After losing three separate bids to block Asahi’s $2.3bn EABL takeover in Nairobi courts, deal opponents scored an ex parte injunction in a separate court 60km away on the same day the latest suit in a Nairobi court was dismissed.
Brewer EABL warns that “forum shopping” across different High Court stations in Kenya is creating conflicting orders and legal chaos, sending a “damaging signal” to foreign investors about Kenya’s judicial predictability.
The stalled deal would deliver up to KES 42 billion ($327 million) in capital gains tax to Kenya’s government, money now frozen by a single judge’s order obtained without hearing the affected parties.

A high-stakes legal battle is brewing in Kenya and now threatens to scupper one of East Africa’s largest-ever foreign direct investments, as Japanese beverage giant Asahi Group Holdings faces a coordinated campaign of litigation aimed at blocking its $2.3 billion acquisition of Diageo’s controlling stake in East African Breweries PLC (EABL).

The complex saga, which has seen a series of failed legal challenges in Nairobi followed by a successful ex-parte injunction in a small court outside the capital, has prompted EABL to formally petition Chief Justice Martha Koome for urgent administrative intervention.

At the heart of the dispute are what EABL’s lawyers led by Senior Counsel Kamau Karori describe as a “proliferation of parallel proceedings” and brazen “forum shopping” designed to frustrate the deal.

In a letter to the Chief Justice dated June 23, seen by The Exchange, lawyers for the Kenya headquartered brewer expressed grave concerns that different High Court stations are being used to secure conflicting orders, creating an “untenable position” of legal uncertainty.

The letter outlines a clear pattern: multiple High Court judges in Nairobi have consistently declined to halt the transaction, citing the public interest and the lack of a legal nexus between the deal and the commercial grievances of the claimants.

Justice Gregory Mutai, in a June 17 ruling dismissing a case by JILK Construction Company, explicitly stated that “public interest favors the conclusion of the transaction, as the transaction shall have a significant public finance impact,” noting the estimated KES 42 billion in capital gains tax revenue for the government.

However, on June 18, the same day the Nairobi High Court dismissed another challenge, a fresh petition was filed in the Machakos High Court, some 60 kilometers away. In those proceedings, Justice J.W.W. Mongare issued ex parte conservatory orders halting the transaction, effectively freezing a deal that had already been given the green light by multiple Nairobi judges .

A ‘worrying trend’ and investor confidence in Asahi EABL transaction

EABL has slammed this move as a “clear abuse of the court process” . The brewer’s lawyers argue that the Machakos case represents a strategy by parties “desirous of hindering the completion of the transaction” to secure from a different court station the relief that had already been denied by the court first seized of the matter.

“Orders of such magnitude… which have already been refused elsewhere by the courts of concurrent jurisdiction ought never to have been granted without hearing the affected parties,” the EABL letter states, pointing out that the ex parte nature of the order gives the appearance of an attempt to ambush the parties involved.

The brewing giant, which has presence in Tanzania, Uganda, and South Sudan markets, warned that the “continued issuance of conflicting and forum-shopped orders sends a damaging signal to local and international investors regarding the predictability and reliability of Kenya’s judicial system,” potentially causing “reputational harm to the administration of justice and to Kenya as an investment destination”.

The legal saga involves a cast of characters with long-running grievances against EABL. The cases include a decade-old dispute by beer distributor Bia Tosha Distributors Limited and a claim by JILK Construction Company related to a construction project, both of which were dismissed by Nairobi courts as having “no nexus” to the share transfer.

However, the most potent challenge appears to be from a private citizen, Christine Irungu, who has raised constitutional questions regarding the conduct of British multinational Diageo and the regulatory authorities.

Seeking a Judicial “Common Bench”

EABL is now asking the Chief Justice Martha Koome to intervene administratively by appointing a single judge in Nairobi to handle all matters relating to the transaction and to issue directions to prevent further parallel litigation.

Citing the precedent set by the consolidated hearings in Kenya’s embattled former President Rigathi Gachagua’s constitutional petitions, EABL’s lawyers argue that such an intervention is necessary to ensure “coordinated case management” and judicial comity between courts of concurrent jurisdiction.

With the deal’s timetable, and the financial benefits it promises for the Kenyan exchequer, hanging in the balance, the outcome of this administrative request and the swift resolution of the Machakos proceedings will be critical for Asahi’s grand entry into the East African market.