The story of how Bia Tosha Distributors Limited ended up in court, fighting not just EABL and Diageo but now arguably the Chief Justice herself, begins in a warehouse in Nairobi’s Nairobi West in 1997. That was the year Anne-Marie Burugu’s company entered its first distribution agreement with Kenya Breweries Limited, the dominant EABL subsidiary. Over the next nine years, Bia Tosha paid millions in goodwill fees to acquire exclusive rights across 22 routes spanning some of the most lucrative beer-drinking territory in the country — Athi River, Kitengela, Kajiado, Kiserian, Langata, Rongai, Nairobi West, South B, Industrial Area, and a dozen others. These were not informal handshakes. They were commercial contracts that Bia Tosha negotiated, paid for, and operated.
In 2006, Kenya Breweries began repossessing the routes. Routes that Bia Tosha had paid goodwill to acquire were handed to new distributors. The Sh38 million goodwill Bia Tosha had paid was declared non-refundable. The agreements, KBL now insisted, had never been exclusive. Bia Tosha went to court. What followed is one of the most instructive case studies in how a market-dominant multinational can use every legal, financial, and corporate instrument available to it — year after year, court after court — to frustrate a smaller party’s access to justice while simultaneously expanding and entrenching its market position.
Today, Bia Tosha is not the only company watching the Diageo exit with alarm. JILK Construction Company Limited, a Nairobi-based contractor that built a Ksh15 billion brewery for Kenya Breweries in Kisumu, says it is owed Ksh2.45 billion and alleges that EABL is now running to court to prevent an arbitral award from ever being delivered. Both companies have filed urgent applications to stop the Diageo-Asahi transaction. Both say that if Diageo leaves, they will have won their cases and lost everything.
THE MAKING OF A MONOPOLY
To understand why these companies feel as trapped as they do, it is necessary first to understand the market structure that Diageo has built and protected in Kenya. EABL, through its subsidiaries Kenya Breweries Limited and UDV (Kenya) Limited, controls close to 90 percent of the formal beer market in Kenya. The company’s brands — Tusker, Guinness, Pilsner, Senator Keg, Johnnie Walker — are not merely popular; they are structurally embedded in how alcohol reaches the Kenyan consumer. The distribution network through which these products move is built on over 120 contracted distributors across the country.
What is less widely understood is the degree of financial and operational control EABL exercises over those distributors. In 2018, the company introduced what it calls the Distributor Finance Scheme, a system that requires all its distributors to hold their working capital in accounts linked to a network of five nominated banks including KCB, Equity, and Absa. All payments for EABL products flow through Safaricom till numbers connected to these accounts. The practical consequence is that EABL has direct access to the bank accounts of its distributors and can debit funds without prior reconciliation or consultation. Distributors who raised concerns about erroneous debits or delayed credits from Safaricom were told to top up their accounts immediately regardless. Those who considered protesting knew the lesson Bia Tosha had already taught the network: complain, and your contract disappears.
Distributors are also rigidly segmented by product. Those selling the fast-moving Senator Keg brand cannot distribute mainstream beer or spirits. Those selling Tusker and Johnnie Walker cannot touch Keg. Cross-selling between product lines is prohibited even where consumer demand clearly exists. The geographic restrictions are equally tight: distributors are barred from selling outside assigned territories and must seek written approval before entering adjacent areas. Taken together, the system creates a network of commercially dependent operators who own their vehicles, warehouses, and working capital but function, to all intents and purposes, as captive distribution arms of EABL.
In October 2025, the COMESA Competition Commission validated what distributors had been whispering for years. A four-year investigation into Diageo’s distribution practices, formally registered as Case No. CCC/ACBP/4/1/2021, concluded that contracts in Uganda, Eswatini, and Zambia contained clauses imposing minimum resale prices, single-branding restrictions, and territorial segmentation that violated regional competition law. Diageo settled the case for $750,000 and committed to removing all restrictive clauses, notifying distributors within 30 days. The settlement was signed in London on September 30, 2025. The fine was a drop in the ocean for a company of Diageo’s size. The significance lay elsewhere: an internationally mandated competition body had formally found that Diageo’s distribution practices breach fair trade principles in the region.
“The respondents have acted with reckless abandon and with total contempt for the authority of this court, have continued to infringe upon the applicant’s distribution areas.” — Anne-Marie Burugu, Managing Director, Bia Tosha
THE NINE-YEAR LEGAL ENDURANCE RACE
Bia Tosha first filed its petition at the High Court in 2016. The petition documented the unlawful repossession of its routes, the refusal to refund goodwill payments, and the appointment of new distributors over Bia Tosha’s protected territories in defiance of conservatory orders. What followed over the next nine years would test the limits of any company’s financial and psychological endurance.
The conservatory order protecting Bia Tosha’s routes was issued in June 2016. EABL and KBL, Burugu alleges in sworn affidavits, simply ignored it. The brewer continued supplying the new distributors in Bia Tosha’s territories, defied the order at every level, and when the matter reached the Court of Appeal, used its decision as the basis for arguing the High Court’s orders had been discharged. The Supreme Court, in February 2023, cut through this argument definitively. A five-judge bench reinstated the June 2016 conservatory orders, found that EABL had committed contempt, and sent the matter back to the High Court to assess punishment. It was categorical: the respondents could only appear before the High Court to purge the contempt before they could be given any further audience. The punishment was to be assessed, not relitigated.
Bia Tosha sought a fine equivalent to 20 percent of EABL’s gross turnover — roughly Sh39 billion — and civil jail sentences of up to six months for EABL CEO Jane Karuku, Uganda Breweries MD Andrew Kilonzo, and former EABL CEO Andrew Cowan, the three executives found to have been in contempt. This is where the legal architecture EABL deployed becomes most revealing. Instead of appearing before the High Court to purge the contempt as directed, the executives filed an application at the Supreme Court seeking a review, arguing they had been condemned without a hearing. The Supreme Court dismissed this attempt in May 2023, confirming that the matter of punishment must be addressed at the High Court.
The three executives named in the contempt proceedings responded to this outcome in a manner that would become a pattern: Diageo promoted them. Jane Karuku, then KBL’s managing director, was elevated to EABL Group CEO. Andrew Kilonzo was sent to run Uganda Breweries. Andrew Cowan was made MD for Diageo’s Africa Travel Retail division. The signal this sent inside the company — that disobeying court orders leads to advancement rather than accountability — was not lost on those watching.
Kilonzo’s Uganda tenure produced its own COMESA violation findings. He was subsequently rotated back to Kenya as KBL MD, reuniting with Karuku in the same leadership structure the Supreme Court had found in contempt. The circle was complete.
The contempt case dragged on at the High Court. Every scheduled hearing produced new motions, new objections, new applications challenging the scope and framing of the proceedings. By early 2025, two years after the Supreme Court’s definitive ruling, the matter was still mired in procedural warfare. A Kenya Law ruling from March 2025 shows the court still grappling with clarification issues from the Supreme Court’s 2023 direction. For Bia Tosha, the meaning of this delay was not abstract — every month of inaction was another month in which new distributors operated Bia Tosha’s routes, and another month in which the company’s ability to sustain litigation bled further.
Then, in December 2025, Diageo announced it was selling its entire 65 percent stake in EABL to Japan’s Asahi Group for $2.354 billion. The announcement was timed for the Christmas holiday period, when courts operate at reduced capacity and counsel is difficult to mobilise. Bia Tosha noted this explicitly in its court filings.
EABL’S PLAYBOOK: HOW YOU WEAPONISE PROCESS
Diageo and EABL’s public line is that Bia Tosha is the one weaponising the courts — using decade-old commercial litigation to interfere with a nationally significant transaction. In documents filed by Diageo’s legal team, Bia Tosha’s application is described as ‘hollow,’ a ‘brazen attempt to advance private commercial interests under the guise of constitutional litigation,’ and an attempt to ‘hoodwink the court.’ These characterisations deserve scrutiny.
Between June 2016 and March 2026, every court that examined Bia Tosha’s core claim — that KBL unlawfully repossessed its distribution routes and refused to refund goodwill — has found in the distributor’s favour. The High Court issued conservatory orders in 2016. The Court of Appeal sustained the orders. The Supreme Court in February 2023 reinstated those orders and found EABL in contempt. A High Court ruling in December 2024 struck down the competing claims of two new distributors — Ngong Matonyok and Manara — who had been given Bia Tosha’s territories, ruling their appointments violated the 2016 conservatory orders. The judiciary at every level has confirmed that EABL violated the contract and defied the orders. EABL appealing those findings does not make Bia Tosha’s claim speculative or opportunistic — it makes it one of the most thoroughly litigated and consistently vindicated commercial disputes in recent Kenyan legal history.
What EABL has demonstrated in this case is a different kind of weaponisation: the use of superior legal resources, institutional relationships, and procedural complexity to delay, dilute, and ultimately outlast a smaller opponent. The company’s legal team — led in this matter by Njoroge Regeru, with Senior Counsel Prof. Githu Muigai’s firm involved in parallel proceedings — is on a retainer that industry insiders estimate at close to Ksh3 million per month, separate from per-matter billings. Francis Gaitho, writing on his commentary platform, has observed pointedly that there is little incentive for such a firm to recommend arbitration or settlement when the legal budget is large, annual, and guaranteed.
Bia Tosha also alleges that after the Supreme Court ordered reinstatement, EABL effectively sponsored the new distributors it had placed on its routes to file their own petitions at the High Court, arguing that their own rights would be violated if Bia Tosha was reinstated. Burugu describes these as cases ‘filed under the direction of EABL.’ The High Court in December 2024 rejected those petitions. But the strategy of manufacturing competing litigation to create procedural obstacles is itself instructive.
“There is no other effective means by which this court can compel obedience other than through prohibition of the sale.” — Bia Tosha court filing, January 2026
THE KISUMU FILES: JILK AND PROJECT NAFASI
Bia Tosha is not alone. Running parallel to the distributor dispute, and increasingly intertwined with it, is the JILK Construction case — a story that adds allegations of sexual harassment, fabricated whistleblower reports, and arbitration corruption to an already combustible picture.
In October 2017, JILK Construction Company Limited was awarded three civil works contracts by Kenya Breweries Limited for what was branded Project Nafasi — the Ksh15 billion revival of the dormant Kisumu Brewery, described at the time as one of the largest private investments in Western Kenya since independence. The project was designed to integrate more than 15,000 sorghum farmers into KBL’s supply chain and create over 100,000 jobs. JILK, through its CEO Sammy Maina Kamau, completed the works and handed over the site. Disputes emerged over the final amount owed.
JILK initially claimed Ksh163 million. The matter was referred to arbitration, with Mutinda Mutuku appointed as sole arbitrator by the Architectural Association of Kenya. What KBL discovered — or so it alleges — was that Mutuku had undisclosed prior financial dealings with JILK, having received payments totalling hundreds of millions of shillings from JILK before his appointment, and was in regular contact with Kamau during the proceedings. KBL moved to have Mutuku recuse himself. The Architectural Association declined. The High Court noted the seriousness of the allegations but similarly declined to remove him. By the time the arbitration process neared an award, the claim had escalated from Ksh163 million to Ksh2.45 billion — a 1,400 percent increase that KBL describes as evidence of a compromised process.
In December 2024, KBL filed a petition seeking to annul the arbitration proceedings entirely, and obtained ex parte conservatory orders barring the arbitrator from delivering his award. These orders, granted by Justice Freda Mugambi, were described by legal observers including former Law Society of Kenya President Nelson Havi as unprecedented in duration — three months, when such orders typically last no longer than 14 days. Havi publicly asked why Diageo, the majority EABL shareholder and not a registered trading company in Kenya, appeared to have acted as the effective client and project supervisor during construction. If JILK’s allegations are correct and the whistleblower report is fabricated, Havi noted, the implications in criminal law would be severe.
JILK alleges the whistleblower mechanism was deployed as a retaliatory instrument. In January 2020, two female employees of JILK filed reports at Muthaiga Police Station alleging that a foreign contractor on the Kisumu project had sexually harassed and indecently assaulted them. JILK wrote a formal complaint to KBL. The DCI wrote to EABL’s managing director noting the investigation. KBL, through Group Corporate Relations Director Eric Kiniti, acknowledged the complaint — but only after the foreign contractor had already left the country. JILK’s CEO now alleges that EABL facilitated the contractor’s departure before he could be investigated, then deployed a whistleblower report two years later as retaliation for the sexual harassment complaint. EABL has denied this characterisation entirely and called it malicious.
What is not in dispute is that Justice Mugambi subsequently recused herself from the KBL constitutional petition challenging the arbitration, citing concerns about impartiality — the same judge who had granted KBL the controversial ex parte order. The file was sent to the Principal Judge of the Commercial Division for reassignment. As with the Bia Tosha matter, a judicial recusal at a critical moment has left the petitioner scrambling for continuity.
THE BOND THAT RAISED QUESTIONS
Against the backdrop of these compounding legal exposures, EABL’s financial engineering in October 2025 deserves closer examination. The company redeemed its Ksh11 billion five-year corporate bond a full year before its October 2026 maturity date, invoking its call option. It simultaneously issued a replacement five-year bond of identical size at a modestly lower coupon rate of 11.8 percent versus the original 12.25 percent.
EABL presented this as a balance sheet optimisation, saving Ksh1.347 billion in interest over the combined bond period. Francis Gaitho, in a detailed commentary, characterised the saving as financial sleight of hand — the reduction in interest costs derived entirely from skipping the final year’s payments on the original bond, not from any genuine refinancing efficiency. The new bond, also heavily oversubscribed, signals that investors regard EABL as a reliable instrument. But the timing has prompted questions.
The early redemption and re-issuance coincided with EABL’s suit against the Kenya Revenue Authority for Ksh800 million, which it claims was overpaid as VAT in 2018. Here is the detail that the Gaitho commentary pursues with particular force: the Ksh800 million in question was recovered by EABL from its distributors via direct debit from the DFS accounts, even though those distributors had individually met their own tax obligations. EABL collected the money from 120-plus distributors without their consent and in defiance of their own tax compliance. Now it is suing KRA to get that money back. If the courts rule in EABL’s favour, the question of where that money goes — to the 120-plus distributors who originally bore it, or into EABL’s treasury — has not been addressed by the company. The distributors who bore the burden have no mechanism for recovery and no visibility into the proceedings.
THE EXIT AND THE ENFORCEMENT CLIFF
Everything in this accumulation — the Bia Tosha contempt, the COMESA fine, the JILK arbitration, the DFS VAT recovery, the bond manoeuvre — converges on a single fulcrum point: the Diageo-Asahi transaction.
Diageo currently holds its 65 percent EABL stake through Diageo Kenya Limited, a 100 percent Diageo-owned Kenyan vehicle. The transaction will see this stake pass to Asahi at Ksh590.51 per share — a premium of 134 percent over the Ksh252 market price when the deal was announced in December 2025. For the minority shareholders of EABL who saw their shares surge nearly 19 percent on the announcement day, this is a windfall. For Bia Tosha, JILK, and anyone else with a pending claim against Diageo or KBL as a Diageo subsidiary, the transaction is an enforcement cliff.
Diageo’s affidavit argues that the deal concerns shareholder-level assets and that EABL, KBL, and UDV Kenya will remain as Kenyan operating entities fully capable of satisfying any future judgment. The technical argument has merit as far as it goes. But it misses the practical reality that Bia Tosha’s lawyers and Havi have both articulated: the contempt proceedings named Diageo and its officers. The Supreme Court found Diageo’s subsidiaries in contempt. The scale of damages Bia Tosha seeks — potentially in the tens of billions of shillings — would be enforceable against a parent company with $48 billion in market capitalisation far more readily than against a mid-cap Kenyan brewer suddenly owned by a Tokyo conglomerate with no pre-existing connection to the dispute.
Bia Tosha’s advocate Kenneth Kiplagat put it without ambiguity in a statement to Bloomberg on January 7, 2026: ‘If they succeed in disposing of their only asset in Kenya, we will not be able to execute a judgment against Diageo.’ The phrase ‘only known asset’ is key. Diageo retains no operational presence in Kenya after this sale. Its general counsel’s assurances of continued submission to Kenyan jurisdiction have no physical backing once the stake is transferred.
JILK’s application similarly notes that regulatory approvals from the Capital Markets Authority and the Competition Authority of Kenya are anticipated between May and June 2026. The April 30 judgment deadline it requested was calculated with this timeline in mind. If the courts rule against it after Diageo has divested, JILK will be left with an award against a UK company with no Kenyan assets and every legal incentive to contest enforcement.
THE FEBRUARY 26 ABDICATION AND THE CJ ACCUSATION
The sequence of events on February 26, 2026, is, even stripped of any conspiracy theory, a remarkable coincidence of timing. Bia Tosha’s substantive application — the one seeking to block the share transfer as a constitutional matter — had been scheduled for hearing on that date before Justice Bahati Mwamuye. When parties logged into the virtual platform, Justice Mwamuye informed them he had been transferred to Kiambu High Court, effective April 1. He declined to extend the interim orders that had temporarily restrained the share transfer. He directed the file to an incoming judge and proposed April 9 as the next mention date.
EABL issued a press release celebrating the outcome later that day, noting that regulatory processes could now continue uninterrupted. By April 9, the critical window within which Bia Tosha believed the regulatory approvals could be obtained may have narrowed significantly.
Judicial transfers are routine administrative matters, and this point must be stated clearly. The Judiciary’s official position is that the transfers were part of standard administrative deployments to strengthen service delivery across stations. But for a petitioner who has spent nine years in court, whose Supreme Court-backed contempt proceedings are still unresolved, and whose application is now postponed past the point at which it can practically matter, routine administrative action and targeted obstruction produce exactly the same result. It is this indistinguishability that has driven Bia Tosha to language that has no precedent in Kenyan commercial litigation.
In documents filed before Chief Justice Martha Koome, Burugu alleges that ‘the impermissible diplomatic interventions to secure a desired outcome in this matter presents a most dangerous and unparalleled surrender of the sovereignty of the people of Kenya.’ She invokes ‘Epstein-Prince-Andrew-type interferences through diplomatic and Royal intercessions’ as the mechanism. The reference gains contemporary precision from the February 19, 2026 arrest of Andrew Mountbatten-Windsor on suspicion of misconduct in public office for allegedly sharing confidential trade documents with Jeffrey Epstein while serving as UK trade envoy. Whether any of this constitutes anything approaching the interference Bia Tosha alleges, the court filings do not substantiate. But the intensity of the language reflects an accumulation of grievance that is, on the documented record, entirely proportionate to the sequence of events the company has experienced.
The company has asked the Chief Justice to appoint a fresh judge and reinstate the expired orders. The Judiciary has made no public response.
THE STRUCTURAL QUESTION KENYA CANNOT IGNORE
The question posed by the convergence of these cases reaches beyond Bia Tosha and JILK. It concerns the capacity of Kenya’s legal system to provide credible protection to domestic parties in their dealings with multinational corporations — particularly when those corporations are in the process of exiting the jurisdiction.
Kenya has consistently sought to position itself as a reliable arbitration and commercial dispute resolution hub for the region. The Kisumu Brewery case, in which KBL obtained ex parte orders blocking an arbitral award for three months and then saw the judge handling the matter recuse herself, raises uncomfortable questions about arbitration integrity. The Bia Tosha case, in which a decade of Supreme Court-endorsed findings has not produced a single day of compliance from the contemptors, raises uncomfortable questions about enforcement.
Together, they illustrate the limits of formal legal rights in the face of a determined, well-resourced corporate actor. EABL controls 90 percent of the beer market. Its annual legal budget exceeds what most litigants can sustain over a lifetime of litigation. Its ability to rotate implicated executives, promote them out of the jurisdiction, and generate competing litigation is not matched by any mechanism that forces expedited compliance.
Diageo’s exit is not a judgment on this record. Markets do not adjudicate legal disputes. The Asahi Group, acquiring a dominant regional brewer at a substantial premium, has every incentive to complete the transaction quickly and cleanly, and no obligation to resolve disputes it did not create. The Ksh303.5 billion changing hands will make Diageo’s shareholders considerably wealthier. Whether it will ever produce a single shilling for Bia Tosha, or for the 120-plus distributors who had Ksh800 million withdrawn from their bank accounts, or for the two women whose harassment reports were allegedly used as the raw material for a corporate retaliation campaign, is a question that the transaction documents do not address.
Anne-Marie Burugu has been fighting this battle since 2016. She has won in the High Court, the Court of Appeal, and the Supreme Court. She has watched each win become the basis for new litigation by her opponent. She watched the judge hearing her latest application announce a transfer on the day he was supposed to hear her and walk off the virtual platform. She has now written to the Chief Justice using language borrowed from a global scandal involving a British royal and a convicted sex offender, because nothing in the conventional vocabulary of legal protest has been sufficient to communicate the weight of what has happened to her company over the last decade.
That language may ultimately prove to be overreach. The allegations of diplomatic interference are not substantiated in what is publicly available. But the underlying grievance — that a company which has consistently won in every court has been unable to enforce a single one of those wins — is not in dispute. It is, on the evidence, accurate. And that fact is a more serious indictment of Kenya’s commercial justice system than any diplomatic interference allegation could be.
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