The Supreme Court has struck out an appeal by Heineken East Africa Import Company Limited challenging a decision by the Court of appeal awarding Maxam Limited Sh 1.7 billion for loss of business.
Supreme Court judges Martha Koome, Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala and Njoki Ndung’u rules allowed an application by Maxam challenging the Superior Court jurisdiction to hear the matter.
“The Notice of Motion application dated 1st June, 2024 and filed on 13th June, 2024 is hereby struck out for want of jurisdiction,” the judges ruled.
Through lawyer Philip Nyachoti, Maxam Limited argued that lacked jurisdiction to entertain the petition of appeal by Heineken E.A as it was fatally incompetent.
Nyachoti argued that the petition was not grounded on Article 164(4)(a) and (b) of the constitution and that the court lacked the requisite jurisdiction to adjudicate over the petition.
Nyachoti submitted that since the judgement of the court of appeal delivered on 24th May 2024 was not grounded on an interpretation and application of any specific constitutional provisions, the petitioner had no automatic right of appeal under article 163 (4)(a) of the constitution.
“It is trite law the jurisdictional foundation of a court is the groundnorm of the court’s powers and functions,” Nyachoti told the court.
The court heard that an appeal from the Court of Appeal to the Supreme Court that is not grounded on genuine grievances that the lower court misapplied or misinterpreted a specific constitutional provision simply means that the Supreme Court lacks the requisite constitutional jurisdiction to hear the matter.
In May 2013, Maxam Limited was appointed by Heineken E.A as the sole exclusive distributor of Heineken Lager beer in Kenya.
The said agreement would be effective for three years and would automatically be extended for a period of one year and subsequent one year periods unless terminated by either party giving the other written notice of termination within three months of the third anniversary of the effective date or one year extension as the case may be.
However, in January 2016, Heineken, without any justifiable cause or reason whatsoever, issued a purported termination notice in respect of the said agreement in blatant breach of the implied and express terms and conditions agreed by the parties and also contrary to the law.
Consequently, Maxam sued Heineken and obtained judgement in its favor.
Aggrieved by the said judgement, Heineken appealed the High Court judgement.
The Court of Appeal affirmed and upheld the award by the High Court to Maxam Limited of special damages for loss of business of Sh 1,799,978,868 to be paid by Heineken E.A and Heineken International B.V arising from their repudiatory breach of the Kenya Distribution Agreement.
