The High Court has dismissed an application by Bia Tosha Distributors Limited seeking interim orders to stop the completion of a proposed transaction involving East African Breweries Limited (EABL), Diageo and Asahi Group Holdings pending the determination of proceedings before the Court of Appeal.
In its ruling, the court held that Bia Tosha had already chosen to pursue relief before the Court of Appeal and could not return to the High Court seeking similar interim orders.
The judge observed that granting the application would undermine the hierarchy of courts and risk conflicting decisions between courts handling the same matter.
“Having chosen to move to the Court of Appeal in an attempt to obtain relief, the petitioner cannot now return to this court seeking similar orders. Such a course would not be respectful to the hierarchy of courts and may embarrass the judicial system,” the court ruled.
The court further noted that the issues raised in the application were already pending before the appellate court and that it could not determine matters actively under consideration by the Court of Appeal.
Bia Tosha argued that it was seeking temporary conservatory orders pending the hearing and determination of its appeal and maintained that the application was not barred by the doctrine of res judicata.
However, the judge found that the applicant had failed to establish sufficient grounds for the grant of conservatory orders.
“The applicant has not persuaded the court that conservatory orders ought to issue in the circumstances of this case,” the judge stated.
Consequently, the court found the application lacked merit and dismissed it with costs.
