The High Court has spared tycoon Ngugi Kiuna from paying Sh120 million to a Dutch company, which he sued six years ago over the termination of the distributorship of Heineken beer.
Mr Kiuna, through his company Maxam Ltd, sued Heineken International B.V. and companies linked to it including Heineken East Africa and Heineken Brouwerijen B.V. in 2016.
The matter proceeded to a full hearing and the beer maker was directed to pay his firm Sh1.7 billion for breach of contract, although Heineken International filed an appeal.
But before the matter was concluded, Maxam’s sister companies Modern Lane Ltd and Tanzania’s Olepasu Ltd- discontinued claims against Heineken.
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The Dutch firms conceded to withdrawal on two conditions, that they are paid the withdrawal and adjournment costs.
Heineken Brouwerijen B.V was also dropped from the case and in 2018, the firm sought to be paid costs for being dragged in court and the deputy registrar ordered Maxam to pay Sh120 million as costs.
Mr Kiuna, however, challenged the fee saying the bill was not to be paid by his firm and secondly, Heineken Brouwerijen B.V had based the claim on the entire Sh5.3 billion he was seeking from Heineken yet the specific amounts claimed from each of the associates’ firms.
“I agree with both the respondents and the taxing officer that an order for the costs of the withdrawn claims was awarded, but I am not in agreement that the same was against all the plaintiffs,” Justice Alfred Mabeya said.
Justice Mabeya said the judge who handled the case in 2017 was very clear in his order that the costs were to be borne by Modern Lane Ltd and Olepasu Ltd.
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“Accordingly, I hold that although the claims by the plaintiffs were in one suit, each of the plaintiffs had a separate and distinct claim against the defendants. The claims have been separate and distinct as set out in both the body of the plaint and the prayers, the defendants cannot purport to tax their bill of costs on the total claim,” the judge said.
In the contested judgment, the High Court issued orders restraining Heineken and its agents from purporting to terminate the distribution agreement dated May 21, 2013.
The court further blocked the appointment of any other distributors after finding that the notice of termination by Heineken to Maxam, dated January 27, 2017, was “unlawful, irregular, null and void.”
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