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Court of AppealAllowedApplication dated 13th March 2025 (in intended appeal from Nairobi High Court Constitutional Petition No. 249 of 2016)

UDV (Kenya) Limited v Bia Tosha Distributors Limited & 3 others (Civil Application E165 of 2025) [2025] KECA 1862 (KLR)

Court of Appeal
7 November 2025
2,525 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused High Court contempt proceedings against UDV (Kenya), confirming that no one can be punished for contempt before first being heard.

What this practically means

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Executive summary

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This is a single-judge-panel-free, unanimous decision of a three-judge bench of the Court of Appeal at Nairobi allowing a rule 5(2)(b) application by UDV (Kenya) Limited for stay of a High Court ruling of Mugambi, J. dated 4th March 2025 and of further proceedings in Constitutional Petition No. 249 of 2016 (Bia Tosha Distributors Limited v Kenya Breweries Limited and Others). The dispute arises from a decade-long distributorship petition. The Supreme Court, in a judgment dated 17th February 2023, had reinstated the High Court's conservatory orders of 29th June 2016 and remitted the matter to the High Court, including a pending contempt application. Its Clarification Ruling of 26th May 2023 stated the High Court was to punish contempt only if satisfied of its nature and extent. Mugambi, J. nonetheless ruled that the applicant had to purge contempt before being granted audience. All counsel before the Court of Appeal agreed the learned Judge erred in light of the Clarification Ruling and a consent order recorded on 3rd February 2025. Applying the settled two-limb rule 5(2)(b) test, the Court held the intended appeal arguable - including on the unresolved effect of Ong'udi J's ruling of 28th April 2023 - and found the appeal would be rendered nugatory because the impugned ruling denies an alleged contemnor audience before being heard, with penal consequences touching liberty and property. The Court granted the stay orders sought, with costs to abide the outcome of the intended appeal, and urged the parties to settle the underlying dispute.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has an arguable appeal against the High Court ruling of 4th March 2025
  2. 2.Whether, absent stay, the appeal would be rendered nugatory

Key legal issues

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01

Whether the intended appeal is arguable

Holding

Yes. The High Court ruling of 4th March 2025 was made in error in light of the Supreme Court's Clarification Ruling of 26th May 2023 and the consent order of this Court; the unresolved question of the effect of Ong'udi J's ruling of 28th April 2023 can only be determined on full consideration on appeal.

Reasoning

The Court found it common ground that the learned Judge acted in error by holding the applicant had to purge contempt before audience. The applicant had an application pending to clarify the orders of 29th June 2016, and Ong'udi J. had held the orders should be clarified before the contempt application was heard. Whether the Supreme Court Clarification Ruling altered Ong'udi J's ruling is a matter for full argument on appeal, establishing arguability.

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Whether the appeal would be rendered nugatory absent stay

Holding

Yes. If the ruling stands, the applicant would be denied audience and potentially condemned unheard, with contempt findings attracting penal consequences affecting liberty and property.

Reasoning

The impugned ruling denies the applicant audience until it purges contempt, yet it has not been heard on the contempt application. Proceeding without hearing it would violate its right to be heard, and a contempt finding carries penal consequences touching liberty and property, rendering the appeal nugatory if the orders are not granted.

p. 5

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy two principles: an arguable appeal and that the appeal will be rendered nugatory absent stay.
  • An alleged contemnor cannot be denied audience before being heard on and adjudged to be in contempt.

Court orders

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  1. 1.Stay of the ruling and orders of the High Court (Mugambi, J.) dated 4th March 2025 in Constitutional Petition No. 249 of 2016 pending the intended appeal
  2. 2.Stay of further proceedings in the said petition pending hearing and determination of the intended appeal
  3. 3.Costs of the application to abide the outcome of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Nairobi High Court Constitutional Petition No. 249 of 2016 - Bia Tosha Distributors Limited v Kenya Breweries Limited and Others
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is settled that an applicant seeking orders of stay of execution under rule 5(2)(b) must satisfy this Court on two principles: that it has an arguable appeal and, absent stay, the appeal, if successful shall be rendered nugatory
p. 4Test for stay under rule 5(2)(b)
we take the view that the applicant is correct in arguing that this holding effectively denies it audience (as an alleged contemnor) before it has been heard and adjudged to be in contempt
p. 4Audience of alleged contemnor
We are, therefore, satisfied that the application dated 13th March 2025 is merited, and we hereby grant the orders sought therein.
p. 5Final orders - stay granted
The costs of the application shall abide the outcome of the intended appeal.
p. 5Costs order

Issues in the judgment

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minor

The judgment refers to the applicant's right to freedom of movement under 'article 39', but Article 39 of the Constitution concerns citizenship; freedom of movement is under Article 39 of the Bill of Rights as mistakenly cited by the applicant - apparent miscitation in the record.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "UDV (Kenya) Limited v Bia Tosha Distributors Limited & 3 others (Civil Application E165 of 2025) [2025] KECA 1862 (KLR)", Case Analysis (2025). Application dated 13th March 2025 (in intended appeal from Nairobi High Court Constitutional Petition No. 249 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1862/eng@2025-11-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.