https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7857

East African Breweries Ltd v Maina (Civil Appeal 69 of 2021) [2026] KEHC 7857 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7857 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal 69 of 2021 E Ominde, J June 3, 2026 Between East African Breweries Limited Appellant and Richard George Nechesa Maina Respondent Judgment 1.The Respondent instituted a suit in the trial court by way of a Plaint dated 27th May 2016 seeking; General Damages, Special Damages and Costs. The cause of action arose from an allegation that he had consumed a contaminated drink manufactured by the Applicant and consequently, sustained injuries. In the plaint, he pleaded that he was having drinks in Eldoret on 6th November 2015 when he encountered a used condom in the drink he was consuming. 2.That he checked further and discovered that the drink had contaminations in it and was traumatised, shocked and became unwell thus going for medical treatment. He listed the particulars of negligence, suffering, psychological trauma, injuries and damages sustained and sought special damages of Kshs. 11,000/- and general damages. 3.The Appellant, then the defendant, filed a statement of defence dated 29th May 2017 through the firm of Messrs Mose, Mose & Milimo advocates. The defendant denied all the claims in the plaint and put the Plaintiff to strict proof. It denied the allegations in the plaint and urged that it had a robust complaint handling procedure in place which involves various steps to wit; that all products manufactured in Kenya Breweries Limited contain a customer hotline and upon contacting the hotline, the complaint is logged and investigated. 4.That the product complained of is thereafter submitted for testing either by the Kenya Breweries Limited lab and/or Kenya Bureau of Standards. It averred that beer is brewed in batches of over 20,000 crates, being approximately 500,000 bottles. In the unlikely event of contamination, which is in any event denied, the same would affect the whole batch. 5.The Defendant averred that it had not received any complaints from other members of the public who may have consumed its products from the retailer that the Plaintiff allegedly purchased the said products from. It denied the particulars of negligence and breach of statutory duty of care and maintained that it had put in place very strict measures to ensure and indeed guarantee the quality of its products. 6.The defendant averred that the claim is fraudulent and listed the particulars of fraud on the part of the plaintiff as follows;(a)Seeking unjust compensation from the Defendant.(b)Falsely accusing the Defendant of gross negligence whilst seized of the knowledge that his allegations are made-up and untrue,(c)Tampering with the product, inserting impurities and making false claims.(e)Failing to subject the bottle for laboratory testing.(f)Lodging in court falsified and/or forged documents in support of his claim.(g)lodging a false complaint before this Honourable Court,(h)Purporting to have effected Service of the Summons upon the Defendant,(i)Presenting a false Affidavit of Service to Court as proof of service of Court summons.,(j)Failing to serve summons to enter appearance and(k)Failing to notify the Defendant of entry of interlocutory judgment. 7.It denied that the Plaintiff either fell ill or suffered the alleged psychological injuries or loss, and, that the cause or likely cause of the alleged illness or injuries of the Plaintiff was as a result of consuming the alleged unnamed product as claimed. In addition, that the Defendant denied that the Plaintiff is entitled to the damages as claimed. The Respondent filed a reply to the defence dated 27th June 2017 where he reiterated the contents of the plaint and denied the claims in the defence. The matter then proceeded for full hearing. 8.However, before delving into the merits and/or demerits of this appeal, it is important that the court reiterates the duty of a first appellate court in any appeal filed before it. This duty is clearly spelt out in Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the court stated as follows-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 9.Further, In Williamson Diamonds Ltd and another v Brown [1970] EA 1, the court held that:“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.” 10.The appellate court can only re-evaluate, re-examine and re-assess the facts of the case as presented to the trial court in order to reach its own independent conclusion by going through the testimony of the witnesses who testified on behalf of either party and evaluating the documentary evidence and any other evidence that was produced in support thereof, and which testimony can only be discerned through the proceedings before that trial court. This is the reason why the Civil Procedure Rules in laying out what a Record of Appeal must contain provided as follows at Order 42 Rule 13(4);Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—(a)the memorandum of appeal;(b)the pleadings;(c)the notes of the trial magistrate made at the hearing;(d)the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;(e)) all affidavits, maps and other documents whatsoever put in evidence before the magistrate;(f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal: 11.All the requirements set out in the said Order 42 Rule13(4) (c), (d) and (e) are what comprise the proceedings of the trial court. It is the in re-examining these proceedings that the appellate court is able to decipher what comprised the facts of the case. In the instant appeal, a careful perusal of the Index of the Record of Appeal as well as the entirety of the record itself has revealed that the proceedings of the trial court are not therein included. 12.For this reason, the Record of Appeal as filed is not only incomplete but also contravenes the laid down legal requirements and procedures and is therefore defective both in substance and in procedure. It is therefore not possible for the court to completely apply itself as is required of it by the herein cited cases on the facts of the case. In this regard, it is my finding that the Appeal as herein filed is not only defective but also bad in law and the same is accordingly now hereby struck out with costs to the Respondent. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 3RD JUNE 2026E. OMINDEJUDGE