https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7995

Bia Tosha Distributors Ltd v Kenya Breweries Ltd & 4 others (Petition 249 of 2016) [2026] KEHC 7995 (KLR) (Constitutional and Human Rights) (2 June 2026) (Ruling) Neutral citation: [2026] KEHC 7995 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition 249 of 2016 G Mutai, J June 2, 2026 Between Bia Tosha Distributors Limited Petitioner and Kenya Breweries Limited 1st Respondent UDV (Kenya) Limited 2nd Respondent East African Breweries Limited 3rd Respondent Diageo PLC 4th Respondent and Cogno Ventures Limited Interested Party Ruling Introduction 1.This matter has a long, chequered history. The dispute between the parties has been litigated in this Court, the Court of Appeal, and the Supreme Court. As at the date of this ruling, conservatory orders issued in 2016 in favour of the Petitioner remain in force pending the hearing and determination of the substantive petition. 2.The 4th Respondent has recently announced that it intends to exit the Kenyan market by selling its shares in the 3rd Respondent to a Japanese multinational corporation. The transaction is in progress and subject to outstanding regulatory approvals. 3.Subsequently, and central to the present dispute, the Petitioner, apprehensive that the departure of the 3rd Respondent will prejudice its case, filed an application dated 5th January 2026 seeking orders that:i.Spent;ii.Pending the hearing and final determination of the Petition herein, this Court be pleased to grant a conservatory injunction order restraining the 4th Respondent, whether by itself, its agents, nominees, subsidiaries or affiliates, from selling, transferring, encumbering, pledging, or in any manner disposing of its shareholding in East African Breweries Limited (including but not limited to Kenya Breweries Limited and UDV (Kenya) Limited), or any part thereof;iii.Pending the hearing and final determination of the Petition herein, this Court be pleased to grant a conservatory order preserving the status quo in respect of the ownership, control and legal incidents of the 4th Respondent's shareholding in East African Breweries Limited and its Kenyan subsidiaries;iv.The conservatory orders sought herein do issue for the purpose of preserving the substratum of the Petition herein, safeguarding the adjudicatory authority of this Court, and ensuring that the Petition is not rendered nugatory;v.Pending the hearing and final determination of the Petition herein, this Court be pleased to restrain the 4th Respondent from taking any steps that would have the effect of wholly divesting itself of assets within the Republic of Kenya, in a manner that would defeat or frustrate the enforcement of any relief that may be granted under Article 23 of the Constitution;vi.For the avoidance of doubt, the orders herein are issued in rem and shall bind the subject shares and assets irrespective of any intended or purported contractual arrangements entered into after the filing of this application;vii.In compliance with the express directions of the Supreme Court, the Petition herein be heard immediately together, and contemporaneously, with all pending applications, and a composite ruling and judgment be rendered; andviii.The costs of this application be provided for. 4.In the ruling delivered on 9th April 2026, Mwamuye, J, dismissed the application and held as follows:“71.In conclusion, the Court finds that the Petitioner's Notice of Motion Application dated 5th January 2026 lacks merit but was not an abuse of the court process. The Court further finds that the Respondents are not presently subject to a finding of contempt of court, such as to be disentitled to audience. The Court also finds that the existing conservatory orders dated and issued on 29th June 2016 adequately preserve the substratum of the dispute.72.Consequently, the Court makes the following final orders:a.The Petitioner's Notice of Motion dated 5th January 2026 is hereby dismissed;b.The interim conservatory orders in force other than those issued in the ruling dated and delivered on 29th June 2016, if any, granted earlier be and are hereby discharged;c.Mention on 15th April 2026 before the Presiding Judge, Milimani CHR Division, for allocation to a Judge in that division and for directions towards the expedited hearing and determination of any other interlocutory applications and the Petition in compliance with the Supreme Court's directions; andd.No orders as to costs.” The Petitioner’s Application Dated 4th May 2026 5.The Petitioner herein filed the instant Notice of Motion application on 4th May 2026. The Petitioner seeks orders that:i.Spent;ii.Spent;iii.Pending the filing, hearing and determination of the Petitioner's intended appeal and application under Rule 5(2)(b) of the Court of Appeal Rules seeking interlocutory reliefs, this Court be pleased to suspend the ruling delivered on 9th April 2026;iv.Pending the filing, bearing and determination of the Petitioner's intended appeal and application under Rule 5(2)(b) of the Court of Appeal Rules, this Court be pleased to issue a conservatory order preserving the status quo in respect of the ownership, control and legal incidents of the 4th Respondent's shareholding in East African Breweries Limited;v.The conservatory orders granted herein do operate for the purpose of preserving the substratum of the Petition and the intended appeal and safeguarding the effectiveness of any eventual orders of this Court and the Court of Appeal;vi.The costs of this application be in the cause. 6.The Application is supported by the Petitioner’s Managing Director’s affidavit, dated the same day, and by the grounds on the face of the Application. 7.Ms Burugu deposed that the 4th Respondent had commenced the process of disposing of its controlling shareholding in East African Breweries Limited and its Kenya subsidiaries to the foreign entity Asahi Group Holdings Limited. She further deposed that, on 26th February 2026, the 4th Respondent’s Counsel informed the Court that the process of obtaining the relevant approvals was underway and that, therefore, the transaction was likely to be concluded in mid-June 2026. 8.She contended that the said shareholding constitutes the primary asset through which the 4th Respondent maintains an economic presence and enforcement nexus in Kenya and is therefore the only attachable asset against which any decree of this Court may be enforced. 9.The deponent averred that the Petitioner was aggrieved by the decision of Mwamuye, J, and that it had lodged a Notice of Appeal and moved the Court of Appeal of Kenya under Rule 5(2)(b) of the Court of Appeal Rules seeking interlocutory reliefs pending appeal. It is stated that the appellate court has since issued directions on the filing of responses and submissions. 10.Having regard to the foregoing, the Petitioner contends that the intended appeal is arguable and raises pertinent, substantial questions of law, including whether this Court erred in limiting the substratum of the Petition to distribution routes while disregarding the broader proprietary and commercial framework recognised by the High Court and the Supreme Court; whether the Court failed to apply properly the principles governing conservatory orders under Articles 22 and 23 of the Constitution; and whether the Court adopted an unduly restrictive approach to the nexus requirement, thereby excluding matters that directly affect the practical enforcement of the Petitioner’s rights. 11.The Petitioner is apprehensive that if the 4th Respondent successfully disposes of its controlling shareholding, it will effectively divest itself of its Kenyan asset base. The Petitioner contends that this will expose it to a real and immediate risk of being unable to enforce any judgment ultimately issued in its favour. The Petitioner therefore asserts that it stands to suffer prejudice and irreparable harm incapable of compensation by an award of damages. In the circumstances, it is contended that unless the orders sought are granted, both the intended appeal and the pending application before the Court of Appeal will be rendered nugatory. Accordingly, the Petitioner maintains that the threshold for the grant of conservatory orders pending appeal has been satisfied. 1st and 3rd Respondents’ Response 12.In reply to the Application, the 1st and 3rd Respondents, through the affidavit of Nadida Rowlands, filed a replying affidavit sworn on 6th May 2026. 13.Ms Rowlands deposed that the instant application is misconceived as this Court lacks jurisdiction to entertain it. This is because a similar application is pending before the Court of Appeal. In this regard, they contend that the Petitioner is pursuing parallel proceedings before two superior courts over the same subject matter, which amounts to an abuse of the Court process. She contended that once a party elects to invoke the jurisdiction of the Court of Appeal under Rule 5(2)(b) of its Rules, such a party cannot thereafter pursue a similar relief before this Court. 14.It was contended that the application is res judicata, as the issues raised and reliefs sought have already been determined by this Court in its ruling dated 9th April 2026. It is the case of the 1st and 3rd Respondents that the Petitioner is, in essence, seeking to reopen a matter that was determined. She urged that the present application does not introduce new facts or evidence arising after the delivery of the said Ruling to justify its filing. On that basis, the Respondents assert that the Petitioner is effectively inviting this Court to sit on appeal over its own decision, notwithstanding that it has since become functus officio. 15.Furthermore, the Respondents maintain that the Petitioner has failed to meet the threshold for the grant of conservatory orders. They reason that there is still no nexus between the impugned transaction concerning the sale of the 4th Respondent’s shares and the amended Petition, which principally concerns distributorship arrangements and goodwill payments. In addition, they posit that this Court, in its ruling dated 9th April 2026, already found that no evidence had been adduced to demonstrate any imminent threat to the substratum of the Petition. Be that as it may, the Respondents pointed out that the impugned orders are negative in nature and therefore not capable of being stayed. 16.In light of the foregoing, the Respondents assert that, contrary to the Petitioner’s contention, the Petition will not be rendered nugatory. In any event, they urged that the Petitioner failed to demonstrate how completion of the impugned transaction would hinder the enforcement of any decree that may ultimately be issued. It is further pointed out that the Petitioner’s claim is essentially monetary in nature and thus any loss likely to be suffered is quantifiable and capable of compensation by an award of damages. 17.On the other hand, however, the Respondents aver that they stand to suffer prejudice should the orders sought be granted, as the same would impose a disproportionate restraint on a substantial commercial transaction involving third-party rights, who are not parties to these proceedings. 18.Ms Rowland further deposed that Petitioner has erroneously served this application on the Capital Markets Authority and the Competition Authority of Kenya, neither of which are parties to this action, and that none of their regulatory decisions were the subject of the impugned ruling. 19.The Respondents further contended that the Petitioner had not offered any undertaking as to damages despite the scale of the potential loss likely to be occasioned. Consequently, they maintain that the balance of convenience militates against granting the orders sought. Lastly, the Respondents accuse the Petitioner of inordinate delay. 2nd Respondent’s Case 20.The 2nd Respondents filed their Grounds of Opposition dated 6th May 2026 vide which it was stated as follows:i.The application constitutes an abuse of process, the Applicant having sought substantially similar orders before the Court of Appeal under Rule 5(2)(b) in Civil Application No. E213 of 2026 - Bia Tosha Distributors Limited vs. Kenya Breweries Limited & Others, now pending hearing, with directions already issued, thereby unlawfully invoking two parallel original jurisdictions;ii.The application is bad in law as it seeks conservatory orders over assets that are separate and distinct from the subject matter of the Amended Petition, which is predicated on claims over distribution routes and goodwill against the 1st Respondent and allegedly to the 2nd Respondent as determined in the decision of the High Court, the Court of Appeal and the Supreme Court and not on shares indirectly held by the 4th Respondent or any of the Respondents;iii.The 4th Respondent, an international corporation listed on the London Stock Exchange, is a separate and distinct entity from the 1st and 2nd Respondents, against whom the claim for goodwill is made and who shall remain parties to the suit with sufficient capacity to honour any order that may be issued by this Court;iv.The shares of the 3rd Respondent are publicly traded on the Nairobi Stock Exchange and are freely transferable, and as a party to these proceedings, any transfer by the 4th Respondent does not prejudice assets within the Court's jurisdiction. In the event, the 3rd Respondent remains a leading listed company with vast assets, underscoring its capacity to meet any orders of this Court;v.The Applicant has not demonstrated how its claim for goodwill would be rendered nugatory by the sale of an indirect shareholding in a company that remains within the Court's jurisdiction and possesses substantial assets;vi.The Application fails to meet the threshold for an injunction pending appeal as the intended appeal is not arguable, and there is no risk of the substratum of the dispute (distribution routes) being rendered nugatory. The intended appeal is, in any event, frivolous, being anchored on a non-operative Further Amended Petition that is still the subject of objection and is merely filed, and its admissibility is pending determination by the Court;vii.The Application discloses no bona fide appellate issue and is in substance a disguised attempt to re-litigate matters already determined by this Court while impermissibly inviting this Court to sit on appeal over its own ruling of 9th April 2026;viii.The Application is misconceived as it seeks to stay a negative order arising from the ruling of 9th April 2026, which merely dismissed the application without imposing any positive obligation capable of execution, and there is therefore nothing arising therefrom that can properly be stayed and/or suspended; andix.The Applicant has abused the court process by engaging in forum shopping and instituting multiple proceedings seeking substantially similar orders arising from the same subject matter, involving identical issues and parties, thereby multiplying proceedings unnecessarily. 4th Respondent’s Case 21.In response to the application, the 4th Respondent’s counsel, Anthony David Willian Smith, filed a Replying Affidavit sworn on 6th May 2026. 22.Mr Smith averred that the instant application amounts to an abuse of the Court process owing to the Petitioner’s pending application before the Court of Appeal in Civil Application No. E213 of 2026, seeking similar reliefs. In this regard, the Petitioner is accused of forum shopping and duplicating proceedings. It is further asserted that, having invoked the appellate jurisdiction of the Court of Appeal, the Petitioner cannot properly return to the same Court that issued the impugned orders seeking similar reliefs. 23.In like manner, the Petitioner is faulted for inviting this Court to sit on appeal of its own decision, as the Petitioner seeks the same orders that were declined by this Court on 9th April 2026. Additionally, the 4th Respondent argues that reliance on the Constitution of Kenya and Rules 3, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 is inapplicable in the circumstances of this case. 24.Mr Smith further deposed that the central issue in dispute in the Amended Petition concerns the Petitioner’s proprietary interests in the distribution of products of the 1st and 2nd Respondents to certain distribution routes, based on goodwill paid by the Petitioner in the years 2000 and 2005 to secure the said routes. It is therefore reasoned that the dispute principally concerns the 1st and 2nd Respondents, who managed the relevant routes, contracts and operations in Kenya. He contended that the 4th Respondent is neither a party to any of the distribution agreements in issue nor involved in the shareholder-level control, upstream shareholding, or corporate ownership of the 1st, 2nd and 3rd Respondents.He stated that the Court, in its ruling dated 9th April 2026, determined that there was no nexus between the issues raised in the Petition and the 4th Respondent. 25.It is further contended that, even if the application were tenable, the Petitioner has failed to satisfy the threshold for the grant of conservatory orders. Mr Smith deposed that the intended appeal was not arguable as there is no nexus whatsoever between the subject matter of the Amended Petition and the 4th Respondent’s intended share sale to Asahi Group Holdings Ltd. Additionally, it is stated that the Petitioner failed to demonstrate that the intended appeal will be rendered nugatory if the orders sought in this Application are not granted. 26.In particular, he observes that this Court, in its ruling dated 9th April 2026, found that the existing conservatory orders issued on 29th June 2016 already preserve the core of the dispute fully. Further, it is averred that the impugned transaction does not involve a sale of Kenyan operating assets, given that the 1st, 2nd and 3rd Respondents are not parties to the transaction and that their legal existence, assets and obligations remain wholly unaffected by a change in their ultimate shareholder. It is further urged that the Petitioner’s intention in filing this Application is merely to obtain unwarranted security over the 4th Respondent’s assets in anticipation of a monetary award upon determination of the Amended Petition. Be that as it may, it was underscored that reciprocal enforcement mechanisms exist between Kenya and England, where the 4th Respondent is incorporated. 27.On the issue of prejudice, the deponent urged that the orders sought, if granted, will occasion immense prejudice not only to the 4th Respondent but also to third parties who are not before this Court. 28.Echoing the 1st and 3rd Respondents' position, Mr Smith urged that the Petitioner is guilty of inordinate delay, as the impugned Ruling was delivered on 9th April 2026 and the present Application was not filed until 4th May 2026.He added that the Court of Appeal Application was filed late, without any justification. Interested Party’s Case 29.Rebutting the Application, the Interested Party filed Grounds of Opposition dated 6th May 2026 on the ground that:i.The instant application is an abuse of the Court's process and a waste of scarce judicial resources, as the Petitioner/ Applicant has sought substantially similar reliefs before the Court of Appeal in Civil Application No. E213 of 2026; Bia Tosha Distributors Limited vs. Kenya Breweries Limited & Others, which application has been certified as urgent and directions for disposal issued by the Court of Appeal on 30th April 2026.ii.This Court does not have jurisdiction to issue status quo orders pending the hearing of the interlocutory application before the Court of Appeal.iii.The application is bad in law as it seeks to suspend the ruling delivered by Hon. Justice Bahati Mwamuye on 9th April 2026, which was a negative order not capable of suspension by this Court as sought.iv.The instant application is calculated to re-litigate the question of conservatory orders, which was determined by the Court in its ruling delivered on 9th April 2026.v.The prayers for conservatory orders brought ostensibly "for the purpose of preserving the substratum of the Petition" and "safeguarding the effectiveness of any eventual orders of this Court" are untenable as they purport to invite this Court to sit on appeal of its own decision delivered on 9th April 2026. This Court lacks jurisdiction to entertain the application.vi.Without prejudice to the above, the conservatory orders sought are not tenable in law as there is no nexus between the 4th Respondent’s shares subject of the instant application and the substratum of the Amended Petition before the Court, being a claim on the ownership of distributorship routes for distribution of the 1st and 2nd Respondents' products.vii.Without further prejudice to the foregoing, the Petitioner/Applicant has neither pleaded nor demonstrated any proprietary or equitable right over the 4th Respondent's shares and does not stand to suffer any prejudice or irreparable harm should the conservatory orders sought be declined.viii.Further, the conservatory orders sought are not only unnecessary and disproportionate, but would also amount to an unjust restriction of the 4th Respondent's right to deal with its property under Article 40 of the Constitution and are therefore inimical to public interest.ix.The Petitioner/Applicant has neither demonstrated that the intended appeal is arguable nor that the manner in which any change in shareholding of Diageo PLC in EABL would render the intended appeal nugatory.x.The instant application is an abuse of the court process, frivolous, lacks merit, and it is in the interests of justice that the same be dismissed forthwith with costs. Parties Submissions 30.The application was canvassed through oral and written submissions. The parties’ counsel made oral submissions on 8th May 2026. Due to the urgency of the matter, the Court reserved its ruling for 28th May 2026. 31.Okoth and Kiplagat Advocates, on behalf of the Petitioner, filed submissions dated 7th May 2026. 32.The oral submissions were made by Kiragu Kimani, SC and Dr Kenneth Kiplagat. Counsel opposed the averment that this Court is functus officio. In Counsel’s view, the doctrine of functus officio does not extinguish the Court's incidental and preservatory jurisdiction pending appeal. Furthermore, Kiragu Kimani, SC, argued that this Court has not made a final and conclusive decision on whether the Petitioner is entitled to a temporary preservation order pending the hearing and determination of the Court of Appeal application. In support of this proposition, Counsel cited the case of Odinga v IEBC & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) where it was held that the doctrine requires that a person is vested with adjudicative or decision-making powers to exercise those powers only once in relation to the same matter. 33.Correspondingly, Counsel argued that the allegation of res judicata is unfounded. Counsel underscored that the Supreme Court in Dickson Muricho Muriuki v Timothy Kagondu Muriuki & another [2014] eKLR held that res judicata would apply only if another court reached a conclusion on the same facts between the same parties. Counsel argued as well that the present Application does not seek a rehearing of the Petitioner’s initial Application, but rather seeks temporary preservation pending the determination of the Court of Appeal application. As such, Counsel maintained that the invoked jurisdiction is incidental and preservatory. To buttress this point, reliance was placed on the Code of Civil Procedure, Volume 1, 18th Edition, where it was highlighted that the court is not powerless to grant relief when the ends of justice and equity so demand, because the powers vested in the court are of wide scope and ambit. 34.Additional reliance was placed on the decision of the Court in Madhupaper International Limited V Kerr; Civil Application No. Nai 116 of 1985. 35.In any case, Counsel argued that the Petitioner had established sufficient ground for preservation of the substratum of the petition pending appeal. It was highlighted that the intended appeal raises substantial and arguable questions of constitutional and public law. Counsel added that the Petitioner had demonstrated a real and imminent risk that, without temporary preservation, the intended appeal and pending appellate application would be rendered nugatory. 36.Reliance was also placed in the case of Butt v Rent Restriction Tribunal [1982] 417 KLR, where it was held that whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed if allowed to happen is reversible, or if it is not reversible, whether damages will reasonably compensate the aggrieved party. 37.Counsel asserted that, since the instant Application is temporary and preservatory in nature, any prejudice that may be suffered by the Respondents is temporary and capable of being compensated. Conversely, Counsel stressed that failure to issue the sought orders risks irreversible consequences to the Petitioner and to the effectiveness of the appellate process. In light of this, Counsel submitted that the balance of justice favours temporary preservation of the substratum of the appeal pending intervention by the Court of Appeal. 1st and 3rd Respondents’ Submissions 38.The 1st and 3rd Respondents, through their counsel, Iseme, Kamau and Maema Advocates, filed submissions dated 7th May 2026. Counsel set out the issues for determination as follows: whether this Court has jurisdiction to entertain the application; whether the application is res judicata; whether the Petitioner has met the threshold for the grant of the orders sought; where the balance of convenience lies; and whether the application is defeated by inordinate delay. 39.Kamau Karori, Senior Counsel, for the 1st and 3rd Respondents, answered the first issue in the negative. He submitted that the application is bad in law as the Petitioner had already invoked the jurisdiction of the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules. Counsel urged that the Petitioner had sought similar reliefs before the appellate Court. It was asserted that a party cannot invoke parallel proceedings in two Courts, as while the High Court and the Court of Appeal possess jurisdiction to grant interim relief pending appeal, that jurisdiction is concurrent and cannot be exercised simultaneously over the same subject matter, which creates the risk of inconsistent determinations, undermines the hierarchy of courts and encourages forum shopping. 40.Counsel relied on the decision of the Court in the case of African Banking Corporation Limited vs Intex Construction Limited & another [2021] KEHC 7594 (KLR) where it was held that although the High Court and the Court of Appeal possess concurrent jurisdiction to grant stay pending appeal, similar applications cannot be maintained simultaneously before both courts and doing so amounts to an abuse of the court process. 41.Counsel also relied on the case of Gathara Chuchu & 473 Others v Gititu Coffee Growers Co-operative Society Ltd & Another [2008] eKLR and Nishith Yogendra Patel v Pascale Mireille Baksh & another [2009] KECA 241 (KLR). 42.The present Application was also faulted for seeking to re-open issues that were conclusively considered and determined by this Court. Counsel noted that although it is framed as an application for stay pending appeal, it seeks the same substantive outcome previously sought and rejected by this Court. Reliance was placed ET v Attorney General & another [2012] KEHC 5506 (KLR), where it was held that cosmetic re-packaging cannot defeat the doctrine of finality in litigation. 43.That notwithstanding, Counsel submitted that the threshold for the grant of conservatory orders and stay pending hearing of the Court of Appeal application had not been met by the Petitioner. Counsel submitted that there is no prima facie case disclosed as the question on the 4th Respondent’s share transaction was determined by this Court and found to bear no nexus to the substantive Petition. Secondly, the alleged risk of prejudice was determined to be unfounded, as the Respondents remain extant legal entities within the jurisdiction, and the law provides mechanisms for enforcing judgments, including against foreign entities. Thirdly, the Court found that the substratum of the Petition is already well preserved by the conservatory orders that were issued on 29th June 2016. Counsel argued that the balance of convenience plainly favours the Respondents as issuance of the orders would disrupt a substantial commercial transaction involving third-party interests that are not the subject of the Petition. 44.On stay of execution, Counsel submitted that the prayer for stay is misconceived since the ruling dated 9th April 2026 merely declined to grant conservatory orders and imposed no positive obligation capable of execution. The ruling was in effect a negative order incapable of being stayed.Counsel referred the Court to the Court of Appeal decision in Kaushik Panchamatia & 3 others vs. Prime Bank Limited & another [2020] KECA 418 (KLR), where it was held that an order dismissing an application is a negative order and a negative order is incapable of being stayed as there is nothing to stay. On this ground alone, the prayer for stay is incompetent and ought to fail. 45.Like reliance was placed in Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR). 46.Concluding, Counsel asserted that the instant Application is defeated by inordinate delay and therefore undeserving of any equitable or discretionary relief. 2{{^nd}} Respondent’s Submissions 47.The 2nd Respondent’s advocates, Oraro and Company Advocates, filed submissions dated 7th May 2026. Counsel set out the issues for determination as:whether the concurrent pursuit of similar reliefs before this Court and the Court of Appeal renders the present Application an abuse of process, and whether the Petitioner is entitled to the reliefs sought in the Application. 48.George Oraro, Senior Counsel, submitted that the Petitioner’s pursuit of two concurrent proceedings amounts to duplication and impermissible forum shopping, which constitutes an abuse of the Court process. In support of this position, Counsel relied on Mumba & 7 others v Munyao & 148 others [2019] KESC 83 (KLR). 49.In light of the decisions in authorities relied on, Counsel submitted that institution of multiple or parallel proceedings on the same subject matter or simultaneously pursuing reliefs in different courts in a manner that constitutes forum shopping, undermines the proper administration of justice as was stated in Satya Bhama Gandhi vs. Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR). 50.On the second issue, echoing the guiding legal principles for the grant of conservatory orders, Counsel submitted that the intended appeal does not raise any arguable issue insofar as it is anchored on the ownership and shareholding of the 4th Respondent, which the Petitioner seeks to restrain. Further, the intended appeal is premised on a Further Amended Petition dated 30th January 2026, which has not yet been admitted by this Court.In any event, Counsel stated that there is no nexus between the application and the Amended Petition dated 20th June 2016. 51.Counsel argued that the application fails to meet the threshold of an arguable appeal to warrant the reliefs sought, and hence, the issue of the Petition being rendered nugatory does not arise.In any event, it was noted that the 4th Respondent remains fully within the jurisdiction of this Court and unaffected in its capacity to meet any eventual decree, a position that was affirmed in Delina General Enterprises (K) Ltd vs. Kenol-Kobil Limited [20191 KEHC 12251 (KLR). Ultimately, Counsel argued that the balance of convenience in this matter militates against the grant of the orders sought. 52.Counsel added that both the 3rd and 4th Respondents aresubject to stringent regulatory oversight and public disclosure obligations. As such, the grant of the orders sought would also send a serious chill through the operations and investment climate of the Nairobi Securities Exchange and undermine the regulator's role. 53.Further to this, Counsel argued that this Court, in its ruling dated 9th April 2026, did not issue any positive order capable of execution. Reliance was placed in Patricia Njeri & 3 Others v National Museum of Kenya [2004] KEHC 1614 (KLR), where the Court observed as follows: “as Miss Kirimi for the Respondent pointed out, there was nothing which this Court could stay. The Appellants sought from the lower court an order for injunction which was refused. That refusal did not result in any positive order that was capable of execution, and the application to stay such refusal is therefore superfluous”. 4th Respondent’s Submissions 54.In like fashion, the 4th Respondent filed submissions dated 7th May 2026 through Messrs. Njoroge Regeru and Company Advocates. 55.Njoroge Regeru, SC, recapped that the present application is a duplication of the Court of Appeal application as the twoApplications seek the same Orders and are based on similar grounds. Further, both applications seek Orders pending the hearing and determination of the intended Appeal. Consequently, it was contended that this amounts to forum shopping and an abuse of the Court process, and foreshadows the real risk of conflicting Court decisions. 56.Reliance was placed in Nishith Yogendra Patel (supra), where the Court of Appeal castigated the conduct of filing Applications for Stay in both the High Court and the Court of Appeal and seeking to prosecute the two simultaneously. Counsel therefore urged this Court to decline jurisdiction over this matter. 57.Reliance was placed in African Banking Corporation Limited (supra) and Gathara Chuchu & 473 Others v Gititu Coffee Growers Co-operative Society & another [2008] eKLR. 58.Further to this, Counsel pointed out that the present application is a duplication of the dismissed Application, which is essentially a call to this Court to sit on appeal against its own decision. Equally, it was submitted that the issues raised in the dismissed Application relating to factors that ought to be proven in an application for conservatory orders, and which have been replicated in the current Application, ought not to be delved into as they are barred by the doctrine of res judicata. It was urged that the Petitioner, in filing the instant application, deliberately conflated the issues, thereby creating confusion for both the Respondents and the Court. 59.Furthermore, Counsel submitted that the Application was filed 26 days late, thus Petitioner is guilty of inordinate delay and failed to issue a justification. Counsel submitted that unexplained delay militates against the grant of orders pending appeal, as was held in Shah Rekhavanti Pankaj v Bank of Baroda & another (2021) KEHC 3180 (KLR). 60.On conservatory orders, Counsel reiterated that there is no nexus between the Amended Petition and the current Application, hence no prima facie case has been established. Counsel urged that while the Petitioner seeks to rely on an issue that is not in the Amended Petition, the Supreme Court affirmed that parties are bound by their pleadings in Raila Amolo Odinga & Another v IEBC & 2 Others [2017] eKLR; thus, there is no basis for departure from this finding. Equally, he added that the issue is res judicata and cannot be re-litigated in the instant Application. 61.Counsel further submitted that the Petitioner had not demonstrated that it will suffer substantial loss if the Orderssought are not granted. It was noted that the Amended Petition does not include a claim for monetary relief. Even so, Counsel contented that even if there was a monetary claim, there was no evidence that completion of the subject transaction would make it impossible for the Petitioner to enforce such a judgment. Counsel underscored that under the Foreign Judgments (Reciprocal Enforcement) Act, Kenya has reciprocal enforcement mechanisms with England and Wales, where the 4th Respondent is incorporated and based. Counsel as such argued that the balance of convenience tilts in the Respondents' favour as issuance of the sought orders would greatly prejudice them and third parties not before the Court. 62.Counsel likewise argued that the intended Appeal is not arguable and is frivolous. In any event, Counsel stated, the Court of Appeal is best placed to determine the question of the arguability of the appeal. 63.Concluding, Counsel submitted that the Petitioner had not offered security, which is a specific requirement under Order 42 Rule 6 of the Civil Procedure Rules. On this ground, it was argued that the Application ought to fail.Reliance was placed on Chatur Radio Service v Phonogram Limited [1994] eKLR, where it was held that security for damages is especially critical, given the size of the transaction the Petitioner seeks to stop on the basis of unproven claims. 4th Interested Party’s Submissions 64.Issa and Company Advocates for the 4th Interested Party filed submissions dated 7th May 2026. 65.Prof Githu Muigai, SC, on an opening note, submitted that the instant Application is an abuse of the Court process and a waste of judicial resources, as a similar application was also filed before the Court of Appeal. 66.Counsel submitted that the prayers for the grant of conservatory orders restraining the disposal of the 4th Respondent's shares in the 3rd Respondent and for maintenance of the status quo in respect of the ownership and control of the said shareholding pending the hearing and determination of the intended appeal by the Petitioner, are sub-judice. Counsel noted that the Supreme Court in Kenya National Commission on Human Rights v Attorney General Independent Electoral & Boundaries Commission & 16 Others Interested Parties [2020] KESC 54 (KLR) guided that the purpose of the sub-judice rule is to stop the filing of a multiplicity of suitsbetween the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. On this premise, Counsel urged that this Court lacks jurisdiction to entertain this matter. 67.Furthermore, Counsel argued that this Court’s orders dated 9th April 2026 were not positive orders. It was submitted that it is trite law that a negative order cannot be the subject of a suspension or stay order, as there is no positive obligation placed on the parties by the dismissal order. In the circumstances, Counsel urged that the ruling dated 9th April 2026 cannot be suspended as sought. 68.Similarly, Counsel submitted that the Petitioner, in the instant application seek to re-litigate the issue of conservatory orders restraining the sale of the 4th Respondent’s shares, which issue was settled with finality by this Court in the said Ruling, hence the Court is now functus officio. Reliance was placed in Morris Mutwiri v Republic [2025] KEHC 13717 (KLR), where it was held that a Court cannot sit on appeal of its own decision. 69.Prof Muigai further submitted that issuance of conservatory orders is untenable in law as this Court already applied the applicable laws in the issuance of such orders before it rendered its Ruling. Counsel submitted that there is no nexus between the 4th Respondent’s shares and the substratum of the Amended Petition. Counsel pointed out that the Petitioner had not demonstrated any proprietary right in the 4th Respondent’s shares or shown how the sale would threaten the distributorship routes, which is the key issue in the petition before the Court. 70.Counsel highlighted that the Petitioner’s claim is anchored on a Further Amended Petition, which is yet to be allowed by this Court, hence the claim is untenable. Similarly, Counsel argued that the Petitioner had not demonstrated that the intended appeal is arguable or that it would be rendered nugatory by a change of the 4th Respondent’s shareholding in the 3rd Respondent. 71.Finally, Counsel submitted that the instant application was filed late as it was filed 25 days after delivery of the impugned ruling, and as such had been brought after an undue, unexplained, inordinate delay, which militates against the grant of the orders sought. Counsel thus urged that the application be dismissed. Analysis and Determination 72.I have considered the application now before the court, the responses thereto, as well as the written and oral submissions of the parties. I note that in a ruling delivered on 9th April 2026, this court, per Bahati Mwamuye, J., dismissed the application dated 5th January 2026 and discharged interim conservatory orders in force other than those issued on 20th June 2016. 73.The ruling was in respect of an application filed under Article 23 (3) (b) and (c) of the Constitution of Kenya, 2010, vide which the following orders were sought:-a.Spent.b.That pending hearing and final determination of the petition herein, this court be pleased to grant a conservatory injunction order restraining the 4th Respondent, whether by itself, its agents, nominees, subsidiaries or affiliates, from selling, transferring, encumbering, pledging, or in any manner disposing of its shareholding in East African Breweries Limited (including but not limited to Kenya Breweries Limited and UDV (Kenya Limited) or any part thereof;c.That pending the hearing and determination of the petition herein, this Honourable Court be pleased to grant a conservatory order preserving the status quo in respect of the ownership, control and legal incidents of the 4th respondent’s shareholding in East African Breweries Limited and its Kenyan subsidiaries;d.That the conservatory orders sought herein do issue for the purpose of preserving the substratum of the Petition herein, safeguarding the adjudicatory authority of this Honourable Court, and ensuring that the Petition is not rendered nugatory;e.That pending the hearing and final determination of the petition herein, this Honourable Court be pleased to restrain the 4th Respondent from taking any steps that would have the effect of wholly divesting itself of assets within the Republic of Kenya, in a manner that would defeat or frustrate the enforcement of any relief that may be granted under Article 23 of the Constitution.f.That for the avoidance of doubt, the orders herein are issued in rem and shall bind the subject shares and assets irrespective of any intended or purported contractual arrangements entered into after the filing of this application;g.That in compliance with the express directions of the Supreme Court, the Petition herein be heard immediately together, and contemporaneously with all pending applications, and a composite ruling and judgment be rendered;h.That the costs of this application be provided for. 74.Upon delivery of the ruling, the petitioner’s counsel made an oral application for a conservatory order pending appeal. The application was declined. The petitioner was directed to file a formal application for the court's consideration. Rather than filing such an application, the petitioner opted to seek a conservatory order from the Court of Appeal. Although the application was certified urgent by the Court of Appeal, no interim relief was granted. That forced the petitioner to file the instant application before this court. 75.In my view, the Court must consider and determine the following issues:-1.Whether this Court can issue the orders sought, taking into consideration that a Rule 5(2)(b) application has been filed in the Court of Appeal?2.Whether the Court is functus officio?3.Whether the application is res judicata?4.Whether a case has been made for issuance of orders sought by the Petitioner;5.Costs.I will look at these issues in turn. Whether this Court can hear and determine the instant application when a Rule 5(2)b) application is pending at the Court of Appeal? 76.In my view, the first issue raises a jurisdiction question and must therefore be heard and determined first. The Court of Appeal, in the case of Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR), stated as follows regarding jurisdiction:“Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The subordinate court could not, therefore, entertain the suit and allow only that part of the claim that was within its pecuniary jurisdiction. In another locus classicus case in this subject, this Court pronounced: Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989):“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction… Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” 77.It is common ground that the Petitioner has a pending Rule 5(2)(b) application before the Court of Appeal. The parties agree that the High Court and the Court of Appeal have concurrent jurisdiction to issue orders staying the execution of an impugned ruling or judgment pending appeal, or, in appropriate cases, to grant injunctive relief. What is in dispute is whether a party that has chosen to go to the Court of Appeal for temporary relief can, if the remedy is not immediately granted in the appellate court, return to the High Court. The Petitioner contends that this is possible. In its view, the instant application is intended to ensure that the substratum of the appeal isn’t lost while the appellate court considers the matter before it. 78.Can this Court hear the application in these circumstances? I will refer to a number of authorities. In the case of Equity Bank Limited v West Link Mbo Limited [2013] KECA 320 (KLR), Kiage, JA, in his judgment, quoted a passage from the judgment of the Court of Appeal in Gurbux Singh Suiri & Another v Royal Credit Ltd; Civil Application NAI 281 of 1995, wherein the learned Judges of Appeal stated as follows:-“In ordinary circumstances, the Court has only appellate jurisdiction and in the absence of Rule 5(2) (b), a party who has been refused a stay of execution or an injunction by the High Court would have been obliged to apply to the Court of Appeal to set aside the refusal and then, having done so, to grant the stay or injunction. That is what is contemplated by Order 41 Rule 4(1) of the Civil Procedure Rules. But because of the existence of Rule 5(2) (b), one does not have to apply to the Court to first set aside the refusal by the High Court and then having set aside the High Court order, to grant one itself. That clearly is the sense in which the expression ‘independent original jurisdiction’ is to be understood, and that was made abundantly clear in the GITHUNGURI case, supra, by use of the expressions such as “we have to apply our minds de novo or ‘It is not an appeal from the learned judge’s discretion to ours.” 79.Mugure Thande, J, considered, in African Banking Corporation Limited v Intex Construction Limited & another [2021] KEHC 7594 (KLR), whether a party could sustain two applications for stay pending appeal. The learned Judge held that:“16.Whereas it is clear from the cited legal provisions that this Court and the Court of Appeal have concurrent jurisdiction to grant stay of execution, that jurisdiction cannot be exercised at the same time. A party who has a pending application for stay in the High Court must await its outcome before moving to the Court of Appeal to seek similar orders. This was the holding in Gathara Chuchu & 473 Others v Gititu Coffee Growers Co-operative Society & Another [2008] eKLR, where Nambuye, J (as she then was) stated and I concur:In this court's construction of the Court of Appeal case law on concurrent jurisdiction of the superior court and the Court of Appeal, on the granting of the relief of stay pending appeal, it does not mean that both courts can become seized of the matter, handle it simultaneously and rule on it differently at the same time. It simply means that both courts are competent to grant the relief in their respective jurisdictions. And as per the provisions of Order 41 rule 4(1) Civil Procedure Rules, if the superior Court is the one seized of the matter, it can grant the stay of execution pending hearing and determination of the appeal. However, where the superior court declines to grant the same or gives unfavourable terms, the aggrieved party can move to the Court of Appeal and seek the same relief.17.In the present case, Intex ought to have waited for this Court’s decision on its application before moving to the Court of Appeal seeking the same relief. Order 42 Rule 6 is clear on the procedure to follow when seeking a stay in the Court appealed from and the Court Appealed to. There is no provision for simultaneous applications.18.Parties must not in their pursuit of justice subvert the hierarchy of our Courts that is set out in Chapter Ten of the Constitution of Kenya, 2010. A party seeking justice must do so within the set down legal parameters. Such party may only approach one Court at a time and then move on to the Court in the next level. In Michael Mungai v Housing Finance Co. (K) Ltd & 5 other [2017] eKLR the Supreme Court had this to say on the hierarchy of the Courts:Justice has to be sought within the justice system, which has rules and regulations that govern how one pursues his cause of action. It is not enough for a person to plead pursuit of justice and approach a court of law. Before one approaches a court in pursuit of justice, he or she must be cognizant that he has a justiciable cause of action. Even with such a cause of action, one has to follow the legal regime that informs him as to which court to approach, and in which manner: hence the rules of procedure in our statute books.19.To file similar applications in 2 Courts and of different hierarchical levels, as Intex has done, is an abuse of the Court process. It is vexatious to the Bank and is also an abuse of the judicial process. In Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] eKLR, the Court of Appeal had this to say on abuse of the Court process:Again the Court of Appeal in Abuja, Nigeria in the case of ATTAHIRO v BAGUDO 1998 3 NWLL pt 545 page 656, stated that the term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it.20.Respect of the hierarchy of our judicial system is not only required of litigants but of Courts as well. Accordingly, this Court cannot purport to consider and determine a matter that is pending before the Court of Appeal.” 80.The Court in Patrick Macharia Nderitu v Director of Public Prosecutions & 2 others; Dovey Pharma Limited (Interested Party) [2020] KEHC 9251 (KLR) observed as follows:“41.It’s settled law that a litigant has no right to pursue pari passu two processes which will have the same effect in two courts at the same time with a view to obtaining victory in one of the processes or in both. In several decisions of this court, I have stated that litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks. In my humble view, the two processes are, in law, not available simultaneously, consecutively or concurrently. The pursuit of the two processes concurrently or simultaneously constitutes and amounts to abuse of court/legal process." 81.This court agrees that the High Court and the Court of Appeal may issue stay or conservatory orders whenever their respective jurisdictions are properly invoked. Having said so, the jurisdiction cannot be exercised simultaneously (See Githara Chuchu & 473 Others (supra). 82.Is the Court of Appeal seized of the same matter as the High Court presently? The petitioners deny that it is the case. In its reckoning, the 5(2) (b) application is the substantive application, while the instant application is for temporary relief as the Court of Appeal considers that application. 83.That may be so. But it would appear to me that the Petitioner was at the fork of the road on 9th April 2026 when the impugned decision was delivered by my brother Judge; it could either seek a stay or conservatory orders/injunction pending appeal in this court, or alternatively at the Court of Appeal. The petition opted for the latter option. My view is that the choice it made was definitive and binding on it, and that it cannot resile from its consequences. 84.In my view, what the High Court is being invited to do is to superintend the Court of Appeal and to ensure that the processes of the appellate Court meet the ends of justice. I am not convinced that I have the jurisdiction to do so. Having opted to seek its luck at the Court of Appeal, the petitioner may not now return to the High Court. 85.Such a cause would not, in my view, be respectful of the hierarchy of courts and may embarrass our judicial system. I agree with the observation made by Mugure Thande, J. in the African Banking Corporate Ltd case (supra) that:-“Respect of the hierarchy of our judicial system is not only required of litigants but of courts as well. Accordingly, this court cannot purport to consider and determine a matter that is pending before the Court of Appeal.” 86.It has been urged that this Court has inherent powers to issue orders in the interest of justice. I agree that it does. My view, however, is that inherent powers may not be used in a way that is unjust or disrespectful of our hierarchy of courts. 87.The foregoing finding is determinative of the application before me. That said, I will also consider if the application is res judicata or if the court is functus officio. Whether the Court is functus officio 88.Functus officio doctrine is defined in Black's Law Dictionary, 10th Edition, as“having performed his or her office (of an officer or official body) without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.” 89.The Supreme Court speaking to this doctrine gave the following guidance in Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR):“(18)…We, therefore, have to consider the concept of “functus officio,” as understood in law. Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” (2005) 122 SALJ 832, has thus explicated this concept:“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”(19)This principle has been aptly summarized further in Jersey Evening Post Limited v. A1 Thani [2002] JLR 542 at 550:“A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.” 90.Functus officio doctrine, like all general principles of law, has exceptions. The exceptions include correction of errors under the slip rule, supervision in matters where structural interdicts have been issued and applications for review or stay of execution. 91.I have considered the application carefully. The application before me is different from that which my brother Judge considered; what is being sought are preservatory orders to conserve the substratum of the appeal pending the hearing of the Rule 5 (2) (b) application by the Court of Appeal. My view is therefore that this Court is not functus officio; as already stated, what is sought is temporary and preservatory, on the basis that conservatory orders shall be considered by the Court of Appeal. Is the matter res judicata? 92.In the case of John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), the Supreme Court held as follows regarding the doctrine of res judicata:“The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.” 93.The application before me does not amount to the Petitioner seeking a second bite of the cherry. As stated earlier, it seeks to preserve, in a manner of speaking, the cherry. In my view, therefore, the application is not res judicata. Whether the application has merits 94.Having already found that the application before the Court cannot properly be made while the Court of Appeal is seized of the matter, the finding that the matter is not res judicata and that the Court is not functus officio does not help the Petitioner. The application is for dismissal. Even if I were wrong in the foregoing analysis, I am not persuaded that conservatory orders ought to issue. In his ruling, the learned Judge considered the issue of nexus and where the public interest lay. He observed that the 1st and 3rd Respondents would remain domiciled in Kenya and that the subject matter of the Petition was not likely to be rendered nugatory. 95.In any case, what Mwamuye, J, did was to dismiss an application for conservatory orders. He issued no positive orders that could be stayed; in a sense, he issued negative orders. There is a long line of decisions by the High Court and the Court of Appeal holding that negative orders cannot be stayed. My view is that the prayer for suspension of the ruling of Mwamuye, J, is an elegant way of praying for a stay. Final Orders 96.The upshot of the foregoing is that the application dated 4th May 2026 is without merit. The same is hereby dismissed with costs to the Respondents. 97.It is so ordered. DATED AND DELIVERED IN NAIROBI, THIS 2ND DAY OF JUNE 2026.GREGORY MUTAIJUDGEIn the presence of:Mr Kent Omondi, holding brief for Dr Kenneth Kiplagat, for the Petitioner;Mr Kiragu Kimani SC, for the PetitionerMr Kamau Karori SC, and Ms Odari, for the 1st and 3rd Respondents;Mr Alphonce Oduor, holding brief for Mr George Oraro SC, for the 2nd Respondent;Mr Njoroge Regeru SC, Mr Thuo, Ms Mathangani and Mr Mutinda for the 4th Respondent;Ms Ahomo, holding brief Prof Githu Muigai SC, and Mr Mansur Issa, for the Interested Party;Mr Miller, for the alleged Contemnors;Ms Lwambia – Court Assistant.