KENYA – Beer wars took a new twist as Keroche Breweries Ltd moved to court seeking to dismiss a suit by East African Breweries Ltd (EABL) over alleged illegal diversion and use of its bottles.

In a replying affidavit filed at the High Court in Nairobi, Keroche says the allegations are not based on truth and are made on ill motive.

This comes after EABL and Kenya Breweries Ltd moved to court last month seeking orders to stop Keroche from using or dealing with Summit Lager or Vienna Ice products, claiming they are being sold in bottles bearing EABL’s trademark. But Naivasha based Keroche has hit back.

Through advocate Ndung’u Karanja, Keroche argues that EABL uses universal brown bottles which are conventionally used worldwide by beer manufacturers, not the unique brown bottles as it claims.

Keroche CEO Tabitha Karanja says the bottles are known in the market as “Euro Bottles”. The brewer says EABL does not have any intellectual right to the brown beer bottles.

“Keroche is strange to the allegations by EABL and Kenya Breweries Ltd and cannot plead to the same,” says Karanja in the response.

It denies using EABL branded bottles for its beers and claimed its rival was scheming to lock it out of the beer industry. Keroche asserts that many beer manufacturers use the brown bottles in question worldwide.

In its 20-page defence, Keroche accuses EABL of dishonesty in laying claim to a bottle they neither invented nor have a claim to. “… the brown beer bottles assumed usage long before the plaintiff started using them. The plaintiff cannot claim any novelty of the unique attributes of the bottles peculiar to them,” the court papers read.

“Thus purporting to inscribe the alleged trademark on the universal bottle, the plaintiffs (EABL) carefully set stage for engaging in future restrictive trade practices as they’re doing now. All these were premeditated.”

According to Keroche, beer is sold in either green or brown bottles to protect the content from harmful rays.

The company accuses EABL of using weigh department officials to harass its distributors and retailers out of the market.

“EABL clearly and openly influenced the offices of the fourth defendant in the counterclaim, situated in Nyeri and Laikipia counties who acted in a clearly partisan manner to harass the defendant,” reads the Keroche claim.

In its response, Keroche also accuses EABL of being behind the collapse of the Thika based Castle Brewing Kenya Ltd, which it eventually took over.

EABL moved to court under a certificate of urgency through Coulson Harney advocates, claiming the use of the contested beer bottles would create confusion in the market.

“The respondent’s unauthorised use of the EABL trademark is exposing the plaintiff (EABL) to great risk of damage of their brand due to the fact that they have no control over the products manufactured by Keroche that are sold in bottles that prominently display the EABL trademark.”

EABL, in its claim, argued that Keroche’s alleged use of the bottles is not only a civil wrong but a criminal misconduct and urged the court to stop it.

Justice Fred Ochieng issued a court order barring Keroche from using the contested bottles until the case comes up for hearing on May 5.

Keroche now wants the orders lifted and a declaration made that EABL and Kenya Breweries limited are abusing their dominant position.

April 25, 2016;