A case file by Naivasha-based Keroche Breweries agents have dealt a blow after a High Court dismissal.

Beer distributors allied to Naivasha-based Keroche breweries filed a case against East African Breweries Ltd 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 addressed the competition supervisor to conclude investigations within 120 days. He explained that the CAK has the knowledge, expertise and powers to carry out professional investigations. This will enable the court to make informed decision on the matter.

“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.

The 6 beer distributors accused EABL of buying bottles with universal shape and modifying them with their unique logos. In the process, they limit production and market access by other beer makers who use the same bottles. Part of the accusation was EABL had an aim of phasing out Keroche out of the market.

The fight has interfered with the flow and return of bottles from the companies who use the 500ml brown euro bottle.