Keroche Breweries Ltd got a major boost in the beer bottle legal tussle with its main business rival the East Africa Breweries Ltd (EABL) after a court declined to expunge part of its defence in the case.
EABL and its subsidiary Kenya Breweries Ltd (KBL) had filed an application seeking orders that certain sections of the defence and counter-claim filed by Keroche, be struck out for being irrelevant to the case before court.
In his ruling, Justice Fred Ochieng, however, rejected the application saying that when Keroche responded to the claims of unfair competition, by asserting that it was EABL and KBL who were culpable of unfair competition, the same cannot be said to be extraneous.
“In my considered opinion, the defence on record filed by Keroche, including the paragraphs which EABL and KBL wished to have struck out, are not oppressive, scandalous or immaterial,” Mr Justice Ochieng said.
The court also said the Naivasha-based brewer, Keroche, cannot be faulted for formulating its counter-claim in the manner it has chosen.
“The style may not meet the standards envisioned by EABL and KBL, but that is not reason enough to warrant the striking out of the paragraphs which EABL and KBL deem inappropriate,” Justice Ochieng said in his ruling.
The judge said there has been no conclusive demonstration by EABL and KBL that either the alleged paragraphs in Keroche’s defence or counter-claim were bound to fail or would cause unnecessary delay in hearing and determination of the case.
“If anything, it is the application by EABL and KBL which sought striking out of some paragraphs in the defence or counter-claim, which has resulted in the case being put on hold,” said Justice Ochieng.
In March this year, EABL and KBL filed a case in court seeking orders to compel Keroche to stop bottling beer in brown bottles labelled “EABL”, saying Keroche was infringing on its copyright and using its resources to further its business.
In its defence, Keroche denied the allegations, saying brown bottles are conventionally used worldwide by beer manufacturers and hence, are not reserved for any beer manufacturer to patent or trademark.
“Those universal bottles are colloquially known as ‘Euro Bottles’. By the nature of beer, it is sold and retailed either in brown or green bottles to protect it from exposure to dangerous ultra violet rays which can denature it,” says Keroche.
An investigation report filed in court by EABL shows that the top two beer makers have mixed up their bottles so much that consumers do not know they are drinking their favourite drinks packed in the rival firm’s bottles.
The mix-up is aggravated by bar owners who cannot differentiate Keroche and EABL bottles.