A top lawyer is fighting claims that he was induced by East Africa Breweries Limited (EABL) to withdraw at the last minute from a suit where a businessman sought the jailing of the brewer’s executives over a multi-billion shilling distributorship deal.
Bia Tosha has accused senior counsel Waweru Gatonye of having been influenced by EABL in 2016 to pull out from the suit five minutes before its hearing in court, causing the case to collapse and grounding its distributorship business.
The beer distributor is demanding a refund of Sh3 million as well as damages for the alleged loss.
But Mr Gatonye has dismissed the allegations of a conspiracy between him and EABL to defeat the contempt of court case Bia Tosha had filed against the brewer.
The firm had hired the lawyer to represent it in a contempt suit where the distributor sought the punishment of EABL executives for being in breach of a High Court order that directed the brewer to allow Bia Tosha to sell beer on 22 routes.
EABL had been locked in a legal fight with its largest supplier, Bia Tosha, over the brewer’s decision to end the latter’s exclusive right to distribute beer on the routes.
Bia Tosha reckons that Mr Gatonye’s reluctance to press with contempt in part led to the collapse of the distributorship business—which at its peak accounted for 12 percent of EABL sales.
“The defendant entered into a corrupt and criminal scheme with Kenya Breweries Limited in typical fashion employed by Kenya Breweries Limited in protecting its monopolistic dominance,” says Bia Tosha in court documents.
“Failure to press on with the contempt proceedings had a direct consequence upon the plaintiff’s entire business which was immediately grounded.”
The Court of Appeal last year overturned a High Court ruling of 2016 that barred EABL from tapping other firms to serve the 22 routes and also ordered the brewer to continue working with Bia Tosha.
Mr Gatonye has denied having been influenced by EABL, arguing that the claims were meant to hurt his reputation and integrity as an advocate of 45-years.
“No evidence is proffered in support of this extremely serious allegation. The standard of proof of the alleged criminal conduct on my part is beyond reasonable doubt and yet the plaintiff has not attempted to attain this high threshold,” Mr Gatonye told the court while pushing for the suit to be dismissed.
The suit was mentioned yesterday before a deputy registrar, who directed the matter be handled by a judge on duty— one who serves when others are on Christmas leave– given its urgency.
Bia Tosha managing director Anne Marie Burugu claims Mr Gatonye, as the firm’s lead lawyer in the case against EABL, was given an advance payment of Sh3 million, which she wants refunded.
She claims that Mr Gatonye dropped out of the case five minutes to the hearing, a move she argues amounts to a “serious case of a criminal conspiracy to defeat and pervert the course of justice.”
The contempt case was be heard on October 10, 2016, at 9 a.m. and Mr Gatonye allegedly informed the Bia Tosha team at 8.55 a.m. that he was pulling out from the suit and immediately left the court premises.
“Without the client files, legal authorities and court brief, the Plaintiff’s counsel on record was totally immobilised and disabled. Unable to prosecute the contempt application, the matter was adjourned,” Ms Burugu says in a sworn affidavit.
Mr Gatonye has defended himself saying the claims that he walked out of the case are false and have no basis because most parties were not ready or had not been served with the contempt proceedings.
“I have duly earned the Sh3 million and is entitled to additional fees as the lead counsel for the extensive services I rendered to the company,” he says in response to the case.
His advice to Bia Tosha to drop the contempt suit and seek an out-of-court settlement, he says, is supported by the law, which allows for alternative dispute resolution.
The lawyer reckons that he felt the case had been filed in the wrong forum and that there were no prospects of success because the distributorship agreement called for arbitration in the event of a dispute
Mr Gatonye says the Court of Appeal ruled the distributorship row be referred to arbitration, which vindicated his advice.