The explosive debate triggered by Senior Counsel Ahmednasir Abdullahi’s recent, no-holds-barred remarks—that the multi-billion-shilling EABL-Asahi deal will continue to face roadblocks in the courts unless a bribe is paid—has blown the lid off a conversation that extends far beyond the boardroom of the Ruaraka-based brewer.
At stake is a much broader, and perhaps terrifying question for the Kenyan economy: Is our legal system still capable of guaranteeing certainty in high-value commercial transactions, or has prolonged litigation become an extortion tool for cartels to frustrate mega-deals long after the core issues have been litigated?
A Deal That Refuses to Move On
The proposed Sh340 billion acquisition of East African Breweries Plc (EABL) by Japan’s Asahi Group Holdings is easily one of the largest corporate transactions in Kenya’s history.
Yet, instead of being celebrated as a landmark Foreign Direct Investment (FDI) that will inject billions into the Exchequer, the deal has increasingly become synonymous with a merry-go-round of court applications, midnight injunctions, and orchestrated legal roadblocks.
The concern in corporate circles is not that aggrieved parties are exercising their constitutional right to seek justice. That right is sacred under Article 48. The real elephant in the room is whether a transaction can ever achieve finality if new, often proxy, challenges mysteriously crop up in different court stations the moment coordinate courts throw out earlier objections.
The “Grand Mullah’s” Provocative Jab
Taking to his X (formerly Twitter) account, the outspoken lawyer—popularly known as the ‘Grand Mullah’—struck a raw nerve because he touched on a frustration many foreign investors only whisper about. He boldly claimed that the endless litigation stopping the deal means “some people can’t let a deal worth Kshs 340b pass without their cut… this is Kenya bwana… lipa pesa.”
His open admission that rent-seeking and bribery have become the primary motivations for commercial litigation sets Kenya’s investment profile back by decades. When major deals become trapped in recurring litigation, questions naturally arise about whether the legal process is being used to genuinely resolve disputes, or whether the delay itself is a calculated shakedown strategy.
Whether one agrees with his blunt assessment is beside the point. The mere fact that such damning indictments are being openly canvassed by senior members of the legal fraternity should send shivers down the spine of anyone interested in Kenya’s economic growth.
Justice Mong’are Under the Spotlight
The controversy has inevitably drawn sharp attention to the Judiciary, with Justice Josephine Mong’are becoming a subject of intense public debate among sections of the legal fraternity.
Former Law Society of Kenya (LSK) President Nelson Havi has been among the prominent voices publicly questioning her continued service on the bench, calling for greater scrutiny of matters associated with her court.
In the EABL-Asahi saga, Justice Mong’are pulled an absolute shocker by slapping an ex-parte injunction on the transaction from Machakos, for a matter whose primary actors and previous adjudications were firmly anchored at the Milimani Law Courts in Nairobi. To many legal observers, this glaring instance of “forum shopping” gives off the foul stench of vested interests.
The Heavy Cost of Endless Uncertainty
Investors are resilient; they can tolerate commercial risks and normal legal disputes. What they obviously have a problem tolerating is uncertainty without end.
Every engineered delay, ex-parte injunction, and procedural ambush sends a chilling signal to the global market. Fairly or unfairly, prolonged uncertainty creates the damaging impression that major transactions in Kenya are perpetually vulnerable to endless disruption by proxy litigants.
That is a perception the country’s struggling economy simply cannot afford. The EABL–Asahi saga should prompt a candid, sector-wide conversation about how Kenya balances the right of access to justice with the absolute necessity for commercial certainty. A modern, industrialising economy requires both, and neither should come at the expense of the other.
