The ruling, which dismissed Bia Tosha’s application dated May 4, 2026, was delivered with costs against the distributor. The court’s reasoning was procedural but pointed: Bia Tosha had already chosen to pursue relief through the Court of Appeal, and having made that election, it could not simultaneously return to the High Court seeking the same kind of interim intervention. The application was therefore thrown out on those grounds alone, without the court needing to weigh in on the underlying merits of the transaction dispute.
Why the Court Said No
The principle at the heart of this ruling is one that courts apply consistently litigants cannot pursue overlapping remedies in different courts at the same time. Once Bia Tosha opted to take its case to the appellate level, the High Court stepped back as the appropriate forum for granting the same interim relief being sought elsewhere. Allowing both tracks to run in parallel would risk contradictory outcomes and undermine the orderly progression of legal proceedings.
Legal analysts say the decision reinforces a disciplined approach to litigation procedure, particularly in complex commercial disputes where multiple applications and amendments have accumulated over time. The message from the bench is clear: choose your forum and follow the process, rather than pursuing multiple bites at the same apple in different courts simultaneously.
A Pattern of Procedural Setbacks
This is not the first time Bia Tosha has found itself on the wrong side of a procedural ruling in this matter. In earlier proceedings, the court directed that the parties first settle which version of Bia Tosha’s petition is actually before the court before any substantive issues can be addressed. That directive arose from disputes around a Further Amended Petition that sought, among other things, to challenge the proposed transaction and introduce a KSh45 billion claim against the parties involved.
The pattern that has emerged is one where foundational and procedural questions keep taking centre stage, pushing the substantive allegations further down the timeline. For Bia Tosha, which has been trying to use the courts to slow or stop the transaction, each procedural setback extends the time it takes to reach a determination on the core issues while EABL and the transacting parties continue moving forward.
What This Means for EABL and the Transaction
For EABL and those supporting the Diageo-Asahi deal, the ruling removes what had been an immediate and practical obstacle. An interim order halting the transaction, had it been granted, could have frozen proceedings and created significant uncertainty for the parties involved. With that threat now dismissed, the transacting parties have more room to continue working toward completion through the established channels.
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The broader legal dispute is far from over. Bia Tosha’s substantive claims whatever form they ultimately take once the court resolves which version of the petition is properly before it have not been heard or decided. The dismissal of this application addresses only the interim relief question, not the underlying allegations at the heart of the case.
A Long Road Still Ahead
Corporate transactions of this scale almost always attract legal scrutiny, and disputes between large companies and their distributors or business partners are not unusual in the context of major ownership changes. What makes this case notable is the persistence of the litigation and the number of procedural twists it has taken before reaching anything close to a substantive hearing.
For observers of Kenya’s corporate and legal landscape, the case is a reminder that even clearly structured transactions can become entangled in prolonged litigation when affected parties choose to contest them aggressively. The courts, for their part, appear committed to ensuring that the process follows established legal order even if that means repeated procedural rulings before the real arguments are ever heard.
How the Court of Appeal handles Bia Tosha’s pending application at that level will be the next significant moment to watch. Until then, EABL moves forward with one fewer immediate legal obstacle standing in its way.