on its own facts but from the unique circumstances of this case, to compel the manufacturer to continue supplying the Plaintiff on terms neither party can presently identify with precision would, in substance, amount to pre-determining the very question the suit is brought to resolve. Further, restraining the manufacturer from terminating the relationship, in substance, compelling it to continue with the supply, would also require the Court’s supervision of performance of a contract whose terms are largely unclear. That relief must accordingly be declined.
26. Needless to state, my findings above do not in any way, prejudice or curtail the Plaintiff’s right to prove, at the trial, the existence of a binding “ exclusive ” distributorship agreement, if any, terms thereof, and any entitlement to damages arising therefrom, if any.
27. Turning to the 2 nd Application, contempt of Court in Kenya is governed by Section 5 of the Judicature Act (Cap. 8) , which provides as follows:
“The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and that power shall extend to upholding the authority and dignity of subordinate courts.”
28. The Defendant has raised the preliminary challenge that the Application is incompetent, both for want of prior leave to file it, and for want of personal service on the individual directors sought to be committed. As already pointed out, these matters were belatedly introduced for the first time in the Defendant’s final Submissions, long after all Affidavits had been filed and exchanged, directions taken, and after the Plaintiff had already filed its final Submissions. As such, the Plaintiff has not had a chance to respond to these new issues.
29. In any event, the question whether leave is required before filing an Application for contempt of Court is now, in my view, well settled. This is because the Court of Appeal, in the case of Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others (2014) eKLR , ruled, way back in 2014, that leave is not required before filing an application for contempt of court “if the committal proceedings relate directly to “ a breach of a judgment, court order, or formal undertaking ” . Although that ruling was in respect of a matter before the Court of Appeal, there is no reason why the same logic and reasoning should not apply mutatis mutandis to the practice in all other Courts. Even in the now unconstitutional-declared Contempt of Court Act, 2016 , courtesy of the decision of Mwita J (as he then was) rendered in the case of Kenya Human Rights Commission v Attorney General & another [2018] eKLR , the requirement to obtain leave had been confined strictly to only “ criminal contempt ” cases, and was never extended to “ civil contempt ” .
30. Further, in any event, guided by Article 159(2)(d) of the Constitution , and mindful that the Defendant was served with the Application, fully participated in the proceedings, and has not demonstrated any specific prejudice arising from the absence of obtaining prior leave before filing the application for contempt, I overrule the objection.
31. Regarding the absence of personal service upon the alleged contemnors, it is now also well settled that “ actual knowledge” or “awareness” of a court order now supersedes the strict requirement of personal service for contempt proceedings. While personal service remains the standard and ideal practice, Courts have repeatedly held that if an applicant can prove beyond reasonable doubt that the alleged contemnor had clear knowledge of the order and its terms, the strict requirement to prove personal service is dispensed with.
32. As established by the Court of Appeal in the case of Shimmers Plaza Limited vs National Bank of Kenya Limited (Civil Appeal No. 33 of 2012) [2015] KECA 945 (KLR) (Civ) (18 February 2015) (Ruling) , it is now settled law that “ knowledge ” of a Court order supersedes the need for “ personal service ”. In that case, the Court stated that “ this Court has slowly and gradually moved from the position that service of the order along with the penal notice must be personally served on a person before contempt can be proved …” .
33. Similarly, Lenaola J (as he then was) , held in the case of Basil Criticos Vs Attorney General and 8 Others [2012] eKLR that “... the law has changed and as it stands today knowledge supersedes personal service ..... where a party clearly acts and shows that he had knowledge of a Court Order; the strict requirement that personal service must be proved is rendered unnecessary ”
34. In this case, the Defendant has not denied that it was served with the Court order by way of both email and courier, and has also by its own Affidavit, confirmed full knowledge of the order. In light of the above, the insistence on personal service does not arise.
35. There is however another angle. The Application does not identify the specific persons at the Defendant company sought to be found to be in contempt of Court. Because contempt proceedings are quasi-criminal in nature and can lead to severe penalties such as imprisonment (committal to civil jail), Courts maintain an exceptionally high procedural threshold, thus, a generic order cannot, generally, be issued against a corporate office, or amorphous, or a generic-described entity since contempt attaches to a specific individual. As observed by Mogeni J , in the Environment and Land Court case of Njunu Farmers Co-operative Society v CKK Estates (1973) Limited & 4 others ([2025] KEELC 8569) , an application seeking to cite office holders for contempt without specifically naming the particular individuals alleged to be in contempt is untenable. The applicant must clearly name the directors or officers and separate their actions to allow them defend themselves. This is because a company is a separate legal entity distinct from its managers and shareholders, and as such, a Court order directed at a company cannot automatically tie down its directors personally.
36. On merits, it is important to note that the interim orders granted on 30/10/2025 contained a prohibitory limb; restraining termination of the distributorship relationship and appointment of an alternative distributor, and a mandatory limb; compelling compliance with the terms of the “agreement”. The allegation of contempt of Court however concerns the mandatory limb alone; namely, non-fulfilment of the purchase orders forwarded on 28/07/2025. I point out this because as observed by the Court of Appeal in the case Mutitika v Baharini Farm Limited [1985] KLR 229 , contempt of Court partakes of the nature of criminal proceedings, and as such, proof of a case against an alleged contemnor is required to be at a standard higher than a mere “ balance of probability ”, approaching, though not identical to, “ proof beyond reasonable doubt ”. Because of the gravity of the consequences that ordinarily flow from a finding of contempt, an applicant must establish, to that heightened standard, each of 3 distinct elements. First, the existence of an order whose terms, in the specific respect relied upon, is clear and unambiguous. Second, knowledge of those terms on the part of the respondent; and third, a deliberate and willful failure by the respondent to comply with them. This formulation, as drawn from the decision of Mativo J (as he then was) in the case of Katsuri Ltd v Kapurchand & Depar Shah [2016] eKLR , citing the South African case of Kristen Carla Burchell v Barry Grant Burchell (Eastern Cape Division Case No. 364 of 2005) , and also enunciated in Shimmers Plaza (supra) , is not in dispute between the parties; what divides them is its application to the facts of this case.
37. It has not been denied that the order of 30/10/2025 was served on the Defendant via email and subsequently, also by alleged courier, and that the Defendant, through its Advocates, had actual knowledge of its terms. The second element is accordingly satisfied. The real contest is over the first and third elements: that is, whether the order was clear and unambiguous in the specific respect now relied alleged by the Plaintiff, namely, an obligation to fulfil the purchase orders said to have been placed on 28/07/2025, and, if so, whether the Defendant's failure to do so amounted to a deliberate and wilful breach of that obligation.
38. On the first element, I am not satisfied that contempt of Court can arise on the facts of this case. This is so because what is really in issue is a genuine and legitimate dispute between the parties as to the scope of an order framed as “ to comply with the terms of the distributorship agreement ”, without itself specifying what those terms are, and making no reference at all to the purchase orders of 28/07/2025. Whether the order obliged the Defendant to accept and fulfil every purchase order placed by the Plaintiff, as opposed to preserving the Defendant's pre-existing discretion to accept or decline individual orders remains genuinely in dispute. To me, this is a clear disagreement on the interpretation of a Court order, which, in law, would not amount to contempt, provided the party accused has acted in good faith. Contempt requires proof of a willful and deliberate violation of
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