[2005] KEHC 2127 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO 480 OF 2002

KENYA BREWERIES LIMITED ……………..………… APPELLANT

VERSUS

GODFREY ODOYO ………………………….……….. RESPONDENT

(An Appeal from the Judgment of Hon. Norah Owino, SRM in Milimani Commercial Courts Civil Suit No 520 of 2001 delivered on 22ndAugust, 2002).

JUDGMENT

Mr Godfrey Odoyo, the Respondent in this appeal, was a fan of Tusker Malt Lager, a beer manufactured by the Appellant, Kenya Breweries Ltd (hereinafter “KBL”).

Odoyo likes beer. He has been drinking it since the 1980’s. At around 11 pm on the night of 23rd June, 2000, he went to the Leader’s Inn Bar in Mathare. He asked for his favourite beer, Tusker Malt Lager. The barman said there were only three bottles left. He ordered all three. These were brought to his table, unopened. He drank the first bottle, happily. As he seeped through the second bottle, almost half-way through it, he noticed black particles on the inside surface of the glass bottle. He shook the bottle to see if it would dissolve. It did not. He then examined the unopened bottle, and noticed similar particle in that bottle. He rushed to the bathroom to clean his mouth, and while there, he began to throw up. He vomited for about 10 minutes. It was now almost midnight. He rushed to the Amani Medical Centre, a health clinic in his neighbourhood, taking with him both the opened and the unopened bottles of beer. Upon his arrival at the clinic he continued throwing-up, and began to suffer from diarrhoea. He was treated, given medicine and discharged some eight hours later.

When he got better, Odoyo submitted the unopened beer bottle to the Kenya Bureau of Standards (KBS) for examination and analyses. KBS found that the beer contained foreign particles; that it did not comply with the required specifications; and that it was not fit for human consumption.

Odoyo sued KBL and obtained Judgment in the lower court. He was awarded Kshs.91,990/= in general and special damages. KBL was aggrieved by that decision and has appealed to this court, citing the following 12 grounds of appeal:

“1. The learned Magistrate erred in finding that the Appellant was liable to the Respondent when no relationship either in law or in fact was established between the Appellant and the Respondent by the evidence adduced before her.

2. The learned Magistrate erred in law and in fact in not appreciating that liability against the Appellant could not attach as the Respondent had not consumed the contents of the beer bottle complained of or taken for examination by the Kenya Bureau of Standards.

3. The learned trial Magistrate erred in law and in fact in failing to address herself properly or at all on all the legal principles relating to the duty of care owed by the Appellant as a manufacturer to the Respondent as a consumer.

4. The learned Magistrate erred in law and in fact in not appreciating that liability of the Appellant was dependant on the fact that the Respondent did or did not scrutinize and/or examine the beer bottle in issue.

5. The learned Magistrate erred in failing to appreciate and consider that the burden of proof lay with the Respondent to prove negligence against the Appellant. 6. The learned Magistrate erred in not evaluating the totality of all the evidence before her and relied on assumption thereby finding that the Plaintiff’s (sic) had suffered damage and loss.

7. The learned Magistrate’s finding that the property in the beer had passed to the Respondent in order to attach liability against the Appellant is contrary to the law.

8. The learned Magistrate erred in law and in fact in holding that the Appellant’s liability has (sic) grounded on the fact that the Respondent did consume beer containing impurities before discovering the presence of impurities in the second beer which he had not consumed which finding was contrary to the evidence adduced before her.

9. The learned Magistrate erred in law and in fact in finding that the contents of the bottle taken for examination to the Kenya Bureau of Standard was a product of the Appellant and that it’s contents were similar to those consumed by the Respondent while there was no comparison of the two nor any Chemical test carried out.

10. The learned Magistrate erred in law and in fact in finding that the evidence of the officer from Kenya Bureau of Standards was admissible when the same was based only on physical examination of an alleged product of the Appellant.

11. The learned Magistrate (sic) decision to award the Respondent the sum of Kshs.70,000/= general damages is contrary to law and the award is manifestly excessive and against the weight of evidence adduced before her.

12. The learned Magistrate erred in law and in fact in not taking into consideration the Defendant’s submissions or at all.” Essentially, both liability and quantum are in issue.

At the outset, Mr Kibuthu, Counsel for KBL, abandoned grounds 1, 4 and 7 and chose to argue the other grounds together. In his submissions before this Court, he argued that the Respondent had not discharged the onus of establishing a case in negligence against KBL; that the Respondent’s evidence regarding the cause of his illness had major contradictions – relating mainly to the time beer was consumed. He argued that the Respondent had, by his own admission, eaten “nyama choma” at 4 pm which could have been the cause of his illness. There was also a contradiction relating to the “time” when the Respondent consumed beer – at one point he said it was at 4 pm, and at another point, he said it was at 11pm. Secondly, that according to the medical report {P Exhibit 1 (b)} the Respondent had taken beer on 25th June, 2000, yet the Respondent’s own evidence was that he took the same on 23rd June, 2000.

Mr Kibuthu further submitted that PW 1, Mr Samuel Ngobe, a retired Community Health Nurse, who concluded that the Respondent’s illness arose from an “oral drink” could not be relied upon because Mr Ngobe was not a qualified doctor; and finally that KBS’s report only showed that there were foreign particles found in the beer, but did not establish what those particles were, and whether they caused the illness. On the other hand, he argued, that KBL’s two witnesses had testified that beer produced by KBL went through a rigid electronic process which made it impossible for foreign particles to be present in beer bottles and that in any event micro-organisms could not possibly grow in beer because of lack of oxygen in it.

On quantum, Mr Kibuthu submitted that the injury here being only a soft tissue injury, the award was excessive, and relied on the cases of Lucy Munyoki vs Joseph Bett Kimtai (HCCC No 2035 of 1993 – Nairobi) and Raphael Mwaniki Kiboi vs Joseph Njogu Kinyua (HCCC No 3974 of 1988 – Nairobi).

Mr Ogutu, Counsel for the Respondent, argued that the case fell squarely within the principles of Donoghue vs Stevenson (1932) AFR 1; that the inconsistency in evidence was immaterial as long as the totality of the case showed that the Respondent suffered illness after consuming an impure product; that PW 2 (Ngobe) was fully qualified to treat the Respondent and to give an opinion about the cause of his illness; and that the award of damages was not excessive, given the injuries suffered. As this is a first appeal, it is my duty to assess and re evaluate the evidence before the lower court, bearing in mind that this court has neither seen nor heard the witnesses and should, therefore, make allowance for the same. I must be sure that the findings of facts made by the learned magistrate are based properly on the evidence before her and that she has not acted on wrong principles in reaching her conclusion. Now, having warned myself of that, let me examine the relevant evidence before the lower court.

The Respondent Odoyo’s evidence before the lower court, despite minor contradictions, is simple and straightforward. He went to the Leader’s Inn Bar at about 11 pm, ordered three bottles of his favourite beer, Tusker Matt Lager; drank one; half-way through the 2nd bottle saw foreign particles inside the glass bottle; threw-up, suffered from diarrhoea, was treated at the Amani Medical Centre; submitted the unopened contents of the third bottle for examination by KBS, and established that it did indeed contain foreign particles, which the health nurse who treated him, testified was the cause of his illness.

In my view, the onus on Odoyo was to show, on a balance of probability, repeat on a balance of probability, not beyond reasonable doubt, that he consumed beer manufactured by the Appellant KBL; that the beer was impure; and that as a result of drinking it he suffered illness. This he did, eminently well. It was not his duty to inspect the contents of the beer bottle before consuming the same. It was not his duty to prove that his illness could or could not have arisen because of any other cause. His duty simply was to show that he consumed something that was not fit for human consumption, such as the beer in this case, and as a result he suffered injury. Whether it was consumed at 4 pm or 11 pm is to split hair, and is irrelevant; whether it happened on 23rd June, 2000 or 24th June, 2000 is irrelevant; whether KBS failed to analyse in depth what the foreign particles contained is to defeat logic – the fact is that whatever it contained, it was impure, not fit for human consumption, and should not have been in that bottle, period! Besides, what was there to stop KBL from having the same tested and analysed independently? Why did they not do so? And, finally, to suggest that the Community Health Nurse, of Mr Ngobe’s experience, could not be relied upon to give professional assessment simply because he is not a qualified doctor is highly absurd, to say the least. There is nothing in the evidence to show that Mr Ngobe was not qualified for the job he did. And finally, to say that KBL had a full-proof system of ensuring that no foreign particles entered their bottles, and that “beer is a hostile environment for the growth of micro-organisms”, is very unhelpful to KBL – because the fact is that despite its so called “full-proof system”, this particular batch of beer bottles had foreign particles and the same was not fit for human consumption.

So, then, should KBL, as the manufacturer of the contaminated beer that caused injury to the Respondent here be liable in negligence?

Donoghue vs Stevenson (1932) AER 1 has made it unequivocally clear that a manufacturer owes a duty to take reasonable care to the ultimate consumer. The general principle has been well established by Lord Atkin who stated that “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” By “Neighbour” Lord Atkin was referring to “all persons who are so closely and directly affected by my act that I ought to reasonably have them in contemplation as being so affected when I am directing my mind to the acts or the omissions which are called into question.” More specifically, in reference to manufacturers Lord Atkin states that “a manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property owes a duty to the consumer to take reasonable care.”

The facts of the case in Donoghue vs Stevenson and in this case are remarkably similar. In both cases we are looking at individuals consuming beer, and the fact of the matter is that in both these cases it has been proven that there were impure particles in the beer which should not have been there. Based on Donghue vs Stevenson this duty to take reasonable care has been breached. The fact that the Plaintiff suffered vomiting, diarrhoea and more generally gastric illness as a result of the impurities in the bottles is proof that the standard of care owed by KBL was breached.

Grant vs Australian Knitting Mills (1936) AC 85reiterated these principles established in Donoghue vs Stevenson. In that case an individual suffered dermatitis as a result of defective underpants. Lord Wright stated that the essential principle was“that the presence of the deleterious chemical in the pants, due to the negligence in the manufacture was a hidden and latent defect, just as much as were the remains of the snail in the opaque bottle”. He goes on to say that “nothing happened between the making of the garments and their being worn to change their condition”.

The garment was made by the manufacturer for the purpose of being worn exactly as it was worn in fact by the Appellant. In this case it seems equally clear that KBL manufactured their products for the final consumption by individuals and that there was nothing that could possibly have happened between the making and bottling of the beer and the final consumption of it by the Appellant since the unopened bottle contained the same impurities as the opened ones.

Accordingly, I hold KBL fully accountable, and liable, for negligence and breach of its duty of care to the consumer who is before this Court.

Now, the next issue is the quantum of damages that the Respondent Odoyo is entitled to for the injuries suffered in this case.

As a result of consuming the contaminated beer, the Respondent suffered from vomiting, diarrhoea and stomach pains and was released after eight hours from the clinic after treatment. There are no permanent injuries. The lower court classified this as “soft tissue injury” and awarded Kshs.70,000/= in general damages. KBL says this award is excessive.

Having reviewed the record of the proceedings, and the medical reports produced before the Court, I am satisfied that the injuries suffered by the Respondent have been properly described as “soft tissue injuries” with no permanent disability. The Respondent, of course, had a rather exaggerated view of his injuries, but this Court must be guided by the medical reports, and the award of damages must reflect these injuries, and the award should, as far as possible, be in line with comparable awards in similar cases.

In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini vs A. M. Lubia and Olive Lubia (1982 – 88) 1 KAR 727 at page 730 Kneller J. A. said:

“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango vs Manyoka (1961) E. A. 705, 709, 713, Lukenya Ranching and Farming Co-operatives Society Ltd vs Kalovoto (1970) E. A. 414, 418, 419. This Court follows the same principles.”

These principles are sound, and applicable to this case.

This is clearly a case of very minor injuries, and I am satisfied that the lower court’s award of Kshs.70,000 for general damages was manifestly and inordinately high, and must be reversed. I have taken into account the cases of Lucy Munyoki (supra) and Raphael Mwaniki (supra) where the High Court awarded Kshs.40,000/= and Kshs.30,000/= for injuries that were far more serious than in the case before me. I believe that the proper award for general damages here is Kshs.20,000/=, and I award the same.

The upshot of this appeal is that the lower court’s finding on liability is upheld, as is the award of Kshs.21,990/= for special damages and costs. The lower court’s award of Kshs.70,000 for general damages is set aside and substituted with an award of Kshs.20,000/=.

The total award for damages, both general and special, is Kshs.41,990/=.

As this appeal has succeeded only in part, I award one-third of the costs of this appeal to the Appellant. Those shall be the Orders of this Court.

Dated and delivered at Nairobi this 8th day of August, 2005.

ALNASHIR VISRAM

JUDGE