From Brewery Revival to Arbitration Hangover: Pastor, Quantity Surveyor and KSh324 Million in “Coincidences” Leave KBL Seeing Double

The relationship between Mutinda Mutuku and Pastor Engineer Sammy Maina Kamau and their companies is under scrutiny as the two battle Kenya Breweries Limited after a bitter fallout over the last five years.

Kamau’s company, JILK Construction Limited, had in 2017 been awarded a contract for civil works at Kisumu, where KBL was reviving a brewery that had lain dormant.

The component of the job JILK was contracted for was budgeted for at KSh1.5 billion. In 2019, after the job had ended, JILK asked to be paid KSh163 million. KBL disputed the amount and agreed that an arbitrator was best placed to resolve the issue.

Unknown to KBL, Mutinda Mutuku, the arbitrator who was appointed by the Architectural Association of Kenya, had been in business with Pastor Kamau’s company JILK for many years.

Documents in the case show that when asked whether he had any relationship with JILK, Mutuku, a quantity surveyor by profession, said they had worked together in 2018. Asked for a written declaration, he sent a response indicating that he had rendered services as a quantity surveyor in a project in which  JILK had been contracted. He however failed to clarify the nature, scope and financial terms of that engagement but insisted he would be neutral.

They met again in September 2020 and when pressed, Mutuku admitted to having worked with JILK on a contract with Mwalimu Sacco. He cited confidentiality agreements when asked to provide details.

KBL’s attempts to get Mutuku to recuse himself from the arbitration were, however, turned down by the Arbitration Tribunal as well as the High Court, although the court noted the serious nature of the allegations against Mutuku.

KBL says in its applications and affidavits that it later found out that six months before he was appointed the arbitrator, Mutuku had been paid KSh174 million by Pastor Kamau of JILK and that three weeks before he was appointed, had received another KSh150 million from JILK.

On top of that, Mutuku and Pastor Kamau remained in contact and visited each other’s offices.

KBL says in its applications: “It is clear from the above that the process leading to the appointment of the arbitrator and his failure to disclose his relationship with JILK are highly irregular, corrupt and deliberate undermining of the arbitration processes.”

“Unfortunately, neither the Arbitration Act nor the Architectural Association of Kenya provide mechanisms for compelling disclosure by a recalcitrant arbitrator,” KBL added.

In January, JILK sought to add a twist to the case, with Pastor Kamau writing to the Director of Public Prosecutions notifying him of his intention to pursue private criminal proceedings against EABL executives for allegedly assisting one of the foreign contractors at the Kisumu Brewery to escape justice for sexual harassment.

The female employees had filed the report in January 2020, after the project in Kisumu had been completed and the foreign contractor had already left Kenya.

In his applications, Pastor Kamau of JILK claims that the case by KBL stopping the arbitration award was filed as retaliation for his employees filing the harassment claim in January 2020, rather than the inflation of the amount in dispute from KSh163 million to KSh2.4 billion. He has also not commented about the long-standing relationship between him, JILK, and the quantity surveyor who was supposed to be a neutral arbiter in the case between him and KBL.

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