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The High court yesterday directed three applications filed by Bia Tosha, East Africa Breweries Ltd (EABL) and Kenya Breweries Ltd (KBL) top directors to be mentioned tomorrow.

Justice Hedwig Ong’undi said she needed time to go through the application before she could give any directions in the matter. The Supreme Court in February remitted the case back  to the High Court to deal with contempt of court application against EABL  and KBL top directors.

It had found the two Brewers  in contempt of High Court orders that stopped them from terminating the distributorship agreement with Bia Tosha.

Deputy Chief Justice Philomena Mwilu and Justices Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko directed the High Court to proceed to assess the suitable punishment arising out of the contempt application by Bia Tosha.

The beer distributor which had been appointed as the sole supplier for KBL liquor products for various routes within the country.

Repossessed routes

However, in 2016 after KBL and EABL repossessed 22 routes and reallocated them to other distributors and refused to refund the goodwill for the repossessed routes. Bia Tosha in its contempt of court application wants the top directors of KBL and EABL  jailed for  six months  and be fined Sh30 million.

The directors are; EABL Managing Director Andrew Cowan, KBL Managing Director Jane Karuku and KBL Sales Director Andrew Kilonzo. Bia Tosha claims KBL purported to terminate the distributorship agreement on August 5 contrary to the court order.

“KBL stopped supplying us with products for purposes of distributing in our exclusive territories that were preserved by the court with intention of crippling our business,” the company argued.

The directors on the other hand want the contempt of court application suspended, saying they have an application pending before the Supreme Court.

It is their case that there is real imminent danger for them to be condemned unheard since Bia Tosha is pressing on with the contempt proceedns and their imprisonment despite their application at the Supreme Court.

“If the orders are granted  and executed  the same cannot be reversed even if the applicants succeed in the Supreme Court, meaning that they will suffer prejudice if the orders are granted,” argued the directors through their lawyer Njoroge Regeru in court documents. It is their case that the Supreme Court case seeks among other things to stay the contempt proceedings before the High Court.

The genesis of the matter started in 1997 when the partnership between Bia Tosha and EABL was entered when the former was appointed as a distributor for the later’s products within Gachie, Mwimuto, Kanunga, Kiambaa, Banana, Karura, Gathanga, Ndenderu, Ndumberi, Tinganga, Riabai, Kanguya, Wangige, and Ridgeways.

Distribution areas

Subsequently, in the year 2000, through a letter dated July 20, 2000, Bia Tosha was offered new distribution areas namely Baba Dogo, Kariobangi North, Dandora I, and Dandora II on the condition that it would pay a non-refundable goodwill of Sh6,630,000 to the Kenya Breweries.

Sometime thereafter, the Kenya Breweries re-possessed Baba Dogo, Dandora I and II, and Kariobangi North, from Bia Tosha to enable the brewer to serve the new areas and Bia Tosha requested to be refunded the goodwill for the territories that were repossessed.