Nairobi The High Court has reserved its ruling to 28 May 2026 in a fresh application by Bia Tosha Distributors Limited seeking to stop completion of the proposed Sh300 billion Diageo Asahi transaction, even after a similar bid was dismissed last month. While Bia Tosha insists a temporary freeze is necessary until the Court of Appeal hears its case, the respondents are pushing back.
Lawyers for EABL, KBL, UDV and Diageo opposed the move, arguing that the fresh application is not a narrow holding request but a renewed attempt to obtain the same transaction freezing orders already rejected by the High Court on 9 April.
The respondents told the court that Bia Tosha had already moved to the Court of Appeal and should pursue its relief there. “This is a classic case of forum shopping,” they argued. “The applicant elected to go to the Court of Appeal. It must now follow that process.” The defence also faulted Bia Tosha for waiting more than three weeks to seek urgent protection, effectively asking the court to treat its own delay as an emergency.
Court told dispute has no direct link to share transaction
A major theme of the respondents’ case was the lack of a legal or factual link. “The shares are not the subject of the petition,” counsel said, noting the decade old case strictly concerns beer distribution routes and alleged goodwill, not Diageo ownership. They emphasised that EABL and KBL remain Kenyan operating entities, and an upstream change in shareholding does not extinguish their legal obligations or prevent enforcement of any eventual judgment.
The respondents also argued that even a short injunction would be highly disruptive, criticising Bia Tosha for seeking restraint without offering an undertaking as to damages. “It is not a small thing to place a court order over a Sh300 billion transaction,” they said, warning that uncertainty in a deal of this scale could cloud a major regulated transaction, unsettle investors and send negative signals to markets watching Kenya’s handling of foreign direct investment.
The ruling set for 28 May is expected to draw close attention from corporate players and international investors. For the respondents, the dispute has moved beyond a distributor case and now tests whether private commercial litigation can continue to affect a major cross border transaction after the High Court has already declined to stop it.
