Irungu v Diageo Kenya Ltd & 7 others (Constitutional Petition E025 of 2026) [2026] KEHC 13192 (KLR) (Commercial and Tax) (31 August 2026) (Ruling)

Irungu v Diageo Kenya Ltd & 7 others (Constitutional Petition E025 of 2026) [2026] KEHC 13192 (KLR) (Commercial and Tax) (31 August 2026) (Ruling) Neutral citation: [2026] KEHC 13192 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Constitutional Petition E025 of 2026 F Gikonyo, J August 31, 2026 (FORMERLY MACHAKOS PETITION E019 OF 2026) Between Christine Irungu Petitioner and Diageo Kenya Limited 1st Respondent Diageo Plc 2nd Respondent East African Breweries Limited 3rd Respondent Asahi Group Holdings Ltd 4th Respondent Capital Markets Authority 5th Respondent Competition Authority Of Kenya 6th Respondent and Law Society Of Kenya 1st Interested Party Bia Tosha Distributors Limited 2nd Interested Party Ruling 1.I have two applications before me for consideration. One is by the petitioner and the other by the 1st and 2nd respondents, Diageo Kenya Limited and Diageo PLC respectively. 2.Also, before me is a preliminary objection by the 6th defendant, Competition Authority of Kenya (CAK). Background 3.The petitioner commenced these proceedings before the Machakos High Court, through a petition dated 18.6.2026 challenging the constitutionality of the sale of Diageo’s controlling interest in the 3rd respondent, East Africa Breweries PLC (EABL) to the 4th respondent, Asahi Group Holdings Limited (Asahi Group) on various grounds. 4.The petitioner alleges that the impugned transaction violates articles 10, 35, 40, 46, 47, 48, 50, 73 and 75. 5.In particular, the petitioner argues that the respondents failed to disclose all material information relating to the tender offer, the alleged pre-existing or contemplated onward sale, share premium, the effect on minority shareholders, and the regulatory safeguards imposed. 6.The petitioner also cited regulatory failure by the Capital Markets Authority (CMA) and the Competition Authority of Kenya, CAK (the 5th and 6th respondents respectively). Particularly, that the CMA failed to protect minority shareholders from the possibility of a controlling shareholder using the tender offer to create an enlarged control premium for itself. Further, that the CAK failed to properly consider the competition implications of the transaction and its impact on the consumers, distributors, market players, competition in the beverage sector and the public interest. 7.Ex-parte conservatory orders were issued by Hon. Mong’are J. on 18.6.2026. 8.This prompted Diageo Kenya and Diageo PLC to file a notice of motion dated 30.6.2026, seeking the setting aside and discharge of the ex-parte conservatory orders and transfer of the petition to Constitutional and Human Rights Division for placement before Hon. Gregory Mutai J. 9.By a letter dated 30.6.2026, the Principal Judge, Hon. Ogola J. noted that multiple cases relating to the proposed acquisition of Diageo Kenya and UDV Limited by Asahi Group Holdings Ltd had been filed across various Divisions and stations. He therefore directed that all pending files and subsequent cases relating to the transaction be transmitted to the Presiding Judge and heard by a judge based at the Commercial and Tax Division. This was pursuant to section 6 (1) and (2) of the High Court (Organization and Administration) Act. 10.Pursuant thereto, the files were placed before this court on 23.7.2026 and this court extended the interim orders reasoning that the transaction formed the substratum of the petition and its preservation was imperative in law and in the dispensation of justice. Petitioner’s application 11.Through a notice of motion dated 18.6.2026, the petitioner seeks various conservatory orders and/ or injunctive reliefs pending the hearing and determination of her petition. The application is brought primarily under Articles 22, 23, 35, 40, 46, 47, 48, 50, 165 and 258 of the Constitution of Kenya. 12.The petitioner urges the court to issue orders to: -1.restrain the 1st, 2nd, 3rd and 4th respondents or their agents from selling and/ or transferring of Diageo’s controlling interest in East African Breweries PLC (EABL) to Asahi Group Holdings Limited (Asahi Group).2.preserve the ownership, control and shareholding status quo in EABL as regards the 1st and 2nd respondents’ controlling interest therein.3.restrain the 5th and 6th respondents from approving, sanctioning, registering, clearing or otherwise facilitating completion of the impugned transaction until full disclosure and lawful regulatory review has been undertaken.4.compel the 1st, 2nd, 3rd and 4th respondents to disclose and file before this court all agreements, sale documents, term sheets, board approvals, regulatory filings, correspondence, valuation reports and any other documents relating to the intended sale and transfer of Diageo’s controlling interest in EABL to Asahi Group.5.compel the 5th respondent to file before this court a report setting out the regulatory steps taken in respect of the impugned transaction and the safeguards, if any, imposed to protect minority shareholders, investors and the public interest.6.compel the 6th respondent to file before this court a report setting out the competition and public interest review undertaken in respect of the impugned transaction. 13.The application is premised on the grounds set out in the application as well as the supporting and further affidavits sworn by the petitioner, Christine Irungu on 18.6.2026 and 7.7.2026. 14.The key grounds are that: -1.Diageo previously increased its shareholding in EABL from approximately 50.03% to approximately 65% through a tender offer, represented as an investment or strengthening of partnership.2.Thereafter, Diageo agreed to sell its controlling stake in EABL to Asahi Group.3.The intended sale to Asahi Group raises serious questions whether the earlier acquisition of additional shares was a pre-sale enhancement of Diageo’s controlling stake.4.Unless the conservatory orders sought are issued, the impugned transaction may be completed thereby rendering the petition nugatory.5.The petition raises arguable constitutional issues with a likelihood of success.6.The public interest favours preservation of the subject matter pending hearing and determination of the petition. Responses 15.The respondents advanced substantially common grounds of opposition, with some distinctiveness according to their respective positions. 16.Diageo Kenya and Diageo PLC filed a replying affidavit sworn by Diageo PLC’s legal counsel (mergers and acquisitions), Jessica Carrie Thompson on 28.7.2026. 17.Diageo Kenya and Diageo PLC filed a notice of motion dated 30.6.2026 seeking the setting aside and discharge of the ex parte conservatory orders issued on 18.6.2026 restraining the completion of the sale and transfer of the Diageo PLC’s indirect controlling interest in EABL to Asahi and preserving their ownership, control and shareholding status quo in EABL. 18.The application is anchored on, among others, articles 25 (c), 159 and 165(3) (b) of the Constitution. It is premised on the grounds on its body and the supporting affidavit sworn by Diageo PLC’s general counsel, Anthony David William Smith on 30.6.2026. 19.Their main contentions are as follows: -1.Of Jurisdiction: That the court lacks jurisdiction to grant the orders sought as the questions raised fall within the statutory and commercial framework governing share transfers, takeovers, mergers, competition review and capital markets regulation.2.Doctrine of avoidance: That the orders sought offend the doctrine of constitutional avoidance by inviting the court to assume supervisory role over matters falling within the mandates of the specialized regulators.3.Sub judice: That the petition and the application offend the sub judice rule provided in section 6 of the Civil Procedure Rules as the issues of investor protection, regulatory accountability, propriety of the exemption from the requirement to make a mandatory take over offer granted in respect of the transaction and its lawfulness are directly and substantially in issue before the Capital Markets Tribunal and the High Court in Capital Markets Tribunal Appeal No. E001 of 2026, HCCC Misc Appl. E613 of 2026, HCCHR Petitions 249 of 2016 and E296 of 2025.4.Material non-disclosure: The petitioner failed to disclose the particulars of the previous proceedings allegedly instituted concerning aspects of the transaction. It indicated that in HCCHR Petitions 249 of 2016 and E296 of 2025 the court considered and declined to grant conservatory orders that would have interfered with the transaction. That in HCCOMM Misc Appl E613 of 2026, the court declined to extend and discharged interim orders previously issued in connection with the transaction. In HCCHR Petition E313 of 2026, the court directed that the matter be placed before Hon. Gregory Mutai who was handling the other two petitions, because the matter raised substantially similar issues arising from the transaction.5.The petitioner has made false and misleading statements about historical transactions concerning Diageo Group’s shareholding in EABL including the 1997 rights issue, the 2000 scrip dividend and Diageo PLC’s 2022-2023 tender offer to shareholders EABL (the Tender Offer). It denied that the tender offer was irregular or part of a preconceived scheme to sell an enlarged controlling stake to a third party. It contended that the petitioner has filed the petition with inordinate delay as the subject tender offer was in 2022-2023.6.The petitioner has failed to satisfy the threshold for conservatory orders or injunctive relief as prejudice is speculative and no irreparable harm has been shown.7.The balance of convenience favours allowing the transaction to proceed as opposed to undermining Kenya’s viability as a destination for international investment.8.The application seeks conservatory orders that are final orders and the orders bear no nexus to the complaints raised in the petition.9.The orders seeking disclosure of confidential transaction documents are premature, overly broad, amount to a fishing expedition and no entitlement or necessity has been established.10.Locus standi: There is no dispute capable of adjudication as the petitioner lacks locus standi and has not demonstrated any prejudice to herself or the public.11.The applicant has not offered any undertaking as to damages despite seeking to halt a transaction of monumental value. 20.EABL filed a replying affidavit sworn by its group legal director, Nadida Rowlands on 1.7.2026. It mostly reiterated the grounds of opposition raised by the 1st and 2nd respondents. 21.Asahi Group filed grounds of opposition dated 1.7.2026. It took the similar position that the court has no jurisdiction to entertain these proceedings. It further contended that the challenges raised by the petitioner ought to be pursued before the Capital Markets Tribunal and the Competition Tribunal. It added that assuming this court has jurisdiction, as a matter of discretion, it should decline to exercise that jurisdiction. 22.Asahi Group again contended that the application and the petition are frivolous, vexatious and an abuse of the process of the court, and they should be struck out and/ or be dismissed with costs. 23.The Competition Authority of Kenya (CAK) filed a preliminary objection (PO) dated 1.7.2026. It reiterated the assertion that the court lacks jurisdiction and that the petition offends the doctrine of exhaustion, further advancing that there is an elaborate review mechanism for a review of its decision regarding a merger under section 46 of the Competition Act. 24.CAK went on to argue that section 9(2) of the Fair Administrative Action Act expressly divests the High Court jurisdiction from reviewing administrative action or decisions unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. 25.CAK urged the court to dismiss the Petitioners’ Notice of Motion and Petition with costs for being frivolous, vexatious and an abuse of the court process. Submissions 26.The applications were canvassed through written submissions with oral highlights on 30.7.2026. 27.The petitioner filed primary and further written submissions dated 7.7.2026 and 29.7.2026. 28.Diageo Kenya and Diageo PLC filed written submissions dated 15.7.2026 and 28.7.2026. 29.EABL filed written submissions dated 28.7.2026. 30.Asahi Group filed written submissions dated 28.7.2026. Petitioner’s submissions 31.Mr. Ayieko for the petitioner urged the court to dismiss the 6th respondent's PO, decline their request to vacate conservatory orders and grant the conservatory orders. He argued that the PO raises factual and contested issues requiring probing of evidence. He asserted that the PO refers to the wrong petition and pleadings. 32.Mr. Ayieko faulted the objector for invoking the doctrine of exhaustion in guise of jurisdiction. He asserted that jurisdiction is properly invoked under Articles 22, 23, 165 (3) (b) and (d) and 258 of the Constitution. He submitted that the matter is not a simple regulatory issue as the petition challenges the sale of shares, rights and guarantees. He added that the petition is composite as it also seeks regulatory accountability. 33.Mr. Ayieko contended that in the instant case, specialized tribunals cannot give adequate relief, only this court can issue the complete and effective remedy. He further asserted that no statutory route can achieve that and that the doctrine of exhaustion does not defeat the petition. 34.Mr. Ayieko submitted that there is no decision by the CAK which is still evaluating whether to okay the transaction, so there is no decision yet to be challenged by the tribunal. He submitted that the CAK has not made any decision in respect of the transaction, the same being still under evaluation. Accordingly, there is no decision by the Authority capable of being challenged before the Tribunal under section 48 of the Competition Act. He also argued that the petitioner cannot invoke the review process under section 48 since she is not a party to that decision. 35.Mr. Ayieko asserted that the petitioner has locus under article 258 of the Constitution by virtue of the public interest nature of the matter. He further asserted that petition satisfies the precision threshold set in the Anarita Karimi case as the petitioner identified the share increase, non-disclosure, constitutional provisions and remedies sought per the pleadings. 36.Mr. Ayieko submitted that the petitioner has an arguable prima facie case for the grant of injunctive relief as she has shown that the transaction was offensive as Diageo increased controlling interest. He indicated that the petitioner could not produce the documents when she is seeking access to information. He also submitted that Bia Tosha Distributors Ltd v Kenya Breweries Ltd & Another, Petition No. 249 of 2016 (Bia Tosha case) does not establish immunity to the transaction. 37.Mr. Ayieko argued that completion will render the petition nugatory. He also argued that the amount involved should not be a basis for ruling out public interest as commercial size cannot produce immunity. He submitted that proportionality should reign. That the petitioner is not prohibiting commerce or regulatory functions and that the transaction cannot be shielded from constitutional scrutiny. 38.The petitioner relied on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, on the threshold of a PO and on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 on jurisdiction. 39.The petitioner also relied on Speaker of the National Assembly v James Njenga Karume [1992] eKLR, Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR to assert that the doctrine of exhaustion does not bar the petition. 40.Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, to assert that the petition satisfies the principle that constitutional claims should be pleaded with reasonable precision. 41.The petitioner claimed that she has met the threshold for the conservatory orders, and in support thereof cited Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Application No. 5 of 2014; [2014] eKLR and Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 at page 137 Respondents’ submissions 42.On behalf of Diageo Kenya and Diageo PLC, Mr. Regeru, SC rehashed the 11 points of opposition underscored above. 43.Diageo Kenya and Diageo PLC relied on Ndung'u & another v Wachira & another [2025] KEHC 7265 (KLR) and Godfrey Paul Okutoyi & others v Habil Olaka & Another [2018] eKLR on the doctrine of avoidance. They also relied on multiple authorities on jurisdiction, about conservatory orders, what they entail and when they ought to be granted. They further relied on Bia Tosha Distributors Ltd v Kenya Breweries Ltd & Another [supra] where the court declined to interfere with the impugned ongoing commercial transaction involving the parties hereto, holding that stopping such a transaction at an interlocutory stage could negatively affect market confidence and investor interests. 44.Mr. Amoko for Asahi Group submitted that the petition offends the doctrine of separation of powers as it seeks the court’s intervention across the CMA’s sphere. He contended that the CMA is a self-regulatory space as established by Parliament and must observe data protection laws and promote investor confidence. He also contended that the Capital Markets Act provides for all issues that may arise including minority protection. 45.Mr. Amoko relied on the Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others [2021] KESC 34 (KLR) to assert that violation must be demonstrated before interim relief is granted. He submitted that judicial overreach is prohibited. He mentioned that the reliefs sought do not attribute any wrongdoing to his client yet it is being affected. 46.Asahi Group relied on various authorities on the doctrine of exhaustion including those earlier mentioned and Orie Rogo Manduli v Catherine Mukite Nobwola & 3 Others [2013] KEHC 966 (KLR), Obare & Another v Clerk, County Assembly of Siaya & Another [2020] KEHC 4999 and Ramogi & 3 Others v Attorney General & 4 Others [2020] KEHC 10266 (KLR). 47.On the doctrine of exhaustion, Asahi Group relied on Fleur Investments Limited v Commissioner of Domestic Taxes & Another [2018] eKLR and Kenya National Commission on Human Rights v Attorney General & 4 Others [2020] KESC 54 (KLR). It also cited numerous authorities about conservatory orders. 48.Mr. Karori for EABL highlighted that under section 71 of the Capital Markets Act, any person can lodge a complaint with the CMA, but none was raised by the petitioner. He also urged the court to award costs because the petitioner has not produced evidence. He pointed out that in the CMA’s report, exhibited by the petitioner, the CMA indicated that disclosures were made, explained how it gave approval, non-disclosure is provided for and sanctions have been supplied, the CMA concluded that there was no breach of procurement or rights and that the intention was to help innovation and economic gain to the people. 49.EABL relied on Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR on jurisdiction. It also relied on United Millers Limited v Kenya Bureau of Standards & 5 Others [2021] eKLR and Capital Markets Authority v Ciano & Another [2023] KECA 581 (KLR) on exhaustion of remedies. 50.EABL further relied on Communications Commission of Kenya v Royal Media Services Ltd [2014] KESC 53 (KLR) on constitutional avoidance. 51.Mr. Mwangi for the CAK concurred with the submissions of the other respondents. 52.Mr. Githendu for the CMA confirmed that they did not file any response. He, however, indicated that the CMA opposed the application. 53.In reply, Mr. Ayieko asserted that the court has original jurisdiction. He urged the court to take judicial notice that the Capital Markets Tribunal is not properly constituted. He contended that they cannot rely on mechanisms that have not been constituted. 54.Mr. Ayieko submitted that the constitution separates public standing from financial loss. He argued that we cannot subordinate the Constitution to economic interests. 55.Mr. Oyoo holding brief for Mr. Nderitu for the 1st Interested party withdrew their written submissions, indicating that they would not participate in the matter. Analysis and Determination Preliminary Objection (PO) 56.A preliminary objection ought to be on a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Oraro v Mbaja [2005] KEHC 3182 (KLR) 57.CAK’s PO challenges the court’s jurisdiction to hear and determine the petition as it offends the doctrine of exhaustion. According to CAK, the issues raised are subject to the elaborate review mechanism under section 46 of the Competition Act. CAK contended that section 9(2) of tie Fair Administrative Action Act restrains the court from reviewing administrative decisions unless internal mechanisms for appeal or review have been exhausted. 58.“Jurisdiction...is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. ... Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing.” Public Service Commission & 4 others v Cheruiyot & 20 others (Civil Appeal 119 & 139 of 2017 (consolidated)) [2022] KECA 15 (KLR) 59.“A court’s jurisdiction flows from the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) 60.The jurisdiction of the High Court flows from Article 165 (3) of the Constitution. It provides that subject to clause (5), the High Court shall have unlimited original jurisdiction in criminal and civil matters. 61.The parameters of the court’s jurisdiction under Article 165 (3) were broadly captured by the court in Gakenyis & 4 others v Cabinet Secretary Lands & 4 others [2024] KEHC 4573 (KLR) at paragraphs 47 and 48. 62.Although the basis of the petition is a commercial transaction (share acquisition/ takeover), there are allegations of violation of the Constitution, rights and guarantees as well as regulatory failure on the part of 5th and 6th respondents. Therefore, the question of whether the court has jurisdiction must be approached with reference to the scope of jurisdiction conferred by article 165 (3) (d) (ii). 63.It provides that the High Court has jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of the question of whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution. 64.The respondents’ challenge to this court’s jurisdiction is premised on the doctrines of exhaustion of remedies and constitutional avoidance. 65.The doctrine of avoidance entails deferring to pathways for resolving a matter on another or other basis rather than as a constitutional issue. S v. Mhlungu, 1995 (3) SA 867 (CC) 66.Put differently, a court will not determine a constitutional issue, when a matter may properly be decided on another basis. Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR). 67.Exceptions to the doctrines include where the suit raises pure questions of constitutional interpretation, structural unconstitutionality of executive actions, where statutory bodies lack the jurisdiction to grant the constitutional remedies sought or where a matter involved grievances from parties who lack adequate audience before a forum created by a statute. Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 3087 (KLR) 68.The doctrine of exhaustion of remedies requires that a party exhausts alternative dispute resolution mechanisms before approaching the Court. Geoffrey Muthinja Kabiru & 2 Other v Samuel Munga Henry & 1756 Others [2015] eKLR 69.Section 9 of the Fair Administrative Actions Act provides that: -“9.Procedure for judicial review(1)Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.(2)The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.” 70.But, section 9(4) of the Fair Administrative Action Act recognizes exception to the doctrine of exhaustion of remedies. 71.In determining whether the petition is barred by the doctrines, the court “…must undertake an extensive analysis of the facts, the regulatory scheme involved, the nature of the interests involved- including the level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies…” Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 3087 (KLR) Constitutional questions 72.The petitioner submitted that the petition raises constitutional questions of whether there was material non disclosure of the intention to sell Diageo’s controlling stake at the time of the increase of shareholding; whether a controlling shareholder in a listed public company can acquire additional shares from minority shareholders under one market narrative and thereafter use the enlarged stake to obtain a special private premium and unavailable to them and whether the CMA and the CAK have discharged their constitutional and statutory obligations in line with the law and the Constitution. 73.The petitioner contended that the transaction violates articles 10, 35, 40, 46, 47, 48, 50, 73 and 75 and that the respondents failed to disclose all material information relating to the tender offer, the alleged pre-existing or contemplated onward sale, share premium, the effect on minority shareholders, and the regulatory safeguards imposed. 74.The petitioner also alleged that the CMA failed to protect minority shareholders from the possibility of a controlling shareholder using the tender offer to create an enlarged control premium for itself and the CAK failed to properly consider the competition implications of the transaction and its impact on the consumers, distributors, market players, competition in the beverage sector and the public interest. 75.The respondents contended that the petitioner’s complaints fall within the statutory mandates of specialized regulatory bodies and the relevant appellate tribunals established under the applicable legal framework. They submitted that any person aggrieved by the CMA’s decision, action or omission is required to pursue the statutory review and appeal mechanism established under the Capital Markets Act. 76.They further contended that the CMA is mandated to supervise and regulate takeovers, mergers and acquisitions involving listed companies, ensure disclosure of material information, protect investors and maintain fair and transparent markets. 77.The respondents submitted that CAK is empowered under sections 43 – 46 of the Competition Act to review proposed mergers, assess their effect on competition and public interest, and issue appropriate determinations. It was also asserted that where a party is dissatisfied with a merger determination made by the CAK, the Act provides a specific statutory remedy before the Tribunal followed by an appeal before the Tribunal. 78.The respondents argued that the petitioner’s complaints do not present exceptional constitutional questions requiring the court’s intervention. They submitted that matters relating to alleged oppression of minority shareholders, unfair treatment of shareholders and corporate governance are ordinarily addressed within the corporate law framework under the Companies Act. 79.The petitioner argued that the jurisdiction is properly invoked and that the doctrine of exhaustion does not defeat the petition. She asserted that specialized tribunals cannot give adequate relief in this matter, only this court can issue the complete and effective remedy. She also submitted that since the transaction is under evaluation by CAK, there is no decision capable of being challenged before the Tribunal. 80.Section 46 of the Competition Act provides that the CAK may make a determination in relation to a proposed merger. Section 48 (3) of the Act states that upon receipt of a decision made by the CAK, a party may apply to the Tribunal for review of the Authority’s decision. 81.The Capital Markets Act established the CMA for purposes of promoting, regulating and facilitating the development of an orderly, fair and efficient capital market in Kenya. 82.Section 35A establishes the Capital Markets Tribunal. Subsection (4) provides that “the Tribunal shall, upon an appeal made to it in writing by any party or a reference made to it by the Authority or by any committee or officer of the Authority, on any matter relating to this Act, inquire into the matter and make an award thereon…” 83.Diageo Kenya and Diageo PLC exhibited a memorandum of appeal filed by EABL’s minority shareholders before the Capital Markets Tribunal challenging the CMA’s decision to exempt Asahi Group from issuing a mandatory takeover offer to EABL’s minority shareholders. 84.It was not disputed that the CAK is evaluating the transaction and is yet to publish its decision which may be challenged before the Competition Tribunal. 85.But it bears repeating that, according to the petitioner, the petition raises constitutional questions to wit;i)whether there was material non disclosure of the intention to sell Diageo’s controlling stake at the time of the increase of shareholding;ii)whether a controlling shareholder in a listed public company can acquire additional shares from minority shareholders under one market narrative and thereafter use the enlarged stake to obtain a special private premium and unavailable to them; andiii)whether the CMA and the CAK have discharged their constitutional and statutory obligations in line with the constitution. 86.The specific submissions made by the petitioner include; that the transaction violates articles 10, 35, 40, 46, 47, 48, 50, 73 and 75 and that the respondents failed to disclose all material information relating to the tender offer, the alleged pre-existing or contemplated onward sale, share premium, the effect on minority shareholders, and the regulatory safeguards imposed. 87.The petitioner also alleged that the CMA failed to protect minority shareholders from the possibility of a controlling shareholder using the tender offer to create an enlarged control premium for itself and the CAK failed to properly consider the competition implications of the transaction and its impact on the consumers, distributors, market players, competition in the beverage sector and the public interest. 88.In reply, Mr. Ayieko asserted that the court has original jurisdiction. He urged the court to take judicial notice that the Capital Markets Tribunal is not properly constituted. He contended that they cannot rely on mechanisms that have not been constituted. 89.The common exception to the doctrine of exhaustion of remedies is where the mechanism is not available or adequate or the remedy sought is not available or adequate within the mechanism provided. 90.From the pleadings and arguments presented in court, the petition is not a trifle. It raises constitutional issues including violation of specified constitutional provisions, rights and guarantees as well as exercise of mandates by statutory authorities concerned. 91.In addition, some of the injunctive or conservatory orders sought in the application by the petitioners are akin to restraining orders of prejudicial or oppressive acts or conduct of the company or the majority shareholders. The respondents admit and submitted that redress for oppression or prejudicial conduct against the minority shareholders are dealt with under the Companies Act. Such orders can only be made by the court. For instance, section 33C of the CMA recognizes that position of the law. Similarly, the conservatory or injunctive relief sought herein may not be readily available within the alternative dispute resolution mechanism in question. 92.Nevertheless, I do note that majority of the complaints in the petition are before the statutory authorities or dispute resolution mechanisms provided under the various legislations governing the subject matter of the petition. Bringing me to the point where two things become necessary and significant considerations in these proceedings. The multifaced nature of the statutory interventions required and whether there is need to preserve the status quo. Of locus standi and impediment of commerce 93.Before I determine the two matters identified above, I wish to address the issue raised by the respondents that by coming to court, the petitioner is engaged in acts of impeding commerce and investment. The petitioner’s locus standi was also challenged. 94.Locus standi refers to the right or capacity of a person to bring legal action or to appear in court. It is essentially premised on having a sufficient or legitimate interest in a matter to be heard by the court. Locus standi is also considered to be the empowerment tool for parties to access justice; and obtain remedy and protection of rights. Which explains why in many jurisdictions, rules on locus standi have been relaxed and the right and legal capacity space widened to enhance access to justice as a way of sustainable development1. The Constitution of Kenya, 2010 and SDG161Constitution of Kenya and SDG16 95.Legal standing to sue has been greatly enlarged by the Constitution. Article 48 guarantees every person the right of access to justice. Article 50(1) entitles every person to a fair and public hearing before an independent and impartial court or tribunal. Further, Article 22(1) allows any person, including a juristic person, to institute proceedings where a right or fundamental freedom in the Bill of Rights is threatened with violation or violated. Under Article 258: (1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.’(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—(a)a person acting on behalf of another person who cannot act in their own name;(b)a person acting as a member of, or in the interest of, a group or class of persons;(c)a person acting in the public interest; or(d)an association acting in the interest of one or more of its members. 96.Thus, locus standi is a fundamental principle of law premised on; a) the right to be heard2 and access to justice3; and b) having a sufficient or legitimate interest in a matter to be heard by the court. Law Society of Kenya v Commissioner of Lands & Others, Nakuru HCCC No. 464 of 2000, and, Alfred Njau & Others v City Council of Nairobi4.2Article 50 of the Constitution of Kenya, 20103Article 48 of the Constitution of Kenya, 20104[1982] KAR 229 97.Locus standi should therefore be assessed in the broader constitutional context of access to justice, and not narrowly confined to the parties in a transaction. 98.The Petitioner is not therefore required to demonstrate any personal financial loss or share ownership in order to seek constitutional remedies, market integrity or investor protection. 99.I have stated that access to justice is now at the core of sustainable development (SDG16). Therefore, a legitimate quest for remedy in the judicial space is not impeding commerce or investment. Genuine investors go to a destination where right to access to justice, to be heard, equality before the law, equal protection and benefit of the law, amongst others, is guaranteed. Article 27 of the Constitution. 100.These presents form the functional foundation for determination of the objections on locus standi and impeding of commerce and investment. The petitioner has locus standi to file this petition. The petition raises constitutional issues. Thus, not idle attempt to impede commerce or investment. The matter is multifaceted. 101.The petitioner challenges the regulatory oversight by the CMA and the CA over the takeover of Diageo Kenya and UDV Ltd by Asahi Group, for which the CMA granted the exemption from issuing a mandatory takeover offer. She further raises the question whether Diageo Kenya and Diageo PLC intended to sell all its shares in EABL when it issued the tender offer of 2022-2023 which resulted in the increase of shares owned by Diageo Kenya and Diageo PLC from about 50% to 65% and the implication thereof to the subsequent transaction and exemption issued to the public interest. 102.The petitioner alleges regulatory failure by both the Capital Markets Authority (CMA) and the Competition Authority of Kenya (CAK). Their mandates are distinctive. Any appeals from the Capital Markets Authority ought to be addressed by the Capital Market Tribunal (CMT) while any appeals from the Competition Authority by the Competition Tribunal (CT). None of the Tribunals or dispute mechanisms provided in statute can solely handle the multifaceted issues as their functions are distinctly cut out in the constituting legislation yet inextricably bound to the transaction in question. The CMT is not currently constituted. 103.The petitioner argued that the Tribunal in Capital Markets Act is not properly constituted. 104.The court notes that the Judicial Service Commission (JSC) advertised the position for Chairperson of the CMT in July 2026, following the ascension of the former chair, Mr. Paul Lilan, SC, JA to the office of Judge of the Court of Appeal. 105.The petitioner’s claim that the said tribunal is not properly constituted was not rebutted or contrary information thereto provided, hence, this is a significant gap. 106.Further, the respondents indicated that CAK’s evaluation of the transaction is ongoing. Therefore, at this juncture, it is not legally possible to lodge an appeal to the CT without a determination by the CAK. 107.The petitioner further alleges that the impugned transaction violates articles 10, 35, 40, 46, 47, 48, 50, 73 and 75. I have already found that the Tribunals have no mandate to resolve these constitutional issues. 108.Therefore, in these circumstances, whilst I defer to the dispute resolution mechanisms provided in the relevant statutes, how is the tension between the pursuit of resolution of the dispute in these mechanisms and the preservation of the subject transaction to be resolved? Status quo to be maintained 109.The threshold for conservatory orders was set out by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others, Application No. 5 of 2014; [2014] eKLR, at paragraph 86 as follows:Conservatory orders bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not unlike interlocutory injunctions, linked to such private-party issues as ‘the prospects of irreparable harm’ occurring during the pendency of a case; or ‘high probability of success’ in the applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant causes. 110.It bears repeating that Diageo Kenya and Diageo PLC exhibited a memorandum of appeal dated 29.5.2026 in respect of Capital Markets Tribunal Appeal No. E001 of 2026 filed by EABL’s minority shareholders before the Capital Markets Tribunal challenging the CMA’s decision to exempt Asahi Group from issuing a mandatory takeover offer to EABL’s minority shareholders. 111.An appeal has been filed in the tribunal. The Tribunal may not issue orders against prejudicial or oppressive conduct by the company or majority shareholders. It may not also be able to issue status quo order. Leaving the activity or transaction in question vulnerable to being completed thus, causing rapture or routing of the substratum of the petition before the matter is heard and determined. These are the peculiar circumstances of this case. 112.In these circumstances there is need for ‘orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest.’ 113.The appeal has been lodged under the CMA Act, and the matter is also pending evaluation and determination by the Competition Authority. The matter is multifaceted and being dealt with by multiple statutory institutions and dispute resolution mechanisms-none of which may render a complete adjudication of the issues at hand or preservation of the subject transaction. I do note that the petitioner sought a raft injunctive and disclosure orders including an order of status quo to preserve the transaction. An order of status quo will allow the appeal to be concluded as well as Competition Authority to determine the matters before it so that the petitioner or any party may avail themselves of the dispute resolution mechanism in the Act. A status quo order will also preserve the status of the transaction in a manner that does not prejudice the petition or the remedy in the dispute resolution mechanisms provided for the parties. This is better understood in light of the exemption granted by CMA; the transaction may conclude before the appeal is heard. Therefore, status quo as at 18.6.2026 is necessary until the appeal under the CMA Act is determined and the determination by the Competition Authority under the Competition Act is made. The petitioner has therefore made out a prima facie case for issuance of a status quo order on the transaction until the appeal in the Capital Markets Tribunal as well as the determination by the Competition Authority are made. Peter Munya case threshold met. 114.Accordingly, I issue a status quo order on the transaction obtaining as at 18.6.2026 to be maintained until the appeal in the Capital Markets Tribunal as well as the determination by the Competition Authority are made. The scope and time of the status quo order accordingly defined. 115.I should also be clear that I have only granted the status quo order in the specific terms above. The other prayers form the bulk of the petition and the proceedings before the tribunal and the Competition Authority. Hence, I have avoided full evaluation of them at this stage. With this order, the application by the respondents is spent. 116.I order each party to bear own costs of the applications and the PO. 117.It bears repeating that the order has been issued on the basis of the unique circumstances of this case. 118.Given the circumstances of this case, any party may apply as may be necessary. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 31ST DAY OF AUGUST, 2026.......................F. GIKONYO MJUDGEIn the presence of: -1. Kitinya for the petitioner2. Kamau Karoli SC/Ms. Odari for 3rd respondent3. Amoko/Obegi for the 4th respondent4. Kyumu for Githendu for 5th respondent5. Waigwa for Nderitu for Interested party6. Thuo/Ms. Mutinda for 2nd respondent7. Nzuki for Mukofu for 6th respondent