A petition by alcohol distributors over brown beer bottles will now be merged with an earlier case pitting East African Breweries Ltd (EABL) against Keroche Breweries.
In a ruling on Friday, Justice Grace Nzioka said striking out the case would be draconian.
The judge, however, agreed with EABL through its lawyer Kamau Karori that the case by six beer distributors raised similar issues, in another matter pending before the court.
Justice Nzioka said the matter is better handled by one judge because it might end up embarrassing the Judiciary if the judges arrive at different conclusions.
EABL had asked the court to strike out the petition by the distributors, arguing that the latest case was meant to defeat the earlier one in which the parties entered a consent over the beer bottles.
Mr Karori added that the case seeks to frustrate a temporary injunction issued by another judge restraining Keroche from distributing its Summit Larger and Vienna Ice ready-to-drink vodka with EABL’s engraved bottles or any other bottle bearing EABL mark since that infringes on its trademark.
He said since the order was issued in 2017, every bottle bearing EABL trademark was deemed to belong to the company.
EABL said it buys EABL engraved glass bottles from a leading glassmaker in Kenya and that it packages its products of more than 10 varieties of beer bottles.
Alexander Mugo, Jacob Wamiti, Phasty Wanjiru Wachira, Samuel Kamau, Catherine Wanjiru and Herman Mwaura said they are entrepreneurs engaged in the distribution of alcoholic products supplied by Keroche Breweries.
The six distributors moved to court accusing EABL of abusing its dominance by mopping up beer bottles to drive Keroche out of the market.
They added that the move by EABL would destroy their source of income.
The distributors said the decision by EABL to emboss all beer bottles with a universal shape with its unique initials is a negation free and competitive market principles. They argued that the act of exclusively embossing the beer bottles is predatory as it locks out other sellers, who use the same shape of bottle, from the market. In the documents filed in court, the distributors said allowing KBL and EABL exclusive use of the brown bottles is irrational and unreasonable and an abuse of intellectual property, misuse of dominance.
Through Mr Irungu Kang’ata, the distributors said their agents have been harassed and arrested for using the contentious bottle.
The distributors said they have invested millions of shillings in capital to set up their business and acquiring licences.
EABL published the court order on December 20 to inform the general public of the ownership of bottles and bottle crates which are engraved with EABL trademark, triggering the new fight.
2017 The year the order restraining other alcohol making firms from using bottles and crates bearing the East African Breweries Limited logo was issued. The bottles were deemed to belong to the company
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