UDV (Kenya) Limited v Bia Tosha Distributors Limited & 3 others (Civil Application E165 of 2025) [2025] KECA 1862 (KLR)
The bottom line
#Kenya's Court of Appeal paused High Court contempt proceedings against UDV (Kenya), confirming that no one can be punished for contempt before first being heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has an arguable appeal against the High Court ruling of 4th March 2025
- 2.Whether, absent stay, the appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
Yes. The High Court ruling of 4th March 2025 was made in error in light of the Supreme Court's Clarification Ruling of 26th May 2023 and the consent order of this Court; the unresolved question of the effect of Ong'udi J's ruling of 28th April 2023 can only be determined on full consideration on appeal.
The Court found it common ground that the learned Judge acted in error by holding the applicant had to purge contempt before audience. The applicant had an application pending to clarify the orders of 29th June 2016, and Ong'udi J. had held the orders should be clarified before the contempt application was heard. Whether the Supreme Court Clarification Ruling altered Ong'udi J's ruling is a matter for full argument on appeal, establishing arguability.
Whether the appeal would be rendered nugatory absent stay
Yes. If the ruling stands, the applicant would be denied audience and potentially condemned unheard, with contempt findings attracting penal consequences affecting liberty and property.
The impugned ruling denies the applicant audience until it purges contempt, yet it has not been heard on the contempt application. Proceeding without hearing it would violate its right to be heard, and a contempt finding carries penal consequences touching liberty and property, rendering the appeal nugatory if the orders are not granted.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy two principles: an arguable appeal and that the appeal will be rendered nugatory absent stay.
- An alleged contemnor cannot be denied audience before being heard on and adjudged to be in contempt.
Court orders
#- 1.Stay of the ruling and orders of the High Court (Mugambi, J.) dated 4th March 2025 in Constitutional Petition No. 249 of 2016 pending the intended appeal
- 2.Stay of further proceedings in the said petition pending hearing and determination of the intended appeal
- 3.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi High Court Constitutional Petition No. 249 of 2016 - Bia Tosha Distributors Limited v Kenya Breweries Limited and Others
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is settled that an applicant seeking orders of stay of execution under rule 5(2)(b) must satisfy this Court on two principles: that it has an arguable appeal and, absent stay, the appeal, if successful shall be rendered nugatory
we take the view that the applicant is correct in arguing that this holding effectively denies it audience (as an alleged contemnor) before it has been heard and adjudged to be in contempt
We are, therefore, satisfied that the application dated 13th March 2025 is merited, and we hereby grant the orders sought therein.
The costs of the application shall abide the outcome of the intended appeal.
Issues in the judgment
#The judgment refers to the applicant's right to freedom of movement under 'article 39', but Article 39 of the Constitution concerns citizenship; freedom of movement is under Article 39 of the Bill of Rights as mistakenly cited by the applicant - apparent miscitation in the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "UDV (Kenya) Limited v Bia Tosha Distributors Limited & 3 others (Civil Application E165 of 2025) [2025] KECA 1862 (KLR)", Case Analysis (2025). Application dated 13th March 2025 (in intended appeal from Nairobi High Court Constitutional Petition No. 249 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1862/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.