Bia Tosha vs EABL: Unpacking the Issues Behind the Dispute

Today, the High Court dismissed Bia Tosha’s application to halt the proposed Diageo–Asahi transaction. While the court stated that its full ruling will be posted on Monday—leaving observers waiting with bated breath to review the exact legal reasoning—this latest development brings the foundation of the underlying dispute back into sharp focus.

The dispute between Bia Tosha Distributors Limited and East African Breweries Limited has attracted sustained public attention. Much of the commentary has adopted a familiar framing, presenting the matter as a contest between a local distributor and a large corporate entity. That framing is understandable, but it risks obscuring the legal character of the issues now before the court.

From a legal standpoint, the first and most important question is one of classification. What, in law, is this dispute really about? Is it a claim grounded in the alleged violation of constitutional rights, or does it arise from a commercial relationship governed by contract?

This is not a technical side issue. It determines the court that should properly handle the dispute, the principles that apply, the remedies that can be granted, and ultimately the outcome.

A useful way to think about it is this: if two parties have a written business arrangement, the court normally starts with the documents. It asks what was agreed, what rights were granted, what limits were accepted, and what happens when the relationship ends or changes. It does not usually begin by treating the dispute as if it were a constitutional struggle over property or liberty.

A review of the material placed before the court suggests that the relationship between the parties was neither incidental nor informal. It was structured, long term, and embedded within a defined distribution system. The record indicates that the principal behind Bia Tosha, Mr Peter Burugu, had extensive prior involvement within the same distribution ecosystem, including senior roles that provided insight into how that system operated.

In legal analysis, such facts are not peripheral. They matter because they speak to the commercial sophistication of the parties. They go to whether the agreements entered into were informed and deliberate business choices, rather than arrangements stumbled into by an unsophisticated party unaware of their consequences.

The distribution framework itself is also relevant. According to the court record, the distribution of products is carried out through a structured national system involving a broad network of appointed distributors. That point is important for non-lawyers: a manufacturer’s route-to-market is not ordinarily run by constitutional pronouncement. It is run by agreements, commercial terms, logistics, performance standards and operating documents. If a company distributes through many different appointed distributors, its distribution map cannot realistically be fixed forever by a single court order divorced from the underlying contracts.

That helps explain why this litigation has become so difficult to administer. Once a commercial distribution issue is moved into the language of constitutional rights, the court is asked to do something very hard: to supervise a living business system as if it were a static constitutional entitlement. A distribution network changes with customers, routes, product mix, geography, market demand and commercial reality. Contracts can account for those things. A constitutional status quo order tied to a historical date often cannot.

This is why the legal character of the case matters so much. If the dispute is contractual, then the answers are likely to be found in agreements, letters, invoices, maps, and the conduct of the parties over time. If it is constitutional, the court is invited to do something much larger: to convert a commercial relationship into a question of protected rights and public-law remedies. That is a far more dramatic move.

The distribution system described in the record was governed by formal agreements and preceded by defined processes, including selection, assessment and ongoing performance arrangements. Rights and obligations were not floating or informal. They were set out in writing, negotiated in a commercial context, and subject to defined terms.

That matters because courts are generally slow to depart from the terms of a bargain freely entered into, unless there is evidence of fraud, coercion, illegality, or some other recognised legal basis for doing so. The exercise is not one of sympathy or public mood. It is one of interpretation: what did the parties agree, and what did they not agree?

It is against that framework that the present dispute must be examined.

The petition invokes a range of constitutional provisions. That is a significant step, and one that carries implications beyond the immediate parties. But even then, the court must still decide whether the underlying dispute remains, in substance, a commercial disagreement arising from contract.

That inquiry is not merely abstract. It goes to the proper line between private law and constitutional adjudication. Put simply: not every hard commercial dispute becomes a constitutional case just because the pleadings say so. Sometimes a contract dispute remains a contract dispute, even when it is wrapped in the language of rights.

For those following the matter outside the courtroom, one point is worth bearing in mind. Courts do not decide cases on narrative momentum. They decide them on evidence and legal principle.

In this case, that evidence consists of agreements, correspondence, invoices, internal commercial conduct, and the behaviour of the parties over time. It is those materials, not the loudest public storyline, that will determine how the court understands the relationship and the rights arising from it.

At this stage, no final determination has been made. It would therefore be premature to claim certainty. What can be said, however, is that the public characterisation of the dispute does not appear to fully reflect the legal structure within which the parties operated.

A careful reading of the record suggests a more complicated picture. It is one that turns less on broad assertions of dispossession and more on the exact terms of commercial engagement, the architecture of a national distribution system, and the difficulty of using constitutional process to manage what may ultimately be a private-law disagreement.

That is where the analysis properly begins.

By Wakili Makamu Mutua