https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11958

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. E079 OF 2025** **KENYA BREWERIES LIMITED…………………………….………..….APPELLANT** **VERSUS** **MICHAEL GITAU…………………………………………..……………..RESPONDENT** **JUDGMENT** 1. Before this Court is an appeal arising from the Judgment and Decree of the Principal Magistrate, Hon. Paul Matanda Wechuli, delivered on 6th March 2025 in Kithimani CMCC No. 91 of 2020. 2. The dispute before the trial court arose from a claim by the Respondent that after purchasing and consuming a bottle of Richot Brandy allegedly manufactured by the Appellant, he suffered food poisoning after discovering that the drink contained foreign objects, rendering it unfit for human consumption. 3. The Respondent instituted a suit seeking general damages, special damages of Kshs.1,600/=, costs and interest. 4. The Respondent attributed his injuries to the Appellant's negligence and breach of its duty of care as the manufacturer of the impugned product. 5. The Appellant filed a Statement of Defence dated 26th October 2020 denying liability. 6. It stated that the impugned product was not defective and maintained that the bottle allegedly consumed by the Respondent was never submitted to either the Appellant or the Government Chemist for scientific examination. 7. The Appellant further pleaded that it had been improperly joined in the proceedings, contending that it was wrongly joined in the proceedings, the product having been manufactured by another distinct entity than itself, which was its subsidiary. 8. Upon hearing the parties, the trial court entered judgment in favour of the Respondent. 9. The trial court found that the Appellant had breached its duty of care owed to the Respondent, held it 100% liable, and awarded the Respondent KShs. 180,000/= as general damages, KShs. 1,600/= as special damages together with costs of the suit and interest. 10. Aggrieved by the said Judgment, the Appellant lodged the present appeal vide the Memorandum of Appeal dated 15th May 2025, where the Appellants contended that the learned Magistrate erred in law and fact by: 11. Finding that the Appellant introduced the issue of misjoinder in its submissions, thereby denying the Respondent an opportunity to respond to the same, when in fact the Appellant had raised the same issue in paragraph 3 of its Statement of Defence. 12. Failing to appreciate the fact that the Appellant was denied by the Respondent the opportunity to conduct any investigations on the impugned product, thereby arriving at a wrong conclusion that the Appellant never adduced contrary evidence from another expert to challenge or impeach or bring doubts to the evidence of the Respondent’s medical doctor (PW2) 13. Finding that the Respondent's medical evidence sufficiently established causation even though neither the Respondent's medical practitioner nor any independent laboratory examined or analysed the impugned product. 14. Relying on the Respondent's assertion that the Government Chemist lacked the necessary testing reagents despite there being no evidence to substantiate that claim, thereby concluding that the Appellant had breached its duty of care. 15. Failing to consider the Appellant's evidence regarding its quality control processes, which were designed to ensure that its products were free from contamination. 16. Failing to appreciate the Appellant's evidence that no complaints had been received concerning other products manufactured within the same production batch as the impugned bottle. 17. Finding that the Respondent had proved that the injuries complained of resulted from the Appellant's product notwithstanding the absence of scientific evidence linking the alleged injuries to the impugned bottle. 18. Awarding general damages of Kshs.180,000/=, which the Appellant contends were excessive and unsupported by the evidence. 19. Awarding special damages of KShs.1,600/= despite the alleged discrepancy between the date pleaded as the date of purchase and the date reflected on the receipt produced in evidence. 20. Awarding the Respondent costs of the suit despite the alleged failure to prove the claim to the requisite standard. 21. The Appellant therefore prays that the appeal be allowed, the Judgment and Decree of the trial court be set aside, and the Respondent's suit in Kithimani CMCC No. 91 of 2020 be dismissed with costs. 22. The Appellant in its written submissions dated 10th December 2025, in support of the appeal, submits that the Respondent failed to discharge the burden of proving negligence on a balance of probabilities as required by law. 23. The Appellant contends that although it owed consumers a duty of care, there was no scientific evidence demonstrating that the impugned bottle was contaminated or contained foreign substances. 24. The Appellant argues that no analysis was undertaken by the Government Chemist, the Kenya Bureau of Standards or any accredited laboratory to establish either contamination or a causal link between the product and the injuries complained of. 25. It further submits that the trial court failed to properly evaluate the evidence of its expert witness, who highlighted inconsistencies in the Respondent's medical records. 26. According to the Appellant, the medical evidence adduced by the Respondent did not establish that the Respondent’s injuries were caused by its product. 27. On liability, the Appellant submits that the Respondent failed to establish breach of duty of care, causation and damage in accordance with the principles set out in Donoghue v Stevenson(1932) ALL ER 1 andKenya Breweries Ltd v William Kipsang[2007] eKLR. 28. It further argues that its evidence regarding its quality assurance processes and the absence of complaints relating to products from the same production batch demonstrated that there had been no breach of duty on its part. 29. On quantum, the Appellant submits that the awards of general and special damages were unsupported by the evidence. 30. The Appellant contends that the Respondent failed to establish the requisite causal connection between the alleged negligent act and the injuries complained of and therefore there was no proper basis for the award of either general or special damages. 31. The Appellant urges the Court to allow the appeal, set aside the Judgment and Decree of the trial court together with all consequential orders, dismiss the Respondent's suit with costs and award the costs of the appeal to the Appellant. 32. The Respondent opposed the appeal through written submissions dated 5th March 2026 urging the Court to uphold the judgment of the trial court. 33. The Respondent submits that the trial court correctly found that the Appellant owed him a duty of care as the manufacturer of the alcoholic beverage and properly concluded that he had proved his claim on a balance of probabilities. 34. The Respondent argues that the evidence established that he consumed the Appellant's product, immediately became ill and sought medical treatment on the same day. 35. According to the Respondent, the evidence of PW2 sufficiently established that he suffered food poisoning after consuming an alcoholic drink containing impurities. 36. On the issue of misjoinder, the Respondent submits that although the Appellant pleaded that another subsidiary manufactured the impugned product, it failed to adduce any evidence demonstrating that the said entity was responsible for manufacturing the product or that the Appellant had been improperly joined in the proceedings. 37. The Respondent contends that the trial court correctly rejected that objection. 38. The Respondent further submits that he made every reasonable effort to have the impugned bottle scientifically analysed after obtaining court orders directing testing by the Government Chemist. 39. He argues that the failure to conduct the analysis arose solely because the Government Chemist lacked the necessary reagents and that should not be visited upon him. 40. He maintains that the absence of laboratory analysis did not negate the medical evidence adduced before the trial court. 41. The Respondent also submitted that the Appellant failed to rebut his case. 42. He submits that although the Appellant led evidence concerning its manufacturing and quality control processes, it failed to demonstrate that the impugned bottle did not originate from its production line or otherwise explain the alleged contamination. 43. In support of this contention, the Respondent relies on Kenya Breweries Ltd v Godfrey Odoyo[2010] eKLR for the proposition that a manufacturer bears an evidential burden regarding matters peculiarly within its knowledge. 44. On quantum, the Respondent submits that the awards of Kshs. 180,000/= as general damages and KShs. 1,600/= as special damages were based on the evidence and applicable legal principles. 45. He argues that the trial court properly considered the nature of the injuries sustained, comparable authorities, inflation and prevailing economic conditions, and that the special damages were specifically pleaded and strictly proved through documentary evidence. 46. The Respondent urges this Court to find that the trial court properly evaluated both the evidence and the applicable law, dismiss the appeal with costs, and uphold the Judgment together with the awards of damages, costs and interest. 47. From the Memorandum of Appeal, the pleadings, the evidence on record and the judgment of the trial court, the appeal raises two broad issues for determination, namely: 48. Whether the Appellant was improperly joined in the proceedings; and 49. Whether the Respondent proved his case against the Appellant on a balance of probabilities. 50. In Selle v Associated Motor Boat Co. Ltd (1968) EA 123, the Court of Appeal set out the duty of a first appellate court, namely, to reconsider the evidence, evaluate it afresh and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 51. The Respondent's claim before the trial court was founded on negligence. 52. It is therefore necessary to consider whether the evidence on record established the essential ingredients of negligence. 53. The ingredients of negligence are well settled: A claimant must establish that the defendant owed him a duty of care, that the duty was breached, that the breach caused the damage complained of and that the damage was reasonably foreseeable. In CFC Stanbic Bank Limited v Kenya Haulage Agency Limited [2025] KECA 1034 the Court of Appeal stated that: "For liability in negligence to be founded, four key ingredients must be present, namely: a duty of care owed by the defendant to the claimant, breach of that duty, damage which is caused by the breach and foreseeability of such damage." 1. Similarly, in Donoghue v Stevenson (1932) AC 562, Lord Atkin enunciated the neighbour principle, holding that a manufacturer owes a duty to take reasonable care to avoid acts or omissions which can reasonably be foreseen as likely to injure the ultimate consumer of its products. 2. The burden of proving those elements rested upon the Respondent, pursuant to the provisions of sections 107 and 109 of the Evidence Act. 3. The Respondent bore the legal burden of proving, on a balance of probabilities, that the Appellant manufactured the impugned product, that the product was contaminated or otherwise defective, that the Appellant breached the duty of care owed to consumers and that such breach caused the injuries complained of. 4. The evidential burden would only shift to the Appellant upon the Respondent establishing a *prima facie* case. 5. Guided by the foregoing principles, the Court now proceeds to re-evaluate the pleadings, the oral testimony, the documentary evidence and the findings of the trial court to determine whether the Respondent discharged the burden of proving negligence on a balance of probabilities 6. The Respondent's case before the trial court was principally founded upon his own testimony, the evidence of PW2, the documentary exhibits produced and the medical evidence tendered in support of the claim. 7. In his Statement dated 23rd June 2020, the Respondent stated as follows: *"…At all material times relevant to this suit, I was a consumer of an alcoholic drink, namely Richot Brandy, manufactured and put on sale by the defendant (Appellant)* *On or about 6th January 2020, I purchased for consumption an alcoholic spirit namely Richot 750 ml brandy, at Starehe Bar at Kithimani, but in the course of its consumption it had a funny and unfamiliar taste, and rather it had deposits that seemed to be dead insects or otherwise foreign objects, causing me to sustain grievous injuries*…. *Upon a visit to Matuu Level 4 hospital were diagnosed as having been caused by the Richot brandy."* 1. In support of his case, the Respondent produced the following documentary evidence: 2. A P3 Form dated 9th March 2020 referring to OB No. 15/3/2020.The P3 Form indicates that the matter was reported to the police on 3rd March 2020 at 1225 hours and describes the alleged offence as food poisoning by Kenya Breweries. 3. A Matuu Level 4 Hospital Outpatient Record dated 9th March 2020 bearing the hospital stamp of the same date. 4. A receipt dated 12th January 2020 showing the purchase of, among other items: * Richot * Richot * Cider * Cider * Soda * Mango * Water * Soda * Richot * Soda * Cider * White Cap * Red Bull * Guarana 1. The Appellant relied on, among other evidence, a witness statement dated 21st May 2024 2. The record of the court proceedings further shows that: 3. The Respondent adopted his written statement as part of his evidence; 4. Neither the bottle of Richot nor particulars of its contents were produced and admitted into evidence as exhibits during the trial; and 5. No chemical analysis of the liquid alleged to have caused the injuries was produced in evidence. 6. During re-examination, the Respondent testified as follows: *"…..We were many. I was the one taking Richot. I drank a glass first, then asked for 750ml. I bought it from the counter. I have a receipt (dated 12th January 2020).* *When I found the first Mzinga to be bad. I bought another one and went home with 2 bottles. I went to Matuu Hospital on the same day, 6.1.2020. I reported to the police the following day, 7.1.2020. They said I should heal first before I am given a P3. P3 was filled on the 9th. It indicates the time of offence is 10th February 2020."* 1. PW2, Duncan Muthoka, a clinician from the County Government of Machakos, testified as follows: *"….There was a client who vomited blood. I treated him and reviewed him; I saw him on 8th and 9th…..* *….What he had taken caused this.* *..He recovered, so I didn't do further tests. The vomit was more protective. It had food material and black matter."* 1. On cross-examination, he stated: "*I did not come with any alcoholic drink.* 1. Having carefully reconsidered the evidence on record, this Court notes that there is no dispute that the Respondent consumed an alcoholic beverage identified as Richot Brandy and subsequently sought medical treatment after complaining of illness. 2. The central question, however, is whether the evidence adduced was sufficient to establish, on a balance of probabilities, that the Respondent’s injuries were directly caused by drinking a bottle of Richot Brandy manufactured by the Appellant. 3. The Respondent's case was that the bottle of Richot Brandy contained foreign objects which appeared to be dead insects and that upon consuming the drink he developed symptoms which were later diagnosed as food poisoning. 4. His evidence in that regard remained consistent both in his written statement and during his oral testimony. 5. However, it is equally apparent from the record that neither the impugned bottle nor its contents were produced before the trial court as exhibits. 6. Similarly, no chemical or laboratory analysis of the liquid was undertaken or produced in evidence. 7. The Respondent did not call any independent witness to corroborate his version of events as regards the dead insects or foreign matter even though he stated they were many. 8. The Respondent testified that he was informed at Matuu Level 4 Hospital that his injuries were diagnosed to have been caused by the Richot Brandy. 9. I have reviewed the entire evidence by the clinician from Matuu Level 4 Hospital, and nowhere in his statement did the clinician attribute the Respondent’s injuries directly to the Richot Brandy. 10. The Clinician’s evidence was that the Respondent’s injuries were occasioned by what he had consumed; the clinician testified that the Respondent vomited food material and black matter. 11. The Clinician testified that the vomiting was preventative, indicating that it was either the food material or black matter that occasioned the Respondent’s illness 12. The Clinician did not produce any treatment notes evidencing his diagnosis of the Respondent’s illness. 13. The Clinician did not conduct any further tests because, as he stated, the Respondent had recovered. 14. The Respondent produced a receipt of purchases on the material day which demonstrated that the Respondent consumed several items, not just the Richot Brandy; indeed the Clinician testified that he vomited food material. 15. The Respondent did not adduce the bottle of Richot and its contents into evidence; the Respondent did not adduce any scientific examination of the contents of the Richot Brandy to the court. 16. The Respondent had a legal and evidential burden to demonstrate how the contents of the Richot Brandy that he took directly caused him injury on a balance of probabilities. 17. I find that from the evidence on record, the evidential burden of proof never shifted to the Appellant. 18. I say so because the bottle with its alleged contents was never admitted into evidence, there was neither a scientific determination by either the clinician nor a chemical analyst's report directly tying the Respondent’s illness to the contents of the Richot Brandy. 19. The bottle and its contents being in the peculiar knowledge and custody of the Respondent, it was incumbent upon him to prove his allegations on its contents, which he failed to do. 20. There is also evidence adduced by the Respondent’s own witness: that is the Clinician, and the Respondent himself, a receipt indicating items purchased, that the Respondent ingested more than just the Richot Brandy, necessitating the production of further evidence singling out the Richot Brandy for occasioning the Respondent’s illness. 21. I also note that the documentary evidence adduced by the Respondent was riddled with a lot of inconsistencies that impact negatively on their probative value. 22. Whereas the Respondent testified that he consumed the alcoholic drink on 6th January 2020 and sought treatment on the same day, the documents produced include a receipt dated 12th January 2020. 23. The P3 Form and the outpatient treatment records bear a different date, which is 9th March 2020. 24. During re-examination, the Respondent stated that he reported the matter to the police on 7th January 2020, whereas the P3 Form indicates that the matter was reported on 3rd March 2020 at 1225 hours. 25. The receipt for purchases is dated 12th January, not 6th January, the date of the alleged event. 26. These inconsistencies required careful evaluation by the trial court in determining whether the Respondent had discharged the burden of proof. 27. The Appellant led evidence regarding its quality assurance procedures and maintained that no similar complaints had been received concerning products from the same production batch. 28. The other issue was on misjoinder. 29. The Appellant pleaded at paragraph 3 of its Statement of Defence that it had been wrongly sued on the basis that the impugned product was manufactured by another entity. 30. The Appellant contends that the trial court erred in finding that the issue of misjoinder had been raised for the first time in submissions. 31. A perusal of the Statement of Defence confirms that the issue of misjoinder was specifically pleaded. 32. The question, however, is whether the Appellant adduced evidence to demonstrate that it was not the manufacturer of the impugned product. 33. Although the Appellant maintained that the product was manufactured by another entity, no evidence was produced to establish the identity of that entity or demonstrate that it was a distinct legal person responsible for the manufacture of Richot Brandy. 34. Pleadings, however strongly worded, do not constitute evidence. 35. Once the Appellant alleged that Richot Brandy is manufactured by its subsidiary which is distinct from itself, it was incumbent upon the Appellant to lead evidence in support of its plea; seeing that this was raised in the statement of defence, the plea of misjoinder therefore remained unsubstantiated. 36. While the learned trial magistrate erred in stating that the issue of misjoinder had only been raised in the Appellant's submissions, that error did not affect the ultimate finding that the Appellant failed to prove that it had been improperly joined in the suit. 37. In the present case, although the Respondent testified that the bottle contained foreign objects and that he fell ill after consuming its contents, the alleged contamination was not established by any independent evidence. 38. Neither the impugned bottle nor its contents were produced before the trial court, and no chemical analysis was undertaken to ascertain whether the product was in fact contaminated. 39. From the foregoing evidence, it is evident that the allegation of contamination was not supported by probative evidence on the same. 40. I find that the Respondent did not discharge either the legal or the evidential burden of proving the essential elements of negligence on a balance of probabilities. 41. In the circumstances, I find that the Appeal is meritorious. I therefore order as follows: 1. That the Appeal succeeds 2. The Judgment and decree of the Court in Kithimani CMCC No. 91 of 2020, Principal Magistrate, Hon. Paul Matanda Wechuli, delivered on 6th March 2025 is hereby set aside and substituted with an order dismissing the suit 3. The Appellant shall have costs of the Appeal. **Emmanuel Bitta** **Judge of the High Court** Dated, signed and delivered via Microsoft Teams at Mombasa this 30th day of July 2026 In the presence of: Nechesah C/A Mbugua h/b Mbiyu Kamau Njuguna for Appellants