The Director of Public Prosecutions (DPP) has asked the High Court to strike out a constitutional petition filed by Diageo PLC, arguing that the case is premature, speculative and seeks to unlawfully interfere with the constitutional mandate of the prosecution authority.

In a Notice of Preliminary Objection filed before the court, the DPP contends that the petition and accompanying application are legally untenable and should be dismissed with costs.

According to the prosecution, the court lacks jurisdiction to entertain the matter as framed because it is based on apprehended criminal proceedings that have neither been commenced nor approved by the Office of the Director of Public Prosecutions.

The DPP argues that Diageo is seeking constitutional intervention in matters that can be adequately addressed through existing criminal justice mechanisms, including procedures established under the Criminal Procedure Code and the National Police Service Act.

The prosecution further maintains that the petition amounts to an abuse of the court process because it seeks orders restraining the DPP from exercising constitutional and statutory powers despite there being no demonstrated decision to prosecute any of the parties involved.

The DPP also argues that granting the orders sought would undermine the independence of the office as protected under Article 157(10) of the Constitution, which shields the Director of Public Prosecutions from direction or control by any person or authority in the discharge of prosecutorial functions.

According to the objection, the petition is speculative and non-justiciable because it seeks anticipatory relief against criminal proceedings that may never materialize.

The prosecution further contends that the petition fails to disclose a reasonable constitutional cause of action and does not sufficiently demonstrate any violation attributable to the DPP. It cites established legal principles requiring constitutional petitions to plead alleged violations with precision.

The DPP maintains that the matter is not ripe for constitutional adjudication because no final prosecutorial decision has been made that could be challenged before the court.

Further, the prosecution argues that the reliefs sought offend the doctrine of separation of powers by seeking blanket orders that would permanently restrict the office from carrying out its future constitutional and statutory duties.

The DPP also relies on Section 193A of the Criminal Procedure Code, which provides that the existence of civil, commercial or arbitral proceedings does not bar criminal investigations or prosecutions arising from the same set of facts.

According to the prosecution, the petition improperly seeks to convert contested commercial and factual disputes into constitutional questions while attempting to pre-empt lawful investigative and prosecutorial processes.

The objection concludes that the orders sought would unlawfully fetter the discretion of the DPP and effectively immunize the petitioner from potential criminal proceedings, contrary to public interest and the administration of justice.

The court is now expected to determine whether the preliminary objection raises pure points of law capable of disposing of the petition before considering the substantive issues raised by the parties.

Background to the Dispute

Diageo PLC is seeking conservatory orders to halt ongoing criminal proceedings linked to a long-running commercial dispute arising from the refurbishment of Kenya Breweries Limited’s Kisumu brewery plant.

In the constitutional petition, filed against Jilk Construction Company Limited, the Director of Criminal Investigations (DCI), the DPP, the Attorney General, Kenya Breweries Limited (KBL) and East African Breweries PLC (EABL), the multinational beverage company argues that the criminal process is being used to pursue matters already subject to arbitration and ongoing civil litigation.

The company is seeking urgent orders restraining the DCI, DPP and other state agencies from pursuing Criminal Miscellaneous Application No. E1110 of 2026, Jilk Construction Company Limited & 3 Others v Diageo PLC & 6 Others pending the hearing and determination of its petition.

Court documents indicate that the dispute stems from three construction contracts entered into between Jilk Construction and KBL between October 2017 and March 2018 for refurbishment works at the Kisumu brewery under the project known as “Project Nafasi.”

A dispute later arose over the contracts and was referred to arbitration in 2020 pursuant to agreements between the parties. However, the arbitral award has yet to be delivered following court orders suspending its publication.

The arbitration proceedings subsequently gave rise to separate litigation, including Nairobi High Court Commercial Petition No. E029 of 2024 involving KBL and other parties.

Diageo argues that although it was not a party to the original construction contracts or arbitration proceedings, it was later drawn into the dispute through Milimani HCCOMM Petition No. E032 of 2026 filed by Jilk Construction.

The company contends that the criminal proceedings currently being pursued arise from the same facts that are the subject of ongoing commercial litigation and arbitration.

However, the DPP has strongly opposed the petition, maintaining that Diageo is seeking to stop constitutionally mandated investigative and prosecutorial processes despite there being no demonstrated decision to prosecute.

The prosecution further argues that the petition violates the doctrine of constitutional avoidance by seeking constitutional remedies for matters that can be addressed through ordinary criminal and procedural law mechanisms.

The DPP insists that granting the orders sought would improperly interfere with the independence of the Office of the Director of Public Prosecutions and effectively shield the petitioner from lawful criminal processes.

The matter is now before the High Court for determination.