The High Court has declined to strike out pleadings filed by a local contractor’s lawyer who practised without a valid practising certificate in litigation linked to British multinational Diageo’s planned Sh303 billion sale of its entire 65 percent stake in East African Breweries Plc (EABL).
At the same time, the court rejected contractor Jilk Construction Ltd’s bid to disqualify its former advocate, Mohammed Muigai LLP, from representing EABL over alleged conflict of interest in the dispute.
In separate rulings that left both legal teams intact in the ongoing corporate dispute, the court held that advocates should only be barred where a real conflict of interest is proven, and that clients should not lose their cases because their lawyers failed to hold valid practising certificates.
The court declined to strike out pleadings filed by Jilk Construction’s lawyer, Kibe Mungai, despite finding he practised without a valid certificate for more than two months. Instead, it barred the advocate from recovering legal costs for work undertaken between January 1 and March 10, 2026, when he lacked a valid practising certificate.
Justice Francis Gikonyo also dismissed separate applications by Diageo and Kenya Breweries Limited (KBL) seeking broader sanctions against the advocate, including expunging court documents and barring him from appearing before the court.
The rulings keep alive litigation surrounding the sale of Diageo’s 65 percent stake in EABL. The British multinational is also selling its 53.68 percent ownership in spirits maker UDV Kenya to Asahi, with the two transactions valued at about Sh387 billion.
Jilk is challenging the EABL transaction while pursuing about Sh3.4 billion in claims arising from refurbishment contracts at Kenya Breweries Limited’s Kisumu brewery awarded between 2017 and 2019, saying the proposed share sale should not overtake its pending arbitration, constitutional and commercial disputes.
KBL is a subsidiary of EABL. The litigation has expanded beyond arbitration into constitutional, commercial, competition and criminal proceedings while intersecting with legal challenges to Diageo’s planned sale of its Kenyan interests to Asahi Group Holdings.
Diageo had argued that Jilk’s lawyer, Mr Kibe, acted as an unqualified person because he did not obtain his 2026 practising certificate until March 11. The company asked the court to declare his conduct contemptuous, expunge documents filed during the period and deny him audience until costs were paid.
The judge agreed that the advocate practised without a valid certificate between January 1 and March 10 after reviewing evidence from the Law Society of Kenya and Mr Kibe’s own explanations regarding delays linked to the society’s upgraded electronic licensing system.
However, the court held that the omission did not invalidate documents or proceedings undertaken for the client.
“No instrument or document… becomes invalid… only by dint of its having been prepared by an advocate who at the time was not holding a current practising certificate,” Justice Gikonyo said.
The judge added that the Advocates Act expressly preserves the validity of pleadings, affidavits and other legal documents prepared by advocates without practising certificates.
He also extended that reasoning to courtroom appearances. “Appearance as part of proceeding… is saved and is not invalid,” the judge said, adding that any misconduct should instead attract sanctions against the advocate rather than deprive litigants of their cases.
In another ruling, Justice Gikonyo dismissed Jilk’s application seeking to remove Mohammed Muigai LLP from representing EABL.
Jilk argued that the law firm previously advised it during arbitration arising from the Kisumu brewery project and therefore possessed confidential information.
The court found no evidence of actual prejudice or conflict. “Where a party asserts that conflict of interest exists, he must provide sufficient evidence,” the ruling states. The court held that Jilk failed to demonstrate “real mischief or real prejudice” that would justify restricting EABL’s choice of lawyers.
The court also rejected KBL’s application to cite Jilk for contempt over letters sent to the Competition Authority of Kenya and the Director of Public Prosecutions.
Justice Gikonyo held that the letters “were issued for different purposes altogether” and “did not amount to fragmentation or duplication of proceedings”.
He similarly declined to halt related criminal proceedings, saying concurrent constitutional and criminal cases are permissible unless shown to be abusive or unlawful.
At the same time, the court refused Jilk’s application to lift conservatory orders suspending publication of the arbitral award arising from the Kisumu brewery dispute, leaving the award on hold while constitutional questions are determined.
The wider dispute stems from construction works undertaken at Kenya Breweries’ Kisumu brewery before expanding into arbitration, constitutional litigation, commercial claims, regulatory complaints and criminal proceedings.
It has since become intertwined with separate challenges seeking to stop Diageo’s proposed $2.3 billion exit from EABL and the transfer of its controlling stake to Asahi Group. Diageo announced the sale in December 2025 as part of a global strategy to streamline its portfolio and reduce debt.
The acquisition would give Asahi control of Diageo Kenya, EABL and Diageo’s majority stake in UDV Kenya, subject to regulatory approvals.
