https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8680

Jilk Construction Company Ltd & 3 others v Asahi Group Holdings Ltd. & 13 others (Petition E296 of 2026) [2026] KEHC 8680 (KLR) (Constitutional and Human Rights) (17 June 2026) (Ruling) Neutral citation: [2026] KEHC 8680 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E296 of 2026 G Mutai, J June 17, 2026 Between Jilk Construction Company Limited 1st Petitioner Betha Wanjiru Ndirangu 2nd Petitioner Mary Njeri Wanyutu 3rd Petitioner Sammy Maina Kamau 4th Petitioner and Asahi Group Holdings Ltd. 1st Respondent The Cabinet Secretary, National Treasury and Economic Planning 2nd Respondent Hon. Attorney General 3rd Respondent Capital Markets Authority 4th Respondent Competition Authority Of Kenya 5th Respondent Diageo Plc 6th Respondent East African Breweries Plc. 7th Respondent and Kenya Breweries Limited 1st Interested Party Kenya National Commission On Human Rights 2nd Interested Party Federation Of Women Lawyers (Fida-Kenya). 3rd Interested Party Katiba Institute 4th Interested Party Kenya Human Rights Commission 5th Interested Party Law Society Of Kenya 6th Interested Party Mwanzo Mpya Women's Foundation 7th Interested Party Ruling Introduction 1.There are two applications before this Court. The first is the Notice of Motion application dated 8th May 2026, filed by the Petitioners. The second is the application of the 6th Respondent, whose Notice of Motion is dated 13th May 2026. The 5th and the 7th Respondents filed Notices of Preliminary Objection, contesting this Court’s jurisdiction to hear and determine the Petition and to grant conservatory orders. On its part, the 1st Respondent objected to the petition on the ground that it was not properly served and, for that reason, that this Court had not assumed jurisdiction over it. 2.This consolidated ruling concerns all these applications and objections. I will first set out the applications and the objections, and thereafter consider them in turn, beginning with those that raise jurisdictional questions. If this Court finds that it has jurisdiction, it will determine the Petitioners’ application on the merits. Petitioners’ Application 3.Vide their said Notice of Motion Application on 8th May 2026, the petitioners seek the following orders:i.Spent.ii.Pending hearing and determination of this Application/Petition, the Court be pleased to issue a conservatory order restraining the 1st Respondent from taking over the assets and business of the 7th Respondent until the Attorney General has certified that it has satisfactorily conducted human rights diligence pursuant to the United Nations Principles on Business and Human Rights and remedied the grievances of the Petitioners arising from the activities and operations of the 6th and 7th Respondents;iii.Pending the inter partes hearing of this Application/Petition, this Court be pleased to issue a conservatory order restraining the 4th and 5th Respondents, whether by themselves, their officers, agents or servants, from approving, sanctioning, authorizing, processing or in any manner facilitating the intended transfer, sale or disposal of the 6th Respondent's shareholding in the 7th Respondent;iv.Pending the hearing and determination of this Application/Petition, this Court be pleased to issue an order preserving the status quo in respect of the 6th Respondent's ownership, control and shareholding structure of the 7th Respondent;v.Pending the inter partes hearing of this Application/Petition this Court be pleased to issue a conservatory order restraining the 1st, 6th and 7th Respondents, whether by themselves, their agents, officers, servants or any person acting on their behalf, from effecting, implementing, completing, or in any manner proceeding with the intended transfer, sale, disposal or alienation of the 6th Respondent's shareholding in the 7th Respondent (East African Breweries Limited);vi.Pending the hearing and determination of this Petition, an order of mandatory injunction be issued to compel the 2nd Respondent to appoint a chairperson of the Competition Tribunal in accordance with Section 71 of the Competition Act;vii.Pending the appointment of the Chairperson of the Competition Tribunal, the Court be pleased to prohibit the 5th Respondent from approving the transaction for the transfer/sale of shares in the 7th Respondent between the 1st and 6th Respondents;viii.Pending the hearing and determination of this Petition, the Court be pleased to issue an order of mandatory injunction to hear, determine and adjudicate upon the first Petitioner's grievances and complaints against the 6th and 7th Respondents set out in the First Petitioner's letter dated 17th March 2026;ix.Pending hearing and determination of this Petition, the Court be pleased to issue an order of mandatory injunction to compel the 5th Respondent to hear, determine and adjudicate upon the grievances and complaints of the 1st Petitioner set out in its letter dated 12th January, 2026;x.Pending hearing and determination of this Petition an order of mandatory injunction be issued to compel the Hon. Attorney General, the 3rd Respondent herein, to ensure that the 1st and 6th Respondents have conducted a human rights due diligence in accordance with the United Nations' Guiding Principles on Business and Human Rights and to submit a report to this Court within Thirty (30) days of the said order;xi.The costs of this Application be provided for; andxii.Such further or other orders be granted as this Court may deem just and expedient in the circumstances. 4.The Application is based on the supporting affidavit of the 1st Petitioner’s General Manager, Kevin John Njuguna, the grounds on the face of the application, and a further affidavit sworn on 20th May 2026 by its Director, Sammy Maina Kamau. 5.The 1st Petitioner is a construction and civil engineering company which undertakes various projects in Kenya. The 1st Petitioner’s case is that between October 2017 and March 2018, it entered into three construction contracts with the 1st Interested Party for the execution of civil works relating to the development, expansion, construction, and refurbishment of a brewery plant in Kisumu City. The contracts, which were executed under the Joint Building Council Agreement and Conditions of Contract for Building Works, were signed on 31st October 2017, 15th February 2018, and 27th March 2018, respectively. This project was dubbed ‘Project Nafasi’. 6.According to the Petitioners, although the agreements were formally entered into with the 1st Interested Party, the project was implemented, supervised, and coordinated by personnel and representatives associated with the 6th Respondent and its affiliates. 7.The 1st Petitioner avers that it completed and handed over the contracted works in accordance with the contractual specifications and project timelines. However, disputes subsequently arose between it and the 1st Interested Party concerning the certification of completed works, variations to the scope of work and the recovery of certain project-related costs allegedly outstanding under the contracts. The 1st Petitioner contends that efforts at an amicable settlement were made through a demand letter dated 7th January 2020, seeking payment of Kes. 163,393,574/-, which efforts did not yield any response, prompting the commencement of arbitration proceedings pursuant to Clause 45 of the Agreement and Conditions of Contract for Building Works, with an arbitrator being appointed by the Chairman of the Architectural Association of Kenya. 8.During the arbitral proceedings, it is claimed that disputes arose between the 1st Petitioner and 6th Respondent regarding various aspects of the implementation of the project and the conduct of its representatives. In light of this, it lodged a complaint with the 5th Respondent on 12th January 2026, alleging, among other matters, sexual harassment, unconscionable business conduct, and irregularities in the manner in which the project had been undertaken; therefore, it requested that the Authority investigate the conduct of the 6th and 7th Respondents. The 5th Respondent, after conducting a preliminary assessment, informed the 1st Petitioner by a letter dated 18th February 2026 that the issues raised fell outside its statutory mandate under the Competition Act and that no investigation would be undertaken. Aggrieved by that decision, the 1st Petitioner sought reconsideration through a letter dated 18th March 2026 and requested a formal hearing, however contends that no response was received. 9.The 1st Petitioner avers that they were entitled to challenge the 5th Respondent’s decision before the Competition Tribunal. The Tribunal is presently incapable of hearing appeals owing to the absence of a duly appointed Chairperson. They assert that the 2nd Respondent's failure to appoint a Chairperson has rendered the Tribunal non-functional, thereby denying them an effective statutory remedy and a right of appeal. 10.In like fashion, the 1st Petitioner reported the 6th and 7th Respondents’ alleged human rights violations to the 4th Respondent vide a letter dated 17th March 2026, but no action had been taken on their complaints by the time the Petition was filed. 11.The 1st Petitioner stated that it was concerned because the 6th Respondent is in the process of exiting East Africa, having initiated a share transfer of its shareholding in the 7th Respondent to the 1st Respondent. Additionally, it is contended that the conduct of the said Respondents is inconsistent with and in breach of the United Nations Guiding Principles on Business and Human Rights, in that they failed to comply with the applicable principles and obligations thereunder before proceeding with the transfer. 12.The 1st Petitioner is apprehensive that if the transfer is completed before its grievances are addressed, the intended appeal before the Competition Tribunal and this Petition will be rendered nugatory, leaving it without a remedy. Consequently, the Petitioners have moved this Court seeking intervention to protect their constitutional rights. Respondents’ Responses 13.Although they were served the 2nd, 3rd and 4th Respondents did not file formal responses to the Petition. Their counsels, Mr Weche and Mr Minofu, however, took part in the oral hearings and made presentations to this Court. 1st Respondent 14.The 1st Respondent contended in its response, filed under protest, that this Court had not assumed jurisdiction over it as it is a Japanese company that does not conduct business in Kenya. It was urged that the Petitioners ought to have sought leave of the Court before purporting to serve them. Its counsel stated that, without the Petitioners' compliance with the Civil Procedure Rules on service of process on foreign companies, this Court lacked jurisdiction over the 1st Respondent. Thus, it prayed that it be struck out of these proceedings. 5th Respondent 15.In reply to the Application, the 5th Respondent filed a Notice of Preliminary Objection dated 19th May 2026 on the basis that:i.This Court lacks jurisdiction to hear this matter on account of:ii.Offending the doctrine of exhaustion: Section 40 of the Competition Act, Cap 504 has an elaborate appeal mechanism for an undertaking aggrieved by the 5th Respondent’s decision which is to file appeal to the Competition Tribunal within 30 days of receiving the Authority’s decision and a further appeal to the High Court within 30 days of receiving the Competition Tribunal’s decision, which appeal shall be final;iii.The Petitioner’s cause of action against the 5th Respondent is barred by effluxion of time, being based on a grievance against its decision. This is by dint of section 40(1) of the Competition Act, as read with regulations 15(1) and 15(2) of the Competition Tribunal (Procedure) Rules;iv.Section 9(2) of the Fair Administrative Action Act, Cap 7L 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;v.The Petition as filed violates the doctrine of constitutional avoidance;vi.The Petition as filed is bad in law, an abuse of the process of this Court and is barred by the doctrine of issue estoppel;vii.In this regard, this Court is consequently dispossessed of jurisdiction to hear and determine the Notice of Motion application and Petition, both dated 8th May 2026 and to issue the Orders sought; andviii.The Petitioners’ Notice of Motion application and Petition, both dated 8th May 2026, should thus be dismissed with costs for being frivolous, vexatious and an abuse of the court process. 16.The 5th Respondent opposed the motion through a Replying Affidavit sworn on 19th May 2026 by its Manager of the Mergers and Acquisitions Department, Raphael Mburu. The said deponent stated that, pursuant to Part IV of the Competition Act, it is mandated to assess and determine proposed mergers that meet the thresholds set out in the Merger Threshold Guidelines under the First Schedule of the Competition (General) Rules, 2010. It is deposed that, by correspondence dated 12th January 2026, the Petitioners sought its intervention regarding their grievances against the 6th Respondent before the 6th Respondent exited the jurisdiction of the Kenyan courts and regulatory authorities. 17.It was stated that, under Rule 34(3) of the Competition (General) Rules, 2019, a preliminary assessment must be undertaken to determine whether a complaint warrants a full investigation. Upon conducting such an assessment, it found that the Petitioners’ complaint did not disclose any competition concerns falling within its statutory mandate under the Competition Act. These findings were communicated to the 1st Petitioner by a letter dated 18th February 2026. It is further deposed that, by a subsequent letter dated 18th March 2026, the 1st Petitioner accused the 5th Respondent of abdicating its jurisdiction for failing to convene a formal hearing to receive evidence and submissions. 18.Notwithstanding this contention, the 5th Respondent avers that the 1st Petitioner was thereafter invited to submit information relevant to the transaction for consideration in its determination of the proposed merger between the 1st and 6th Respondents. In those circumstances, it is argued that the 1st Petitioner is estopped from seeking to restrain the 5th Respondent from discharging its statutory mandate, as such conduct amounts to approbation and reprobation of the merger review process. 19.The 5th Respondent further contends that, upon receipt of its prior decision, the 1st Petitioner was required to challenge the same through the statutory appellate mechanism provided under section 40 of the Competition Act, read together with Rule 15(2) of the Competition Tribunal (Procedure) Rules, 2017, which procedure was not exhausted. It also emphasized that it is a distinct entity from the Competition Tribunal. 20.In view of the foregoing, the 5th Respondent asserted that the Petitioners have not established a prima facie case with a likelihood of success to justify the grant of conservatory orders. It maintained that the Petitioners’ apprehension of an adverse decision in relation to the share transfer is premature and does not constitute sufficient grounds for such relief. Further, it was contended that the orders sought are contrary to public interest, being that merger assessments are time‑bound under section 44(1)(a) of the Competition Act and must be concluded within 60 days of notification. It is argued, therefore, that the grant of the orders would occasion a direct and unlawful breach of its statutory obligations. 21.The 5th Respondent relied on the decision of Mwamuye, J, in the case of Bia Tosha Distributors v Kenya Breweries Limited & 4 others [2026] KEHC 4798 (KLR), arguing that the issue of conservatory orders had already been addressed therein, and hence the present application amounts to an abuse of the court process. Finally, it faults the mandatory orders sought against it on the ground that they are final and require a clear and unequivocal case, which the Petitioners have failed to establish. 6th Respondent 22.Rebutting the Petition and Application, the 6th Respondent filed its Grounds of Opposition dated 19th May 2026 on the premise that:i.The Petition and the Petitioner's Notice of Motion are sub judice, misconceived and an abuse of the process of this Court to the extent that they raise matters that are directly and substantially in issue in other pending proceedings involving substantially the same factual matrix, including:a.The arbitration between the 1st Petitioner and the 1st Interested Party (the Arbitration Proceedings);b.Constitutional Petition No. E029 of 2024 - Kenya Breweries Limited v. Mutinda Mutuku & 3 others (the Constitutional Proceedings);c.Commercial Civil Suit No. E032 of 2026; Jilk Construction Company Limited v. Diageo PLC & Others (the Commercial Proceedings);d.Miscellaneous Criminal Application No. El 110 of 2026 -Jilk Construction Company Limited & Others v. Diageo PLC & Others (the Criminal Proceedings).ii.The Petitioners are inviting this Court to determine issues already pending before other fora and which are therefore barred by the doctrine of sub judice, including allegations concerning the construction works undertaken by the 1st Petitioner for the 1st Interested Party; sexual harassment; fabrication of evidence; provision of false information to the police; criminal liability; unfair business conduct; and prejudice said to arise from the 6th Respondent's proposed divestiture of its indirect shareholding in the 7th Respondent to the 1st Respondent (the Transaction);iii.The Petition and the Application amount to forum shopping and a collateral attempt to obtain, through constitutional proceedings, relief that is already sought or capable of being sought in the various pending proceedings outlined at Ground No. 1 above, as well as any available statutory or administrative channels;iv.The Petitioners have not disclosed any reasonable cause of action against the 6th Respondent arising from the Transaction. The Petition does not show that the Transaction assigns, novates, transfers, extinguishes or otherwise prejudices any alleged claim or remedy available to the Petitioners against any other proper party;v.The Petition does not identify any legal obligation requiring the 6th Respondent to conduct an investigation or prepare a report on human rights violations, much less as a condition precedent to completion of the Transaction, to conduct an investigation or prepare a report into the alleged human rights violations. The United Nations Guiding Principles on Business and Human Rights are merely soft law, are not binding, do not create new international law obligations, and cannot be converted into a transaction-stopping obligation against the 6th Respondent;vi.The Petitioners' complaint before the 5th Respondent concerns matters outside the 5th Respondent's statutory mandate. In addition, the Petition is an abuse of the process insofar as it seeks substantially the same regulatory outcome in this Petition by recasting it as a constitutional challenge to the alleged absence of a Chairperson of the Competition Tribunal (which is denied), or as a basis for restraining regulatory approval or implementation of a shareholder-level transaction;vii.Further, and in any event, the Petitioners have wholly failed to demonstrate the impediment to lodging an official appeal before the Competition Tribunal within the statutory 30-day period, even if the hearing of any such appeal had to await the Competition Tribunal being properly constituted;viii.This Court lacks jurisdiction to review the 5th Respondent's decision or exercise supervisory jurisdiction over it. The proper remedy lies in an appeal to the Competition Tribunal under Section 40(1) of the Competition Act. The Petitioners cannot circumvent that statutory framework by recharacterizing their dissatisfaction as a constitutional violation by the 6th Respondent. Nor does the alleged absence of a Chairperson of the Competition Tribunal justify transaction-stopping relief against the 6th Respondent, which has no statutory role in that appointment;ix.Without prejudice to Grounds No. 6, 7 and 8 above, the overlap with the commercial proceedings is not limited to monetary relief. The Amended Plaint in the Commercial Proceedings also seeks relief directed at the 5th Respondent's decision-making process, including a mandatory injunction compelling the 5th Respondent to take account of the judgment eventually delivered within those proceedings. The Petitioners are therefore attempting, through this Petition, to reopen and repackage regulatory relief already being pursued in the commercial proceedings;x.The Petitioners have not pleaded, with any degree of specificity, or at all, a legal or factual nexus between the alleged grievances and the drastic orders sought against the 1st and 6th Respondents with respect to the Transaction. The relief sought is therefore disjointed from the underlying cause of action, is speculative, disproportionate, and legally unsustainable;xi.The Petitioners are seeking final, mandatory and far-reaching orders at an interlocutory stage, including orders that would impermissibly compel the 6th Respondent's continued ownership of the 7th Respondent, restrain implementation of the transaction, interfere with ongoing statutory and regulatory processes, and compel executive action in relation to the Competition Tribunal. Those orders are not available on the basis of the case as pleaded against the 6th Respondent;xii.The orders sought against the 6th Respondent in connection with the transaction are an impermissible assault on the 6th Respondent's property rights as enshrined in Article 40 of the Constitution;xiii.The Petitioners have failed to satisfy the threshold for invoking the constitutional jurisdiction of this Court against the 6th Respondent as the Petition is framed around private, contractual, arbitral, commercial, regulatory and criminal allegations that are already the subject of the other proceedings outlined at Ground No. 1 above;xiv.The Petition and the Application offend the principles of constitutional avoidance, exhaustion of available remedies, proportionality, finality, and orderly administration of justice; andxv.The Petition and the Application are therefore incompetent, vexatious and an abuse of the process of this Court insofar as they seek relief against the 6th Respondent. 23.The 6th Respondent also opposed both the Petition and the application through a Replying Affidavit sworn on the same date by its Legal Counsel, Jessica Carrie Thompson. The 6th Respondent contended that the dispute before the Court principally concerns the Petitioners’ attempt to obtain orders restraining and interfering with a major shareholder transaction, notwithstanding that the Petition does not primarily arise from or concern that transaction. 24.Ms Thomson deposed that the dispute stems back to the construction contract relating to Project Nafasi between the 1st Petitioner and the 1st Interested Party, which subsequently gave rise to arbitral proceedings commenced in 2020. It is further deposed that the 1st Interested Party later instituted Constitutional Petition No. E029 of 2024, in which conservatory orders were issued staying or suspending the publication and delivery of the arbitral award. Following the 6th Respondent’s public notice dated 17th December 2025, the Petitioners demanded that provision be made for the 1st Petitioner’s claim, ranging between Kes 2.4 and Kes 2.5 billion. 25.She stated that by a response dated 6th January 2026, the 1st Interested Party’s advocates advised that the proposed transaction was a parent-company shareholding transaction which neither affected the legal status, obligations, nor operations of the 1st Interested Party or the 7th Respondent, and further that the contracts forming the subject of the arbitral proceedings were between the 1st Petitioner and the 1st Interested Party. In reaction to this communication, the 1st Petitioner lodged a complaint before the 5th Interested Party, which ultimately determined that it lacked jurisdiction over the matter. The 6th Respondent maintains that the allegation that the Petitioners were denied a hearing is unfounded, noting that the 5th Respondent subsequently invited the 1st Petitioner on 18th May 2026 to ventilate any concerns regarding the transaction. 26.Ms Thomson further deposed that, contemporaneously, the 1st Petitioner instituted Commercial Civil Suit No. E032 of 2026, in which, among other reliefs, it sought orders compelling the 6th Respondent to allocate, reserve and deposit Kes 3 billion on account of the anticipated arbitral award and the proposed transaction. According to the 6th Respondent, the overlap between the present Petition and the commercial suit extends beyond monetary relief, as the amended Plaintiff in the commercial proceeding also seeks relief directed against the 5th Respondent. She therefore contended that the instant Petition seeks to re-litigate reliefs already being pursued elsewhere. 27.Reference was also made to the Criminal Miscellaneous Application No. E1110 of 2026, in which the 1st Petitioner seeks leave to institute and conduct a private prosecution against the 7th Respondent, the 1st Interested Party and others, on allegations substantially overlapping with those raised in the present Petition. The 1st Petitioner was accused of material non-disclosure for failing to disclose the existence of these parallel suits to the court. 28.In the 6th Respondent’s view, the Petition does not disclose a genuine constitutional grievance but is instead intended to exert pressure for settlement. It is further argued that the Petitioners failed to satisfy the threshold for the grant of the interim reliefs sought. The 6th Respondent contends that the orders sought are mandatory and final in nature and therefore attract a higher threshold than that applicable to ordinary conservatory relief. 29.The 6th Respondent pointed out that the Petition seeks, among other orders, to restrain the sale of the 6th Respondent’s shareholding in the 7th Respondent to the 1st Respondent, to restrain regulatory steps relating to the transaction, to preserve the 6th Respondent’s ownership and control of the 7th Respondent, to compel the appointment of a Chairperson of the Competition Tribunal, to compel the 5th Respondent to hear the 1st Petitioner’s grievances and to compel the 3rd Respondent to supervise human rights due diligence. 30.The 6th Respondent further stated that the capital markets regulators in Kenya, Tanzania and Uganda had already granted the requisite exemptions from mandatory takeover requirements in relation to the proposed acquisition by the 1st Respondent, rendering the issue moot and overtaken by events. 31.The 6th Respondent also argued that the Petition fails to establish a prima facie case, there being no pleaded and evidential nexus between the grievances advanced by the Petitioners and the transaction sought to be restrained. It is contended that the 1st Petitioner had erroneously assumed that the shareholding transaction between the 6th Respondent and the 1st Respondent could serve as security for its dispute with the 1st Interested Party. Reliance was placed on the decision of the Court in Bia Tosha Distributors v Kenya Breweries Limited & 4 others [2026] KEHC 4798 (KLR), where the Court declined to interfere with a commercial transaction and observed that public interest favours legitimate commercial transactions proceeding, subject to regulatory oversight, and that interlocutory judicial interference with such transactions would send a negative signal to markets and foreign investors. The 6th Respondent maintained that the same reasoning applies to the present case. 32.Regarding the United Nations Guiding Principles on Business and Human Rights, the 6th Respondent asserted that the Principles are not legally binding and do not create obligations in the manner suggested by the Petitioners. It was argued that the Principles emphasize the need for disputes to be resolved before the appropriate forums and do not support litigants bypassing specialized courts, statutory appellate mechanisms or pending proceedings in order to obtain interlocutory orders, and the freezing private commercial transactions based on vague and unparticularized allegations. In any event, the 6th Respondent contends that the Petitioners had not presented any credible, specific or transaction-linked evidence demonstrating non-compliance with any human rights obligations that would justify restraining a transaction of such magnitude. 33.The 6th Respondent further maintains that the reliefs sought are final in nature and unavailable at this stage. It is also argued that the Petitioners had failed to establish any legal or factual basis for compelling the 6th Respondent to remain an indirect shareholder in the 7th Respondent pending the resolution of grievances unrelated to the proposed transaction. The 6th Respondent, therefore, urged that the Petitioners’ grievances ought to be determined in the appropriate forums, where proceedings are already pending. 7th Respondent 34.The 7th Respondent filed a Notice of Preliminary Objection dated 13th May 2026 opposing the Application on the following grounds:i.This Court and the Competition Tribunal lack jurisdiction pursuant to Articles 162(2)(a) and 165(5)(b) of the Constitution, as read together with Section 12 of the Employment and Labour Relations Court Act, to hear and determine the disputes pleaded in the Petition, the substratum whereof concerns employment and labour relations matters and alleged breaches of Sections 5 and 6 of the Employment Act, 2007;ii.This Court and the Competition Tribunal lack jurisdiction to hear and determine the alleged sexual harassment claims, which are in any event the subject of pending proceedings in Chief Magistrate Criminal Case No. E1110 of 2026;iii.The Petition offends the doctrine of constitutional avoidance insofar as it seeks to invoke this Court’s constitutional jurisdiction in respect of matters that fall squarely within specialized statutory and regulatory frameworks for which Parliament has prescribed adequate procedures, remedies and adjudicative mechanisms;iv.The Petition discloses no cognizable cause of action arising under the Competition Act and identifies no appealable determination, actionable anti-competitive conduct or reviewable regulatory decision capable of properly invoking the jurisdiction of the Competition Tribunal;v.The purported unavailability of the Competition Tribunal cannot, as a matter of law, vest this Court with jurisdiction where none otherwise exists, nor provide a basis for restraint of a commercial transaction undertaken within the framework of applicable regulatory approvals;vi.The Petition is premature, incompetent and contrary to the doctrine of exhaustion of statutory remedies as contemplated under Section 9 of the Fair Administrative Action Act, which requires parties to first exhaust available statutory dispute resolution and appellate mechanisms before invoking the jurisdiction of this Court; andvii.The reliefs sought in the present proceedings invite this Court to assume functions that are legally vested in independent statutory regulators, contrary to the principles of separation of powers and judicial restraint. 35.The 7th Respondent and the 1st Interested Party opposed the Notice of Motion before the Court through a Replying Affidavit sworn on 19th May 2026 by Nadida Rowlands, the 7th Respondent’s Group Legal Director. It is asserted that the Petition arises from a long‑standing commercial and contractual dispute between the 1st Petitioner and the 1st Interested Party relating to Project Nafasi. It was deposed that the 1st Petitioner sought to escalate the dispute by instituting multiple proceedings before different forums, including arbitral, commercial, and criminal proceedings, all based on the same factual background, with the present matter being an attempt to reframe the dispute as a constitutional petition. 36.The 7th Respondent asserted that, considering the multiplicity of proceedings, the present Petition is sub judice and thus bad in law, as it seeks to re‑litigate matters already pleaded and pending determination before competent courts. It was emphasized that the grievances raised herein are substantially identical to those in the pending proceedings, as all emanate from the same contractual relationship and are grounded on similar allegations of unlawful and unethical conduct, including claims of sexual harassment, exploitation, fabrication of evidence, and obstruction of justice allegedly attributable to the 6th Respondent and its officers. It was noted that these allegations are anchored in the 1st Petitioner’s complaint letter dated 12th January 2026, addressed to the 5th Respondent. In those circumstances, the 7th Respondent maintained that the Petitioners cannot transmute an ordinary commercial dispute into a constitutional question merely by invoking constitutional provisions in matters that remain contested and unproven. 37.It was also contended that the Petition offends the doctrines of constitutional avoidance and exhaustion of remedies as the issues raised fall squarely within the framework under the Competition Act, which provides a comprehensive statutory mechanism for the resolution of such disputes and appeals, which the Petitioners had failed to exhaust. 38.On the question of issuance of conservatory orders, the 7th Respondent argued that the requisite threshold has not been met. It is asserted that no competent appeal lies before the Competition Tribunal and that the absence of a substantive Chairperson, even if assumed, does not render the Tribunal inoperative. In any event, it was deponed that the statutory period for lodging an appeal lapsed on 18th March 2026, and so the Petitioners cannot circumvent statutory limitation periods by recasting a time‑barred appeal as a constitutional petition. The Petitioners were further accused of indolence for failing to move the appropriate forum within the prescribed timelines, thereby rendering the present Petition an afterthought. 39.The 7th Respondent stressed that there is no nexus between the impugned transfer of shareholding by the 6th Respondent and the grievances raised in the Petition, being that the alleged acts occurred during the implementation of the Project between 2017 and 2018. It was further argued that the Petition disregards the doctrine of separate corporate personality, in that the 6th and 7th Respondents are distinct legal entities, and a change in shareholding neither extinguishes liabilities nor affects accrued causes of action or the legal identity of the entities concerned. The proceedings were thus characterized as an attempt to exert collateral commercial pressure rather than present a bona fide constitutional litigation. 40.It was further averred that the Petition would not be rendered nugatory by the completion of the share transfer. As such, it was noted that the transaction would not impede the enforcement of any decree or judgment that may ultimately be issued. In particular, it was noted that the 7th Respondent and the 1st Interested Party would remain within the jurisdiction of the Court, that reciprocal enforcement mechanisms exist in respect of foreign entities and that a share transfer does not amount to the dissipation of assets to frustrate execution of a monetary decree. 41.On public interest, reliance was placed on the decision of the High Court in Bia Tosha case (supra), where the Court recognized the risks attendant to restraining commercial transactions at an interlocutory stage, including the potential negative impact on markets and foreign investment. It is thus contended that the balance of convenience militates against the grant of the orders sought. 42.Finally, the 7th Respondent argues that the threshold for the grant of a mandatory injunction had not been satisfied. The said relief was described as exceptional and available only in the clearest of cases where a clear and uncontested legal right is established. The Petitioners' reliance on the United Nations Guiding Principles on Business and Human Rights was said to be misplaced, as the principles are non‑binding. In conclusion, it was asserted that the application lacks merit and constitutes an abuse of the Court process. Interested Parties Case 43.The 2nd, 3rd, 4th, 5th and 7th Interested Parties did not file any responses and took no part in these proceedings. 6th Interested Party 44.The 6th Interested Party, in reply to both the Petitioner's and the 6th Respondent’s application, filed a Replying Affidavit sworn on 19th May 2026 by its Chief Executive Officer, Ms Florence W. Muturi. 45.The 6th Interested Party contended that the central issue arising in the Petition concerns the application of the United Nations Guiding Principles on Business and Human Rights in Kenya and to businesses operating within the country. It is deponed that these Principles, which were endorsed by the United Nations General Assembly in 2011, impose a responsibility upon all businesses to respect human rights, address adverse human rights impacts arising from their operations, and refrain from contributing to human rights violations. Although the Principles constitute soft law, it was asserted that they are universally recognized and possess significant normative force in many jurisdictions, including Kenya, by virtue of Articles 2(5) and 2(6) of the Constitution. Accordingly, it was argued that it would be remiss for Kenya to fail to apply the United Nations Guiding Principles on Business and Human Rights, to the detriment of its own citizens. 46.The 6th Interested Party further averred that Kenya has taken additional steps towards the implementation of the Principles through the office of the 3rd Respondent by developing a National Action Plan on Business and Human Rights. The Action Plan was described as being a comprehensive strategy to protect individuals from human rights abuses perpetrated by businesses, whether privately or state-owned. It is noted that the Action Plan requires businesses to adopt human rights policies and implement measures to ensure their operations respect human rights, including by providing access to effective remedies for human rights violations. It was contended that the Action Plan further recognizes that State-based judicial and non-judicial mechanisms ought to constitute the primary avenues through which victims of corporate human rights abuses may obtain redress. 47.The 6th Interested Party stated that the Implementing Committee envisaged under the Action Plan had not been constituted and that no State-based non-judicial mechanism exists for the redress of human rights abuses committed by private businesses. It was further observed that, notwithstanding the Action Plan's provision for review within five years of its adoption in 2020, no such review has been undertaken to date. 48.Consequently, the 6th Interested Party argued that Articles 3, 10, 21, 43 and 156(6) of the Constitution impose an obligation upon the 2nd, 3rd, 4th and 5th Respondents to apply and enforce the United Nations Guiding Principles on Business and Human Rights. It was contended that the State had failed to discharge these constitutional obligations, thereby leaving victims of corporate human rights abuses wholly dependent on judicial mechanisms and processes as the sole means of obtaining redress. 6th Respondent’s Application 49.The 6th Respondent, in response to the Petition, filed its Notice of Motion Application dated 13th May 2026, seeking orders that:i.Spent;ii.This Application be heard in priority to the Petitioners' Notice of Motion dated 8th May, 2026 and any other matter in this Petition;iii.Pending the hearing and determination of this Application, this Court be pleased to suspend the running of time for the filing of responses and submissions to the Notice of Motion dated 8th May 2026 and to direct that no adverse procedural or substantive consequences shall accrue against the Respondents during such period of suspension;iv.Pending the hearing and determination of this Application, this Court be pleased to stay all proceedings in this Petition on the grounds that the same offends the doctrine of sub judice;v.This Court be pleased to strike out the Petition herein dated 8th May 2026 on the grounds that the same offends the doctrine of sub judice and constitutes an abuse of the Court, the matters raised in the said Petition being directly and substantially in issue in pending proceedings involving substantially the same parties and arising from the same underlying facts and subject matter, namely, Milimani HCCOMM No. E032 of 2026 Jilk Construction Company Limited v Diageo PLC & 3 Others; Criminal Miscellaneous Application No. E1110 of 2026, Jilk Construction Company Limited & 3 Others v Diageo PLC & 6 Others and Nairobi High Court Commercial Petition No. E029 of 2024, Kenya Breweries Limited v Mutinda Mutuku & 3 Others;vi.In the alternative, to Order No. 5 above, this Court be pleased to stay the Petition herein and all proceedings therein (save for the Instant Application) pending disposal of the related proceedings currently pending in various Courts involving substantially the same parties and arising from the same underlying facts and subject matter in Milimani HCCOMM No. E032 of 2026 Jilk Construction Company Limited v Diageo PLC & 3 Others; Criminal Miscellaneous Application No. E1110 of 2026, Jilk Construction Company Limited & 3 Others v Diageo PLC & 6 Others and Nairobi High Court Commercial Petition No. E029 of 2024, Kenya Breweries Limited v Mutinda Mutuku & 3 Others;vii.This Court make any such further orders and issue any other relief it may deem just to grant in the interests of justice and in light of the circumstances of this matter; andviii.The costs of this Application shall be borne by the 1st Petitioner. 50.The said application is supported by the affidavit of Ms Jessica Carrie Thompson, sworn on the same date and also on the grounds listed in the body of the said application. The deponent reiterated the background of this case and its key assertions, as captured in the deponent's response to the Petitioners’ motion. The Objections Raised by the 1st and 5th Respondents 51.I have already adverted to the objections raised by the 1st and the 5th Respondents above. There is therefore no need for me to rehash the same here. Both parties raise questions of jurisdiction, which I shall address in my determinations below. 7th Respondent and 1st Interested Party’s Preliminary Objection 52.The 7th Respondent and 1st Interested Party filed Notice of Preliminary Objection and Grounds of Opposition, both dated 13th May 2026, both of which contest this Court’s jurisdiction to hear and determine the Petition and to issue conservatory orders. 53.The said objections are on the basis that the Petition raises allegations concerning sexual harassment, workplace conditions and violations of fair labour practices which fall within the jurisdiction of the Employment and Labour Relations Court. As such, it was argued that this Court lacks jurisdiction to entertain the employment and labour-related issues. 54.It was contended that although the sexual harassment claims were made in 2018, the 1st Petitioner, bearing the primary statutory responsibility to address such complaints, failed to conduct any timely or proper investigation into the allegations at the material time and only raised them with the 1st Interested Party in 2019, after the contractual relationship between the parties had deteriorated. In the circumstances, it was said that it was untenable for the Petitioners to now seek to transfer or impose upon the Respondents legal obligations and employer responsibilities that properly rested with the 1st Petitioner. 55.It was thus urged that constitutional litigation ought not to be used as a substitute for ordinary civil, commercial, labour or statutory proceedings, where adequate remedies already exist. The 7th Respondent and the 1st Interested Party, therefore, urged that the motion ought to be dismissed. Petitioners’ Response 56.The 1st Petitioner’s director, Sammy Maina Kamau, in the sworn Replying Affidavit dated 19th May 2026, denied the allegation that the Petition is sub judice. He argues that the claim is unfounded, as presently no other matter is before any forum regarding the enforcement of their fundamental rights and freedoms. Furthermore, he asserted that the Petitioners are not enjoined in any suit with the 1st to 5th Respondents. He also refuted the claim that the 1st Petitioner is guilty of material non-disclosure, arguing that the existing suits have no bearing on the current Petition. Equally, there was no nexus between the reliefs sought in the Petition and the intended private prosecution case against the 6th Respondent. 57.He maintained that whereas the 6th Respondent was not a party to the construction contracts between the 1st Petitioner and 1st Interested Party, the project was implemented by it and the grievances were allegedly committed by its employees. Moreover, this Petition and the existing proceedings are said to revolve around various issues other than the 5th Respondent’s letter dated 12th January 2026 as advanced. 58.He deponed that subsequent to the filing of this suit, the 5th Respondent invited the 1st Petitioner for a preliminary meeting with a view to adjudicating upon its grievances in a meeting held on 18th May 2026. In the meeting, it is averred that the 5th Respondent undertook to ensure that the 1st Petitioner’s complaint is heard and determined on merit. 59.He asserts that the adverse implication of the 6th Respondent’s actions as outlined in the Petition occurred before the share transfer transaction, which was publicized on 18th December 2025. Consequently, the claim that the Petition is an attack on the transaction is false. The deponent stated that contrary to the 6th Respondent’s averments, the Petitioners have not sought any reliefs that fall under the jurisdiction of the Employment and Labour Relations Court. To this end, it was urged that the 6th Respondent’s application lacked merit and ought to be dismissed. Parties Submissions 60.The two applications and the respondents' objections were canvassed through written and oral submissions. I shall give a précis of each party's submissions below. The Petitioners’ Submissions 61.On 20th May 2026, the Petitioners, through Messrs. Kinoti and Kibe Advocates, filed submissions in support of their case. 62.On conservatory orders, the Petitioners, relying on the principles set out in Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others (2014) eKLR, Invesco Assurance Co. vs MW (Minor Suing Thro next friend and Mother (HW) [2016] eKLR and Attorney General vs Sumair Bansaraj [1985] 38 WIR 286, submitted that the Petition is arguable. This claim was anchored in the evidence adduced against the 6th and 7th Respondents regarding their conduct during the implementation of Project Nafasi, which they claimed amounted to a violation of their rights under Articles 27, 40 and 50 of the Constitution and the UN Guiding Principles on Business and Human Rights. Similarly, despite the provisions of Articles 2, 10, 20 and 21 of the Constitution, the State, through the 2nd, 3rd, 4th and 5th Respondents, had failed to protect them from harm, losses and violations occasioned by the impending transfer of shares between the 1st and 6th Respondents. 63.The Petitioners argued that the Petition will be rendered nugatory if the orders are not issued since the 6th Respondent’s exit from Kenya will be prejudicial to them, as the latter was the key perpetrator of their grievances. They stressed that human rights cannot be sacrificed at the altar of commercial interests. Reliance was placed in Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & another [2015] KEHC 6984 (KLR), where it was held that even in fighting terrorism, the State must ensure that human rights are not violated. Accordingly, it was argued that the orders be issued in the public interest. 64.The petitioners' counsel submitted that the 1st Respondent’s objection that it wasn’t properly served lacked merit. The Petitioners contend that the 1st Respondent had not filed a substantive response in the form of an objection to challenge this Court’s jurisdiction. It was underscored that service was made pursuant to Rule 14 of the Mutunga Rules, and in effect, the 1st Respondent is aware of the case against it. Mr Kibe Mungai submitted that the 1st Respondent, by virtue of Article 50 of the Constitution and Rule 15(2) of the Mutunga Rules, had a right to respond to the allegations made. It was contended that the 1st Respondent cannot claim that it was not served. 65.The Petitioners, referring to the 5th Respondent’s Preliminary objection, argued that the 5th Respondent, having correctly conceded the Petitioners' case for hearing of its complaint, cannot simultaneously file preliminary objections and a Replying Affidavit contending that the Petition herein is premature and defective. Furthermore, the 4th Respondent’s approval of the share transaction without responding to their complaints is contended to be unlawful by dint of Article 27 and 50 of the Constitution. 66.Reliance was placed on Kenya Pipeline Company Ltd vs. Glencore Energy (UK) Ltd [2016] eKLR, where the Court stated that the principle of public policy is this: ex dolo malo non oritur actio, no Court will lend its aid to a man who found his cause of action on an immoral and illegal act. It was contended that the 5th, 6th and 7th Respondents' assertion on breach of the doctrine of exhaustion was unfounded, as any party has a direct right to approach the Court in view of breach of any provision, in this case, the Competition Act. Regarding the 6th and 7th Respondents’ preliminary objections, it was urged that these were based on contested facts and thus were not sustainable. 1st Respondent’s Submissions 67.The 1st Respondent, through NBMA Advocates LLP, filed submissions dated 20th May 2026. At the outset, the 1st Respondent highlighted that the Court must first determine whether it has lawfully assumed jurisdiction over it, being a Japanese corporation resident outside Kenya and whether proper service was effected upon it before taking any further step in the Petition. 68.Relying on Attorney General & 2 others v Ndii & 79 others; Dixon & 7 others (Amicus Curiae) [2022] KESC 8 (KLR) and Independent Electoral and Boundaries Commission & 4 others v Ndii & 312 others; Kenya Human Rights Commission & 4 others (Amicus Curiae) [2021] KECA 363, the 1st Respondent argued that a Court must satisfy itself that proper service has been effected before proceeding, as service is a cardinal requirement of natural justice and a party cannot be condemned unheard. The 1st Respondent contended that its conditional appearance is lawful and consistent with the principle that a foreign party may enter appearance solely to challenge jurisdiction, as was recognized in Raytheon Aircraft Credit Corporation & another v Air Al-Faraj Limited [2005] KECA 312 (KLR). 69.The 1st Respondent further submitted that, because it is incorporated and resident in Japan, the Petitioners were required to seek and obtain leave for service out of jurisdiction under Order 5 Rules 21 and 25 of the Civil Procedure Rules, before any Kenyan court could assume jurisdiction over it. Those provisions, it argued, are mandatory and constitute the only statutory pathway for assuming jurisdiction over a non-resident Respondent. The 1st Respondent maintained that the Civil Procedure Rules on service apply to constitutional petitions. Reliance was placed in Independent Electoral and Boundaries Commission & 4 others v Ndii (supra), where the Court underscored that although the Mutunga Rules do not save the application of the Civil Procedure Rules in respect to proceedings brought under Article 22 of the Constitution, the Courts have found that the Rules can be imported to fill gaps in the Mutunga Rules. 70.Comparable reliance was placed in Njiru v Nature & Style Fun Day Events & another; Rebecca Muriuki t/a Kahaari (Proposed Third Party) [2020] KEHC 2051 (KLR) and Premier Hospital Limited v Meditec Systems Limited & another [2021] KEHC 683 (KLR). 71.Accordingly, the 1st Respondent emphasized that Order 5 rule 25 of the Civil Procedure Rules on the requirement to seek leave beforeservice out of jurisdiction is based on the canonical rule that this Court cannot assume jurisdiction over persons residing or domiciled outside Kenya unless such leave to effect service of summons out of jurisdiction is first sought and granted as required and such summons or notice thereof are in fact served upon the prospective respondents. 72.To buttress this point, reliance was placed on Raytheon Aircraft Credit Corporation & another (supra), where it was held that the High Court assumes jurisdiction over persons outside Kenya only after leave is granted and service is effected in accordance with the prescribed procedure. 73.Reliance was also placed in the decisions of the Court in Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba, Republic of South Sudan & 3 others [2019] KECA 471 (KLR), Law Society of Kenya v Martin Day & 3 others [2015] KEHC 1336 (KLR), Roberta Macclendon Fonville v James Otis Kelly III & 3 others [2002] KEHC 671 (KLR) and EK v PT [2024] KEHC 11722 (KLR). 74.The 1st Respondent rejected the Petitioners’ argument that the upstream acquisition of indirect shareholding in entities controlling Kenyan subsidiaries itself confers jurisdiction. In its view, the issue is not the location of downstream subsidiaries or the complained-of commercial transaction, but whether the Court had assumed jurisdiction over a non-resident Respondent through the procedure prescribed under Order 5. Since no application for leave was made, the Court was deprived of the opportunity to assess whether this was a proper case for service out of Kenya. The 1st Respondent also argued that the Court’s directions of 11th May 2026 directing service of the Petition and Motion did not cure the omission. 75.Similarly, the 1st Respondent contended that the Petitioners cannot rely on Order 5 Rule 22B of the Civil Procedure Rules to bypass the requirement for leave. Reliance was placed on Kipkorir Kirui v Vuclip Inc & another [2023] KEHC 24642 (KLR), where the Court held that the 2020 amendments permitting electronic service did not abolish the requirement to seek leave before serving process outside Kenya. 76.On service, the 1st Respondent submitted that the Affidavit of Service dated 13th May 2026 and the Supplementary Affidavit of Service dated 14th May 2026 do not demonstrate personal service, nor exhibit a delivery receipt or do not show that the email address used was the last confirmed and used email address of the 1st Respondent as required by Order 5 Rule 22B (2) and (4). Reliance was placed on Independent Electoral and Boundaries Commission & 4 others v Ndii (supra), where the Court of Appeal held that service by email was not proved absent evidence that the address used was the last confirmed address and absent a delivery receipt. 77.In conclusion, the 1st Respondent counsel submitted that this Court had not assumed jurisdiction over it and that service had not been properly effected. Counsel thus prayed that the Motion and the Petition, insofar as they relate to it, be struck out and dismissed with costs. 5th Respondent’s Submissions 78.The 5th Respondent’s advocate, N Mukofu, filed submissions dated 20th May 2026. 79.On jurisdiction, the 5th Respondent, relying on Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), asserted that the Court must satisfy itself on this question before proceeding. Counsel submitted that the Petitioner had not demonstrated compliance with the provisions of Section 40(1) of the Competition Act before approaching this Court. Additionally, it was noted that Rule 9 of the Competition Tribunal (Procedure) Rules provides that the Tribunal shall have jurisdiction to hear and determine appeals from the decisions of the 5th Respondent. Counsel contended that parties, under Section 9(2) of the Fair Administrative Action Act, are required to exhaust available mechanisms before approaching the Court, as a first port of call. To buttress this point reliance was placed on Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR) where it was held that the exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters toensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. 80.Counsel also relied on the following cases, R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, Gupta Umesh Subhash & another v Kenya Revenue Authority & 2 others [2021] KEHC 3751 (KLR), Koko Networks (Kenya) Limited (Under Administration) v Competition Authority of Kenya [2026] KEHC 5480 (KLR), Republic v Competition Authority of Kenya and Airtel Networks Kenya Limited (Ex parte Applicant); Pesapal Limited & 3 others (Interested Parties) [2024] KEHC 14694 (KLR). 81.This notwithstanding, it was argued that the Petitioners had failed to lodge the appeal against the decision of the 5th Respondent within the 30-day period prescribed under Section 40(1) of the Competition Act. It was argued that the said provision creates a time-bound period within which to lodge an appeal. In support of the said contention counsel relied on the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) where it was held that where the law provides for the time within which something ought to be done, if that time lapses, one need to first seek extension of time before he can proceed to do that which the law requires. 82.Counsel also relied on the case of Aprim Consultants v Parliamentary Service Commission & another [2021] KECA 1090 (KLR). 83.The 5th Respondent urged that the Petition was barred by the principle of constitutional avoidance. This is because the cause against it arises from its denial to investigate the complaint lodged by the 1st Petitioner, which ought to have been determined by the Competition Authority. In light of this, it was argued that this Court cannot be invited to determine the dispute between the Petitioners and the 5th Respondent, as it is a regulatory dispute. 84.Mr Mukofu urged the court to rely on the case of Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), where it was held that the principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. Like dependence was placed with Ernest C.O. Muga v Attorney General [2018] KECA 254 (KLR). 6th Respondent’s Submissions 85.Messrs. Njoroge, Regeru and Company Advocates filed submissions dated 20th May 2026 for and on behalf of the 6th Respondent. 86.Echoing the other Respondents, the 6th Respondent maintained that the Petition is incompetent, misconceived and an abuse of the Court process. It was contended that the Petition offends the doctrine of sub judice, as underscored in the case of Kenya National Commission on Human Rights (supra). It was urged that the Petition addressed overlapping issues which are already being canvassed in the existing proceedings. In support of this claim, reliance was also placed on Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR and Teachers Service Commission v Simatei & another [2025] KEELRC 3442 (KLR). 87.Mr Njoroge Regeru, Senior Counsel, urged that the Petition was an abuse of the Court process, an element which has been discussed in various authorities such as Okiya Omtatah Okoiti v Communications Authority of Kenya & 14 others [2015] eKLR, Pop In (Kenya) Ltd & 3 Others vs Habib Bank AG Zurich (1990) KLR 609 and Apondi v Canuald Metal Packaging [2005] 1 EA 12. It was emphasized that a party must bring in one suit all matters belonging to the same controversy and may not later raise matters which could and should have been litigated earlier. The 6th Respondent reasoned that the Petition is not an independent cause of action. It forms part of a multiplicity of proceedings arising from the same factual substratum, namely the construction contract, the arbitration proceedings, the commercial proceedings and regulatory and criminal complaints. It was asserted that these grievances had been repackaged throughout these proceedings, thereby fragmenting a single controversy and inviting parallel adjudication by different forums. 88.Consequently, the 6th Respondent, relying on the case of Samuel Kamau Macharia (supra), argued that this Court does not have jurisdiction to determine this suit, as it offends the doctrine of constitutional avoidance, exhaustion and dictates of Article 162(2)(a) and 165(5)(b) of the Constitution. 89.On issuance of conservatory orders, it was argued that at its core, the Petitioners' motion seeks to halt a shareholder-level transaction which is not the substratum of the pleaded dispute. Counsel submitted that restraining the transaction pending the 3rd Respondent’s assessment of compliance with the UN Guiding Principles on Business and Human Rights would be unprecedented and legally unsustainable. 90.It was submitted that in the circumstances of this case, the threshold for the grant of the conservatory order had not been satisfied by the Petitioners. Relying in the opine outlined in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR, the 6th Respondent asserted that the Petitioners had a duty to demonstrate a clear constitutional violation arising directly from theimpugned transaction, imminent and irreparable harm not remediable elsewhere, that the public interest favours halting a major commercial transaction and that the relief sought will not determine the Petition in advance, which they failed to do. This is especially since there is no evidence that refusing to halt the Transaction would cause irreparable constitutional prejudice. In its view, the Petitioners' claims remain fully justiciable in the existing proceedings. 91.Turning to the mandatory relief sought, the 6th Respondent submitted the Court of Appeal in Nation Media Group & 2 others vs. John Harun Mwau [2014] KECA 308 (KLR) held that an applicant must demonstrate special circumstances, that a different standard, higher than that in prohibitory injunction, is required, and that such relief is granted only in exceptional circumstances and in the clearest of cases. Like dependence was placed in Locabail International Finance Ltd v Agro Export and Others (1986) 1 All ER 901. 92.The 6th Respondent argued that the orders directed at the 3rd and 5th Respondents fail this threshold as the Petitioners failed to identify special circumstances of their claim. Further, it was noted that the 5th Respondent has statutory discretion under the Competition Act to assess whether a complaint falls within its mandate and warrants investigation or further action. Similarly, it was underscored that, by virtue of Article 156 of the Constitution, the 3rd Respondent is the Government's principal legal adviser, and her mandate does not extend to supervising, enforcing, or certifying human rights due diligence for private commercial transactions. 7th Respondent’ s and 1st Interested Party’s Submissions 93.Messrs. Iseme, Kamau and Maema Advocates for the said parties filed two sets of submissions dated 14th and 20th May 2026. 94.Mr Kamau Karori, Senior Counsel, for the said parties submitted, relying on the case of Macharia & Another v Kenya Commercial Bank Ltd (supra) submitted that this Court should decline jurisdiction on account of the doctrine of constitutional avoidance as echoed in Communications Commission of Kenya & 5 Others (supra) and Wataari & 11 Others v Registered Trustees of Telposta Pension Scheme [2023] KECA 1171 (KLR). Secondly, that it should do so on account that available remedies had not been exhausted as enunciated under Sections 9(2) and 9(4) of the Fair Administrative Action Act. In this regard, it was argued that no application for exemption had been made by the Petitioners before this Court, which is fatal to the Petition. To buttress this point reliance was placed in Republic v Competition Authority of Kenya; Airtel Networks Kenya Limited [2024] KEHC 14694 (KLR), where it was held that a litigant who had neither exhausted the statutory appellate mechanism under the Competition Act nor soughtexemption under Section 9(4) of the Fair Administrative Action Act could not properly invoke the Court’s supervisory jurisdiction. 95.Revisiting the facts of the case, it was urged that the Petition chiefly, concerns the alleged labour and employment grievances,alleged harassment and criminal conduct, commercial disputes arising from the contract the 1st Petitioner and 1st Interested Party’s entered into regarding Project Nafasi and complaints lodged before the 5th Respondent. In light of this, these parties argued that the Petitioners cannot under the guise of a Constitutional Petition seek to revive what is, in effect, a time-barred statutory appeal. 96.Kamau Karori, SC contended that the Petition offends the doctrine of sub judice owing to the existing proceedings before various courts. It was noted that the Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] KESC 54 (KLR) and Muchiri v Board of Management of Kenya Hospital Association & 2 Others [2025] KECA 2315 (KLR) it was observed that litigants cannot evade the doctrines of res judicata and res sub judice through cosmetic reframing of disputes, addition of parties or constitutional drafting where the underlying controversy remains substantially the same. 97.Further from this, it was maintained that there is no nexus between the Petitioners claim and the share transfer. It was submitted that the Petitioners’ case proceeds on an erroneous conflation of a shareholder transaction with the liabilities and legal identity of the corporate entities involved. Counsel pointed out that the impugned transaction concerns an indirect transfer of shareholding at shareholder level and does not extinguish the legal personality, obligations or liabilities of the 6th and 7th Respondent or the 1st Interested Party.As noted in Delina General Enterprises (K) Ltd v KenolKobil Ltd [2019] eKLR, a sale of shares does not affect a company’s liabilities or its capacity to meet existing claims. 98.Turning to conservatory orders, these parties argued that the threshold of grant of such orders had not been met. Referring to the Bia Tosha case, counsel urged that the Court had declined to issue similar orders holding that conservatory orders cannot issue in respect of a commercial transaction that is collateral to the substantive dispute absent a clear nexus between the transaction and the constitutional issues before the Court. The Petitioners were accused of failing to demonstrate any irreparable prejudice warranting conservatory relief as completion of the impugned transaction does not extinguish or render nugatory the Petitioners’ claims or the Court’s ability to grant effective relief at the conclusion of the proceedings. As such, the balance of convenience and public interest was said to favour refusal of grant of the relief. 99.On the sought mandatory injunction under prayers 8 and 9, it was submitted that the same is not tenable as the 5th Respondent had already determined that the matter falls outside its statutory mandate and thus cannot be forced to assume jurisdiction it does not have. Reliance was placed on the decision of the Court in the case of Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR. It was contended that the 5th Respondent was functus officio. On prayer 10 that seeks mandatory injunction compelling the undertaking of a human rights due diligence exercise, it was submitted that this was being sought notwithstanding the absence of any statutory or constitutional duty requiring such action. 100.Nonetheless, it was argued that mandatory injunctions at an interlocutory stage are rarely issued, and only issue in the clearest of cases where the Court is given a high degree of assurance that the applicant’s case is unusually strong and straightforward, as seen in Locabail International Finance Ltd (supra). The motion is said to fall short of this threshold. Additional reliance was placed on the case of Mitu-Bell Welfare Society v Kenya Airports Authority & 3 Others [2021] KESC 34 (KLR). 6th Interested Party Submissions 101.The 6th Interested Party, through its advocates, Nderitu and Partners Advocates, filed submissions dated 21st May 2026. These submissions addressed two issues, whether by dint of Article 2(5) and (6) of the Constitution, the United Nations’ Guiding Principles on Business and Human Rights are applicable and enforceable in Kenya and whether by dint of Articles 3, 10, 21, 43 and 156(6) of the Constitution, the 2nd, 3rd, 4th and 5th Respondents are obligated to apply and enforce the United Nations’ Guiding Principles on Business and Human Rights. 102.Answering in the affirmative on the first issue, the 6th Interested Party submitted that Kenya, being a member of the United Nations, is bound by all UN conventions and treaties that it has ratified, such as the UN Guiding Principles on Business and Human Rights. Reiterating the averments in the Replying Affidavit, the 6th Interested Party submitted that these Principles form part of the body of general rules of international law, and having been domesticated, and by virtue of Article 2(5) of the Constitution, it follows that they form part of the laws of Kenya. 103.To support this claim, reliance was placed on Rono v Rono & Another- Civil Appeal No. 66 of 2002 (unreported) where it was held that even though Kenya subscribes to the common law view that international law is only part of domestic law where it has been specifically incorporated, current thinking on the common law theory is that both international customary law and treaty law can be applied by State Courts where there is no conflict with existing state law, even in the absence of implementing legislation. 104.Reliance was also placed in the case of Embassy of Sweden, Nairobi v Kusewa & another [2020] KECA 954 (KLR). 105.On the second issue, the 6th Interested Party, relying on the dictates of Articles 3 and 10 of the Constitution, submitted that these provisions bind all parties in this Petition in their application and interpretation of this Constitution and whenever any of them makes or implements public policy decisions. Referring to the National Action Plan on Businesses and Human Rights, it was submitted that the Plan acknowledges that State-based judicial and non-judicial mechanisms should be the primary avenue for victims of corporate abuses to access remedies. However, it was argued that this Plan is yet to be implemented, which is a gross failure on the part of the 3rd Respondent and the Executive without any justification. Owing to this failure, it was argued that victims of human rights abuses by private businesses are therefore entirely dependent on judicial mechanisms for redress. 106.To support this claim reliance was placed in Mitu-Bell Welfare Society (supra) where the Supreme Court guided that Article 20(5) of the Constitution empowers a court or tribunal, presiding over a dispute, in which the petitioners are claiming that the State, has either neglected, or failed in its responsibility to effectuate a socio-economic right, to demand evidence that would exonerate the latter from liability. Analysis and Determination 107.Owing to the fact that the 6th Respondent’s application dated 13th May 2026, the 1st Respondent’s objection to the mode of service upon it of the Petition, the Notice of Motion application and the court’s directions, premised on what the 1st Respondent saw as non-compliance with Order 5 Rule 22B of the Civil Procedure Rules, 2010, 5th Respondent Notice of Preliminary Objection, and the 7th Respondent's and 1st Interested Party’s grounds of opposition and the preliminary objection dated 13th May 2026 raise jurisdictional questions, that may if upheld result in the dismissal of the petition and the application in limine, I issued directions on 18th May 2026 to the effect that:-“The situation, therefore, calls for a balancing act, to wit, that both applications be heard together on the same date so that the court can deliver a consolidated ruling on both the jurisdictional and the merits aspects of the applications (where the court finds that it is seized of jurisdiction).” 108.This was necessitated by the need for the court to first ascertain whether it was clothed with jurisdiction to hear and determine the matter, and, in the Asahi Holding Ltd case, whether the court had acquired jurisdiction to hear a petition involving a foreign-incorporated body not domiciled in Kenya. As has been stated in a plethora of decisions of the superior courts, jurisdiction is everything; without it, a court has no power to make one more step, and must down its tools (see Owners of the Motor Vessel Lilian “S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR)). 109.The Supreme Court of Kenya has held that jurisdiction is not a mere procedural technicality, for it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings (see Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] KESC 8 (KLR). 110.Jurisdiction can be challenged on the basis that the court is debarred by the provision of the Constitution or written law from considering a matter before it, or on account of the said matter being res judicata, the res sub judice, or due to the fact that the court is already functus officio, having already expressed itself with finality on the issue in dispute. 111.Since the jurisdiction question was raised at the earliest opportunity, this court was under an obligation, in the words of Nyarangi, JA, in the Owners of Motor Vessel Lilian “S” case, to determine it right away, on the basis of the material before it, and render itself accordingly, so that in the event it is seized of jurisdiction, it would then consider, whether on the basis of the available evidence, there is a prima facie case for grant of conservatory reliefs. 112.With a view to doing so, the court will consider the objections raised by the 1st Respondent, the 7th Respondent and the 6th Respondent in turn. The objection raised by the 5th Respondent is similar to that of the 7th Respondent, and the determination of the latter will determine that of the 5th Respondent. 113.The 1st Respondent contends that the Petitioners did not seek leave, nor was any leave granted, in any event, to affect service, on Asahi Group Holdings Ltd, a Japanese Company, that is not domiciled nor carries on business in Kenya. It was urged that leave was necessary so that the court could assume jurisdiction and that, without such leave, Asahi wasn’t properly before the court; therefore, the suit against it is defective. In support of this proposition, reliance was placed on the decisions of the Court of Appeal in Raytheon Aircraft Credit Corporation & Another v Air-Al-Faraj Ltd [2005] KECA 312 (KLR) and Misnak International (UK) Ltd v 4MB Mining Ltd (C/o Ministry of Mining Juba, Republic of South Sudan & 3 Others [2019] KECA 471(KLR), both of which are Court of Appeal decisions made in respect of civil appeals. 114.The other decisions relied upon by the 1st Respondent are High Court decisions in respect of civil suits, before the Civil Division Family Division, to wit, Law Society of Kenya V Martin Day & 3 Others [2015] KEHC 1336 (KLR), Kipkorir KIRUI v Vuclip Inc & another 2023 (KEHC)24642 (KLR) and EK v PT [2024] KEHC 11722 (KLR). In all these decisions, objections grounded on non-compliance with Order 5 Rule 22 of the Civil Procedure Rules were upheld. The High Court decisions, however, having been made by courts with coordinate jurisdiction, are of persuasive authority. 115.There is no dispute that Asahi Group Holding Ltd is a Japanese company, domiciled in Japan, where it was incorporated and where it carries on business. Service was effected on it pursuant to the court’s directions, given the nature of the matter and the urgency attendant upon it. 116.Taking into account the fact that the matter before the court is a constitutional petition, should service have been effected under the Civil Procedure Rules? What Rules govern proceedings brought under Chapter 4 of the Constitution of Kenya, 2010? 117.In my view, the Rules that apply in respect of constitutional petition are the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedural Rules, 2013 (popularly called the Mutunga Rules). Constitutional petitions are sui generis proceedings. Civil Procedure Rules apply where there is a lacuna and, insofar as they aid access to justice, facilitate the just, expeditious, and proportional resolution of disputes, promote the values, purposes, and principles in the Constitution, advance the rule of law and the human rights and fundamental freedoms in the Bill of Rights. 118.My view is that whereas the Civil Procedure Rules are very helpful, where there is a lacuna, it is doubtful that there is a lacuna in this case. Rule 14 of the Mutunga Rules states that:“(1)The petitioner shall serve the respondent with the petition, documents and relevant annexures within 15 days of filing or such time as the court may direct.(2)Proof of service shall be the affidavit of service set out in Form B in the Schedule with such variations as may be necessary.” 119.In this case, the court made clear directions on service. Whereas it is the case that the 1st Respondent denies that service was proper and that the court has not properly assumed jurisdiction in its respect, there can be no denial that it is aware of these proceedings and that it has appointed counsel. I note that the impugned transaction is being consummated in Kenya and that the Capital Market Authority, a regulator of the capital markets in Kenya, has approved the pending application, while the Competition Authority of Kenya’s approval is pending. 120.In Constitutional Petition No.E299 of 2020; Offshore Trading Co Ltd v the AG & Another, JA Makau, J stated as follows:-Secondly, the matter pending before this court is a constitutional petition, in which the Civil Procedure Rules are not applicable in regard to filing constitutional petitions. The applicable law and procedure of filing constitutional petitions is provided for under the Mutunga Rules, which provides….” 121.Whereas the Raytheon decision was made by the Court of Appeal and ought to bind this Court, it is distinguishable for 2 reasons: firstly, it is a pre-2010 decision made before the constitution was promulgated. Secondly, it is made in respect of a Civil Appeal, and thus the Civil Procedure Rules were binding on the litigants. The Misnak decision, on the other hand, is distinguishable for the second reason above. 122.I am not persuaded that acceding to the submissions of the 1st Respondent would promote the constitutional values, advance the rule of law, human rights and fundamental freedoms. It can't be that Rules that may be applied to fill in lacunae in procedure have the effect of denying litigants whose rights and fundamental freedoms may have been infringed or breached their right of access to the Courts for the redress of their grievances. Having said that, I must point out that service was effected as directed by the court. I am not persuaded that the petitioners can be faulted for obeying court orders. 123.Having made the above decision, I will not consider whether the lack of leave is an inseverable defect on the part of the petitioners, rendering the entire petition incurably defective. 124.The preliminary objection of the 7th Respondent and the 1st Interested Party is dated 13th May 2026. The jurisdiction of the court is denied on the grounds that:-1.The issues forming the substratum of the petition are employment and labour relations matters and should have been raised in the Employment and Labour Relations Court;2.The allegations relating to sexual harassment are criminal matters over which this court lacks jurisdiction. In any case, the said matters are pending before the Chief Magistrate’s Court;3.That the court is debarred by the doctrine of constitutional avoidance as the matter in question falls squarely within a specialized statutory and regulatory framework for which parliament has prescribed adequate procedures;4.That the petition is also debarred on account of want of exhaustion of available remedies under section 9 of the Fair Administrative Action Act;5.That the unavailability of the Chairman of the Competition Tribunal cannot vest this court with jurisdiction, it lacks, to begin with; and6.That no cognizable cause of action has been shown. 125.Whereas this court has no jurisdiction to hear and determine employment and labour relations matters, I am not persuaded that the objection on this ground is well taken. The 2nd and 3rd petitioners do not allege that they were employees of any of the 6th or 7th Respondents or of the 1st Interested Party. There was no employer-employee relationship between them, the existence of which would make the Employment and Labour Relations Court the sole arbiter of the dispute between the parties. 126.This court is sitting as the High Court. Although the court has been administratively designated as the Constitutional and Human Rights Court, it remains a High Court with unlimited jurisdiction in civil and criminal matters, except for those matters falling within the jurisdiction of the Employment and Labour Relations Court and the Environment & Land Court. My reading of the petition is that it alleges violations of the Petitioners' human rights, particularly those of the 2nd and 3rd Petitioners. With respect to counsel, those are not issues the court below may presently consider. 127.The issues raised by the petitioners go beyond tortious claims and include prayers for a declaration that the United Nations Guiding Principles on Business and Human Rights are applicable in Kenya, and for an order that the Cabinet Secretary appoint a Chairman for the Competition Tribunal. Should this Court lay down its tools on the basis of the doctrine of constitutional avoidance? 128.The High Court, in the case of Council of County Governors v Attorney General & 12 others [2018] KEHC 9670 (KLR), expressed itself as follows:“59.The doctrine of avoidance is primarily viewed by courts from the position that, although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In that regard, the Supreme Court stated in Communication Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 others (supra) (at para 256) that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis.” 129.Similarly, the Court, in C O D & another v Nairobi City Water & Sewerage Co. Ltd [2015] KEHC 7762 (KLR, cited with approval the decision of the Supreme Court of India in the case of Re Application by Bahadur [1986] LRC (Const), where it was held that:“The Courts have said time and again that where infringements of rights are alleged which can be founded in a claim under substantive law, the proper course is to bring the claim under such law and not under the Constitution. This case highlights the un-wisdom of ignoring that advice.... The Constitution sets out to declare in general terms the fundamental concepts of justice and right that should guide and inform the law and the actions of men. While an infringement of the Constitution might in certain cases give rise to the redress provided for at section 14, yet, as has been proclaimed by the highest Court in the land, it is not “a general substitute for the normal procedures for invoking judicial control of administrative action.” (See Harrikissoon v A-G [1979] 3 WLR 62).” 130.I have carefully considered the issues raised by the Petitioners. In my view, and with respect to the 7th Respondent and the 1st Interested Party counsel, these are not the kind of issues that would be debarred by the doctrine of constitutional avoidance. 131.Although litigants must, under the Fair Administrative Actions Act, exhaust all available remedies, the doctrine of exhaustion is subject to certain exceptions. Section 9 (4) of the said Act allows the High Court to exempt a party from the obligation to exhaust available remedies. See the decisions of the Court of Appeal in Flour Investment Ltd v Commissioner of Domestic Taxes & another [2018] eKLR and Kenya Ports Authority v William Odhiambo Ramogi & 8 Others [2019] eKLR, where it was recognized that the doctrine of exhaustion was subject to exceptions in cases where the remedy was unavailable and impractical. 132.The Court in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR) observed as follows:“60.As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.61.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.62.In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.” 133.It would seem to me that the matter may not be determined by the Competition Tribunal as the said body presently lacks a chairman. That being the case, the available remedy is impractical and unavailable, and thus the doctrine of exhaustion does not apply. 134.By hearing the matter, this court would not be clothing itself with jurisdiction it lacks. 135.I will deal with the issue of sub judice below, as it is the subject of the application of the 6th Respondent. 136.In view of the foregoing, I am not persuaded that the preliminary objections raised by the 5th and 7th Respondents have merit. The same are dismissed. 137.The application of the 6th Respondent is dated 13th May 2026. The same seeks, in the main, to have the court find that the petition is res sub judice. The basis of the said contention is that there are matters currently pending in court between the parties, to wit, Milimani HCCCOMM No.E032 of 2026; Jilk Construction Co Ltd v Diageo PLC & 6 Others, and Nairobi HC Commercial Petition No.E029 of 2024; Kenya Breweries Ltd v Mutida Mutuku and 3 Others and the criminal matter. 138.Section 6 of the Civil Procedure Act states that:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.Explanation.—The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court. “ 139.The doctrine of the res subjudice prevents a court from trying concurrent causes between the same parties over the same subject matter. The court before which the last filed matter is extant must, under the doctrine, stay the same until the first filed identical matter is determined. For the case to be res sub judice, the following elements must exist.1.There must be a multiplicity of suits;2.The suit was filed after a previous suit;3.Both suits involve the same parties;4.The reliefs sought in the suit, and the previous one, must be directly substantially the same as those in the previous one; and5.The first court must have jurisdiction to hear and determine the matter before it. 140.The said doctrine was discussed by the Court in Kenya Bankers Association v Kenya Revenue Authority [2019] KEHC 12178 (KLR). The Court observed as follows:“30.The basic purpose and the underlying object of Section 6 is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the parties to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to prevent multiplicity of proceedings.…34.For the doctrine of sub judice to apply the following principles ought to be present:- (a) There must exist two or more suits filed consecutively; (b) The matter in issue in the suits or proceedings must be directly and substantially the same, the parties in the suits or proceedings must be the same or must be parties under whom they or any of them claim and they must be litigating under the same title, the suits must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 141.I have carefully considered the three named matters. In my view, the three matters relate to different causes of action and are not between the same parties. The remedies sought in this petition are grounded in the Bill of Rights and the rights and fundamental freedoms therein. 142.On the basis of the foregoing, I am not persuaded that the petition is res subjudice. 143.In the circumstances, I find and hold that the Notice of Motion dated 13th May 2026 has no merit. It is dismissed. 144.Having dismissed the application and the respondents’ objections, I must now determine whether there is a case for the issuance of conservatory orders. The Notice of Motion dated 8th May 2026 contains 12 prayers, one of which, the 1st, is spent, while the 11th is for orders as to costs. Prayer 12 is the boilerplate prayer, seeking that the Court issue “any other orders it may deem as just and expedient.” Prayers 2, 3, 4, and 5 seek to prevent the conclusion of the share sale transaction between the 1st Respondent and the 6th Respondent regarding the latter’s holding in the 7th Respondent. 145.Prayers 6 to 9 address the lacuna at the Competition Tribunal. They seek to compel the appointment of a Chairman of the Tribunal (prayer 6), to prohibit the 5th Respondent from approving the share transfer between the 6th Respondent and the 1st Respondent (prayer 7), and to compel the 5th Respondent to hear and determine its grievance against the share transfer transaction as set out in the 1st Petitioner’s complaint (prayers 8 and 9). It would appear to me that prayer 8 seeks to have this Court consider the complaint in lieu of the Competition Tribunal. 146.Prayer 10 seeks to compel the Attorney General to ensure that the 1st to 6th Respondents have conducted a human rights due diligence in accordance with the United Nations Guiding Principles on Business and Human Rights. 147.The Petitioners submit that if the intended transfer proceeds, the substratum of the petition and other rights to pursue appropriate remedies before the prescribed Tribunal will be fundamentally altered, rendering the petition nugatory. The petitioners fear that the completion of the impugned transaction will create what they see as irreversible corporate control and market consequences that may not be effectively remedied after the fact. 148.They further contended that under Articles 2, 21, and 156(6) of the Constitution of Kenya, the state and its regulatory authorities have Constitutional obligations to apply and enforce the UN Guiding Principles on Business and Human Rights and to ensure due compliance by businesses. 149.It is evident that the dispute stems from the construction of a brewery in Kisumu. The relevant contract was between the 1st Interested Party, a subsidiary of the 7th Respondent. The 7th Respondent, in turn, is controlled by the 6th Respondent, a multinational corporation with global operations. The petitioners contend that although the contract was between the 1st Petitioner and the 1st Interested Party, the project was largely undertaken by personnel, consultants and representatives associated with the 6th Respondent and its corporate affiliates. 150.The petitioners aver in the petition that some employees of the 1st petitioner were subjected to acts and conduct amounting to sexual harassment by certain officials and or representatives associated with the 6th & 7th Respondents and 1st Interested Party, and that no effective action was taken nor did the 6th and 7th Respondents address the grievances in any other way. 151.It was stated that the petitioners approached the 5th Respondent for redress once the proposed transaction was raised, but that grievances were not redressed as the Competition Tribunal currently lacks a chairperson. 152.Having stated as above, I now turn to the merits of the application. The Supreme Court in the case of Gatirau Peter Munya v Dickson Mwenda Githinji & 2 Others [2014] eKLR held that conservatory orders may be granted on the inherent merits of the case, bearing in mind the public interest, constitutional values, and the proportionate magnitude and priority of the relevant causes. 153.In Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR), the Court stated that:“25.Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders, he is likely to suffer prejudice….26.It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order; rather, there must also be evidence of a likelihood of success. The prima facie case ought to be beyond a speculative basis….28.Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights….29.Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice….30.The fourth principle, which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya v Dickson Mwenda Githinji & 2 Others [2014] eKLR, is that the court must consider conservatory orders also in the face of the public interest dogma.31.Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the prima facie correctness of the availed information, whether the grievances are genuine legitimate and deserving and finally whether the grievances and allegations are grave and serious or merely vague and reckless.” 154.I must thus determine if there is a prima facie case with a probability of success. 155.Although the issues raised by the Petitioners are weighty, as urged by counsel for the Attorney General, I note that the Petitioners do not claim any interest in the shares subject to the impugned transaction. They make no claim for payment arising from that transaction. During the course of the hearing, counsel for the Petitioners submitted that there are arbitral proceedings and litigation in the Commercial Division of the High Court, which he adverted would lead to payment in due course. Since the reliefs are largely declaratory in nature, it is not clear to me that not granting the orders sought would be fatal to their case. 156.It would seem to me purely upon considering this matter as a prima facie basis, that the remedies sought qua the 5th Respondent may not apply. The 5th Respondent made its decision on 18th February 2026. No appeal to the Competition Tribunal was made. Although, as admitted by counsel for the 5th Respondent, the Competition Tribunal has no chairman and may not consider matters, the secretariat of the Tribunal does, in fact, exist, and it would have been possible to file an appeal while the appointment of the chairperson is awaited. It was therefore open for the Petitioners to file the reference within the stipulated period. As things stand, even if the chairman were appointed now, the reference would appear to me to be time-barred. 157.I am of the same view as Mwamuye, J, in Bia Tosha Distributors v Kenya Breweries Limited & 4 others [2026] KEHC 4798 (KLR) that no nexus has been shown between the impugned transaction and the petition now before the Court. 158.It has been submitted that the UN Guiding Principles on Business and Human Rights have the force of law in Kenya under Articles 2(5) and (6) and 21(4) of the Constitution. I am not persuaded at the outset that the same are general rules of international law, nor are they treaties or conventions which Kenya has ratified. In essence, they are soft law. 159.In Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others [2021] KESC 34 (KLR), the Supreme Court held that:“There exists considerable literature regarding the effect of UN Resolutions, Declarations, Comments, and Guidelines and their norm-generating quality in international law. The consensus emerging from such discourse is that, generally speaking, such resolutions, declarations, and comments do not ordinarily amount to norms of international law. At best, they constitute what is called in international jurisprudence, Soft Law. However, it is also accepted that certain UN General Assembly Declarations and Resolutions can ripen into a norm or norms of customary international law, depending on their nature and history leading to their adoption.” 160.The petitioners aver that unless conservatory orders are granted, the petition will be rendered nugatory. I note, however, that the 7th Respondent will remain in existence, as will the 1st Interested party. It has not been shown that the 6th Respondent will cease to exist. It is a large corporation that is dual-listed in London and New York. The 1st Respondent will, if the transaction is approved, be the main shareholder of the 7th Respondent and thus subject to this Court’s jurisdiction. Any remedy granted by this Court will remain enforceable. I must add, qua the 6th Respondent, there is, in fact, legislation, to wit, the Foreign Judgments (Reciprocal Enforcement) Act, that will serve the interests of the petitioners and ensure that Diageo won't escape justice in the event that it is found culpable, after this matter is heard and determined on the merits. 161.I must also add that the Petitioners have other remedies. English courts hear and determine cases founded on the Parent Company doctrine in which breaches of human rights are alleged to have been committed by foreign subsidiaries of British companies. See the cases of Vedanta Resources PLC v Lungowe [2019] UKSC 20 and Okpabi & others v Royal Dutch Shell and another [2021] UKSC 3. 162.Similarly, the remedies sought against the Attorney General and the Cabinet Secretary for Finance will still be available even if the transaction proceeds. 163.In my view, the public interest favours the conclusion of the transaction. The transaction shall have a significant impact on public finance. 164.In view of the foregoing, I am not persuaded that a case has been made for the issuance of conservatory orders; consequently, the application dated 8th May 2026 is dismissed. In view of the nature of the matter, the parties shall bear their own costs of the application. 165.In the interests of justice, the hearing of the Petition shall be fast-tracked. 166.It is so ordered DATED AND SIGNED IN NAIROBI, THIS 17TH DAY OF JUNE 2026.GREGORY MUTAIJUDGEIn the presence of:Mr Kibe Mungai and Ms Mosongo, for the Petitioners;Mr Walter Amoko and Mr Elly Obegi, for the 1st Respondent;Mr Weche, for the 2nd and 3rd Respondents;Mr Ouma, holding brief for Mr Githendu, for the 4th Respondent;Ms Brenda Terry, holding brief for Mr Mukofu, for the 5th Respondent;Mr Njoroge Regeru, SC, Mr Thuo, Ms Mutinda and Ms Mathangani for the 6th Respondent;Mr Kamau Karori, SC and Ms Odari for the 7th Respondent and 1st Interested Party;Mr Wilfred Nderitu, SC, with Mr Wycliffe Oyoo, Mr Wambugu Wanjohi, Ms Wangari Kagai, Mr Jared Gakombe and Mr Boniface Were for the 6th Interested Party; andMs Kalondu – Court Assistant.Constitutional Petition No. E249 of 2016 – Ruling Page 1 of 19 Mutai, J