Ngong Matonyok Wholesalers Ltd & another v Kenya Breweries Ltd & 4 others
The bottom line
#Kenya's Court of Appeal refused to protect two distributors' business agreements, ruling that money can compensate their claimed losses, so no injunction was granted.
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 intended appeal is arguable
- 2.Whether the appeal will be rendered nugatory unless the injunction and stay orders sought are granted
Key legal issues
#Arguability of the intended appeal
The intended appeal is arguable because the draft memorandum raises bona fide issues on the compatibility of the High Court contempt findings with the Supreme Court's clarification ruling
The Court perused the draft memorandum of appeal and found it raised issues whether the High Court's contempt findings were incompatible with the Supreme Court ruling of 26th May 2023, whether reliance on the 2016 conservatory orders was erroneous, and whether exclusive distributorship rights were lawful. It concluded the appeal was not frivolous.
Whether the appeal would be rendered nugatory without the orders
The nugatory limb failed: the alleged loss turns on substantive issues pending in the High Court and is quantifiable and compensable in money by the 1st to 4th respondents
The appeal is interlocutory on an injunction, yet the losses alleged (termination of distributorship) depend on substantive issues still pending before the High Court, where the Supreme Court directed exclusivity and contempt issues be determined. The commercial relationship means any loss can be adequately compensated in monetary terms.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory unless the orders are granted
- An arguable appeal need not ultimately succeed; it suffices that it raises at least one bona fide issue deserving full consideration
- Nugatory-ness turns on whether what is sought to be stayed is reversible, or if not, whether damages will reasonably compensate the aggrieved party
Court orders
#- 1.The Notice of Motion dated 25th March 2025 is dismissed
- 2.The applicants shall pay the 5th respondent the costs of the Motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Commercial Civil Suit No. E127 of 2023
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (injunction and stay of execution pending appeal)
Relief refused
#Injunction restraining termination, rescission, suspension or adverse alteration of the distributorship agreements pending appeal
Appeal arguable but nugatory limb not satisfied; loss is compensable and issues pending before the High Court
Stay of execution of the High Court costs order pending appeal
Both limbs of rule 5(2)(b) were required and the nugatory limb failed
Costs
The applicants shall pay the 5th respondent the costs of the Motion
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.
the applicant must demonstrate, first, that the intended appeal is arguable, and secondly, that unless the orders sought are granted, the appeal will be rendered nugatory
an arguable appeal is not one that must ultimately succeed, but one that raises at least a single bona fide issue that deserves full consideration on appeal
Since the applicants were required to satisfy both limbs and have not, the Notice of Motion dated 25th March 2025 is accordingly dismissed, and the applicants shall pay the 5th respondent the costs of the Motion.
Orders accordingly.
Issues in the judgment
#The judgment gives the Supreme Court clarification ruling date as 23rd May 2023 in one passage and 26th May 2023 in others
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngong Matonyok Wholesalers Ltd & another v Kenya Breweries Ltd & 4 others", Case Analysis (2025). Civil Application E200 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2267/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.