Keroche Breweries have suffered a blow after the High Court dismissed a case they had filed against East African Breweries Ltd (EABL) for allegedly harassing them over beer bottles.
Justice Alfred Mabeya upheld an objection filed by the Competition Authority of Kenya (CAK), saying the dispute should have been referred to the regulator first, before appealing to the High Court.
“Accordingly, I uphold the preliminary objection and strike out the application and plaint. I direct that the third defendant (CAK) to continue with the process it had commenced in respect of the complaint touching on the complaint herein and deal with it as per the law provided,” said the judge.
He directed the competition watchdog to conclude investigations within 120 days.
According to the judge, the CAK has the expertise and powers to undertake full and professional investigations. He said the evidence gathered will enable the court on appeal, to make an informed decision unlike where a party directly heads to court as the first point of call.
“The reason why the doctrine of exhaustion is held in deference is because of the right to access to justice. First, it promotes alternative dispute resolution mechanisms. Secondly, it reduces the litigation in our courts and thirdly it affords the parties an additional layer of a forum where the parties can air their grievances.
That expands the right to access to justice,” said Justice Mabeya.
Six beer distributors had accused EABL of buying bottles, which have a universal shape and embossing them with their unique logos with a view of limiting production and market access by other beer makers, who use the same shape of containers for their products.
Alexander Mugo, Jacob Wamiti, Phasty Wanjitu Wachira, Samuel Kamau, Catherine Wanjiru and Herman Mwaura said they had invested millions of shillings in setting up the distribution business and acquiring trade licences.
While saying it was their only source of income, the distributors accused EABL and Kenya Breweries Limited of engaging in acts aimed at phasing Keroche out of the market.
They said the fight between the two beer makers has interfered with the flow and return of beer bottles from companies who use the 500ml brown euro bottle.
The two companies have been at loggerheads over the use of euro beer bottles with EABL they should not be barred to collect the bottles engraved with its mark, from the market.
Another case over the beer bottles is pending before the High Court.
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