[2021] KEHC 9630 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CIVIL CASE NO. 8 OF 2014

1. SERULO STEPHEN

2. ZABLON BARASA

3. RICHARD BWIRE SIKUDI.......................................PLAINTIFFS

(Suing on their own behalf and on behalf of 57 others)

VERSUS

1. THE COCA-COLA COMPANY

2. COCA-COLA CENTRAL, EAST AND WEST AFRICA LIMITED

3. EQUATOR BOTTLERS LIMITED..........................DEFENDANTS

JUDGMENT

1. The plaintiffs instituted the present suit by way of a plaint dated 25th September, 2014 and filed on the same date through the firm of J.V Juma & Co. Advocates.

2. The plaintiffs are seeking judgement against the defendants jointly and severally for:

a) General Damages;

b) Costs of this suit; and

c) Interest.

3. Each of the plaintiffs contended that after they had soft drinks manufactured, distributed and sold by the defendants, they became unwell and developed health complications.

4. In their pleading, they particularized the defendants’ negligence and particulars of breach under Paragraph 7 and Paragraph 8 of the plaint respectively. The same are reproduced hereunder:

Particulars of Negligence

a) Manufacturing or producing the said soft drinks in unhygienic and dirty condition;

b) Manufacturing or producing the said soft drinks without due care and attention;

c) Failing to supervise or control their workers during the manufacture or production to the said soft drinks; and

d) Allowing or permitting foreign matter, harmful substances and dirty particles to be manufactured or produced and or bottled with the said soft drinks.

Particulars of Breach

a) Manufacturing or producing sub-standard products;

b) Manufacturing or producing products that failed to meet the requirement of the Kenya Bureau of Standards;

c) Manufacturing or producing products that did not meet the requirement of the Public Health Act;

d) Manufacturing or producing defective and harmful products;and

e) Failing to foresee that their actions would harm the plaintiffs.

5. The particulars of injury are particularized under Paragraph 9 of the plaint as follows:

a) The plaintiffs suffered shock and anxiety;

b) Running stomachs;

c) Headaches; and

d) Vomiting.

6. The 1st and 2nd defendants were represented by the firm of Kaplan & Stratton Advocates. In their defence which was filed on the 27th October 2014 they contended that they did not manufacture or offer for sale any products as alleged by the plaintiffs and therefore no claim would arise against them under either negligence or breach of statutory duty.

7. The 1st and 2nd defendants averred that while the 1st defendant is the registered Trade Mark holder of several soft drink brands including the ones subject matter of this suit, they only produce the ‘Concentrate’ part of the raw material for the production of the soft drinks, which is then sold to its authorized dealers.

8. It is their case that they entered into an agreement with the 3rd defendant who is an authorized bottler, to manufacture, distribute and sell the products under the said brands and that they are indemnified from any negligence or breach thereof.

9. The 1st and 2nd defendants filed a Notice of Claim against the 3rd defendant dated 1st July 2015 and filed on the same date seeking full indemnity on the basis of the provisions of a Bottler’s Agreement dated 1st September 2013. The parties later consented to having the Notice of Claim against co-defendant heard and determined at the same time as the hearing of the case between the plaintiff and the defendants. The signed Consent was filed in court on 25th August 2015.

10. The 1st and 2nd defendants further argued that the court lacks jurisdiction to hear and determine this matter with respect to the 1st defendant.

11. The 3rd defendant averred that it manufactures, produces, bottles and distributes beverages in adherence to food safety standards and quality. They therefore denied the allegation and stated that its food safety and quality is proven since it was granted the permit to use the Diamond Mark of Quality and Standardization Mark for its beverages by the Kenya Bureau of Standards. The Kenya Bureau of Standard also issued Food Safety Management System Certification FSSC 22000:2001 to the 3rd defendant that signified food safety and quality standards during the manufacture, production, bottling and distribution of its beverages from its Kisumu Plant. The 3rd defendant states that it received ISO Certification; ISO 9001:2008, ISO 14001:2004 and OHSAS 18001:2007 for the production and distribution of carbonated soft drinks from the 1st and 2nd defendants.

12. The 3rd defendant has further denied the causal connection between the alleged consumption of contaminated soft drinks and the damages/injury claimed the plaintiff as the damages/injury could have been caused by other prevailing factors.

13. Initially from the pleadings, the 3rd defendant had averred that this court lacked jurisdiction to handle the present suit however from the record, no preliminary objection was raised.

14. The issues for determination are:

a) Whether this court has jurisdiction to hear and determine this suit.

b) Whether each plaintiff has established his/her claim;

c) If so, who is liable to settle the same; and

d) Whether the 1st and 2nd defendants are liable.

15. The defendants herein, in their pleading, claimed that the court has no jurisdiction to hear and determine this suit. In the case of of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] KLR 1 the court of appeal(Nyarangi JA) held as follows

I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.

Since they did not raise this issue beyond pleadings, I am persuaded that they must have abandoned the same and I will proceed to determine the matter.

16. The evidence of Serulo Stephen (PW3)who is the first plaintiff is that on 21st December 2013 while in company of John Osiako he bought four bottles of soda. He drank his bottle of soda half way and felt unwell. He went to hospital on 24th December 2013. He however said that the date on the request form is 30th December 2013. The soda was manufactured by Equator Bottlers. The bottle read, “Product of coca cola. “ He testified that he submitted his soda to the public health officers who said that they would sent the soda to the government chemist.

17. The medical document that this witness produced is dated 30th December 2013. There is nothing to suggest that he had sought treatment on 24th December 2013 as contended.

18. The laboratory notes indicate that salmonella antigen test was positive.

19. Some important issues arise from the evidence of this witness.

i) If indeed he took a soda and felt unwell on 21st December 2013, why did he have to wait until 30th December 2013 to seek treatment?

ii) There was no evidence that the problem that took him to hospital on 30th December 2013 was caused by the soda he took.

iii) The soda which remained after feeling unwell was not analyzed and we cannot therefore make a finding that his complaint on 30th December 2013 was related to the soda he allegedly took.

20. Zablon Barasa Pamba (PW4) is another plaintiff. His evidence was that he bought six bottles of soda on 3rd January 2012. He testified that after taking ugali and greens, he took a Krest soda. Though he complained that he felt unwell after taking the soda, the soda he took was not examined. There is no nexus between the soda and his alleged complaint.

21. John Mutichiro Osiako (PW5) testified that he took the suspected contaminated soda on 21st December 2013 and sought treatment on 3rd January 2014 for food poisoning. Interestingly, he relied on a lab test conducted on 23rd September 2013 three months prior to the consumption of the soda. This appears to be a case of stretching his luck a bit too far. One is also left wondering if indeed the soda was contaminated why he waited for about 13 days to seek treatment. I am persuaded to find that this is not a genuine claim.

22. Nicholas Okumu (PW6) another plaintiff testified that he consumed aa Sprite soda on 6th January 2014 and treated himself by purchasing medicine, presumably over the counter. One is therefore left wondering the basis of the medical report dated 22nd February 2016. I make a finding that the said report has no probative value.

23. Richard Bwire Sikudi (PW15) testified that on 27th December 2012 he went to Mama Toto shop in Funyula and bought Coca cola 500ml which he took. He developed a stomach ache and a headache. He also felt nausea and had a diarrhoea. On the following day he went to hospital. He was treated and given medication. Before he had taken the soda, he had eaten some food. His hospital document shows that when he sought treatment on 28th December 2012, he did not complain to have taken a soda. The investigation that was conducted was for malaria parasites. He only raised an issue of having taken a soda on 8th January 2013. This coupled with the fact that the soda was not analyzed means that he has not established a nexus between his complaint at the health facility and the soda.

24. Justus Wafula Mukhongo (PW14) testified that on 27th December 2012 he went to Omina shop and bought five bottles of soda. At about 2. 30p.m, he took a sprite soda. While drinking, he saw some particles. After about 1 ½ hours he developed a headache, a stomach ache and diarrhoea. He went to a chemist in Funyula and was treated.

25. We may not know the cause of his problems if he had any for pharmacists do not diagnose ailments. The purported soda that gave him problems was not also examined. How can he therefore claim that it was the cause of the problem he had? The following witnesses’ claims will suffer the same fate: Josephat Okello (PW 17), Emmanuel Bagoya (PW 20)), John Wafula Otolo (PW 22), Felix Obonyo (PW 27), Joseph Baraza Juma (PW 31), Rosemary Akochi (PW37)Christopher Ouma Olango (PW 40), Caroline Baraza (PW 41), Amina Yusuf Juma (PW43), Leonard Munara (PW 49), Bossy Alacha (PW 50), Kalasina Barasa (PW 52) Victor Odiwuor Haduba (PW 53) and Kennedy Barasa (PW 54). They all resorted to what they purported to be self-medication without being diagnosed.

26. There is yet another group of claimants, though listed as plaintiffs who also resorted to self-treatment and were not called as witnesses. These are: Siramu Sila, Evans Peter Ojiambo, Jonathan Ngira, Lawrence Onyango Osinya, John K. Owuor, Sarah Nabwire, Hassan Osinya Wandera, Kalisters Okoth, Marilin Sylvia Tengo, Mary Odwor, Moses Wandera, Benson Opiyo, Celestine F. Atieno, Roy Isaac Wandera, Wilberforce Barasa, Joseph Ambuga and Imelda Wanjala. In CMC Aviation Ltd. vs. Cruisair Ltd. (No. 1) [1978] KLR 103; [1976-80] 1 KLR 835, Madan,J (as he then was) expressed himself as follows:

Pleadings contain the averments of the parties concerned. Until they are proved or disproved, or there is an admission of them or any of them, by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation. Until their truth has been established or otherwise, they remain un-proven. Averments in no way satisfy, for example, the definition of “evidence” as anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that it is truth.

In the instant case, I need not add anything to these sentiments in respect of the witnesses who were not called to testify. Their claims cannot stand.

27. Faustine Ogolla Oundo (PW16) on his part testified that at 9. 30 a.m., he consumed one bottle of Fanta soda. At about 1pm he started to feel dizzy, had a headache and stomach ache. He went for treatment at Matayos Health Centre. However, this contradicted his statement which indicated that he bought two bottles of Coca Cola soda. Though he complained at the hospital that he had taken a soda that was suspect, there was no evidence to show that his problem was caused by a soda since the soda was not examined to confirm the suspicion.

28. Isaac Method Okwaro (PW18) testified that he consumed a soda on 27th December 2011. While taking the same, he noticed some particles. The particles were so many and looking at them he felt like vomiting. He developed stomach ache and headache and was sweating. He also developed diarrhoea and vomiting. He sought treatment at Nangina hospital on the following day and at Agenga dispensary on 3rd April 2012. Though he indicated that his problems were caused by the soda, there was no tests done to confirm that indeed it was the soda that had a problem.

29. Fredrick Juma Makokha (PW19) on his part testified that on 16th December 2012 he went to Ado supermarket and bought two bottles of Sprite 500mls. He carried them home and when he was taking one bottle of soda, he saw some particles inside the soda. He started to feel itchy in the throat. He developed a stomach ache and diarrhoea. The following day he went to Nangina dispensary. His treatment record however indicate that he was being treated for hemorrhoids. There is no nexus between the soda he allegedly took and what he was being treated for.

30. Vincent Wandera (PW 21) said that on 21st January 2014 he bought two sprite soda 300ml from Stow – But supermarket. He took them home. At about 4. 30 p.m. he saw particles in the soda. They looked like mucus. After a short while, he developed a headache, stomach ache and later developed a diarrhoea. It is worth noting that this witness did not testify to have drunk the soda. The medical record indicate that on 27th January 2014, he complained of sore throat, headache, a dry cough and dulls. He only talked of having taken a soda which was suspect on 20th February 2014. His evidence paints a picture of a dishonest claimant.

31. Roseline Khamala Oduor (PW23) testified that on 16th January 2012 she went to Mama Jo’s shop and bought 3 sodas of Krest 300ml. She took one at the shop. She felt some substance like mucus. She went back home and about 8 p.m. she developed stomach ache and vomited. She also developed a diarrhoea. She however poured the soda that she had partially drunk. We may not tell whether the problem she had was caused by the soda and whether indeed it had some foreign matters.

32. Seline Auma (PW24) said that on 30th December 2012 she bought 2 bottles of Sprite, 2 bottles of Fanta and 2 bottles of Coca cola. She took the soda home. At about 12. 30 p.m. she opened a Sprite soda and started taking. While taking, she saw some particles in the bottle. After a short while she started to have a headache and stomach ache. At about 7 p.m. she started vomiting and also developed a diarrhoea.

33. Rosemary Achieno Opoti (PW25) on her part testified that on 26th December 2012 she bought 5 bottles of Sprite 50ml. in company of Patrick Barasa. While taking her soda, she found some foreign particles. At about 5. 30 p.m. she developed a headache, vomited, had diarrhoea and felt dizzy. On the following day, she went to hospital and was treated. The report to the doctor was that she had drunk a soda in a party. Catherine Aori Okumu (PW28) was also in the home of Patrick Barasa where there was a party. She said she felt unwell after taking a soda. The soda was not tested nor was any of the food she may have taken tested.

34. Though Juma Gilbert Oduor (PW26) testified that he sought treatment after taking a soda, his treatment notes indicate that he had malaria. He cannot be heard to complain that this was caused by the soda.

35. Kennedy Wabwire (PW29) testified that he took a soda on 1st January 2014 but sought treatment on 24th January 2014. If the soda was contaminated, we could not expect it to take him 23 days before seeking treatment. Like the rest of the plaintiffs, the soda was not tested.

36. Patrick Barasa Makokha (PW30) like his visitors said he felt unwell after taking some suspected contaminated soda. His soda was not tested nor the food that he had offered others and ate as well. There is evidence is that there was a party. We may not be in a position to know the cause of the problems they had.

37. All the other plaintiffs, i.e. James Oduori Ochieng (PW 32), Wilson Ngige Lukiri (PW 33), Moses Barasa Walusale (PW 34), Alice Nangira (PW 35) Humphrey Odaba Budedu (PW 36) Christine Nafula (PW 38) Joseph Taabu (PW 39) Moss Barasa (Pw 42) Chrisantus Owino (PW 44) Morris Gisemba (PW 45) Lawrence Stephen Oduor (PW 51) and George Mugeni Mukudo (PW 55) went to seek treatment after allegedly taking contaminated soda. Just like the rest, the soda was not tested and there is no evidence to link their complaints to the alleged soda they took. In a similar case, Ibrahim J (as he then was) observed in the case of Kenya Breweries Ltd vs. William Kipsang [2007] eKLR:

The Plaintiff in this case had to prove that there was contamination and presence of toxic substances and foreign bodies. I do hold and find that the Plaintiff did not prove that the beer was contaminated, had toxic substances or foreign bodies at the time he drank the beer. Firstly, the Plaintiff did not ensure that the evidence, the bottle and contents were secured and a chain of custody maintained such that he could show that what he produced in court was part of what he had drank over four years previously.

The plaintiffs in this case did not ensure that the evidence, the bottle and contents were secured and the same submitted for analysis. They also did not prove that there was contamination.

38. From the foregoing analysis of evidence, it is clear that there were some reporting in the media of alleged contaminated soda. This was captured in the dailies on 23rd February 2011 The report may have prompted some of the plaintiffs to take advantage and make a complaint hoping to get compensated. This is why the alleged contaminated soda was not presented for analysis. None of the bottles of the soda with the alleged foreign matters was also presented to an independent body.

39. It is evidently clear that none of the plaintiffs has proved his/her claim on a balance of probabilities. Had they proved their claims then it is also clear from the evidence on record that it is the third defendant who ought to have been liable. The role of the first and the second defendants is clear; it is facilitation of the third defendant’s production of the beverages.

40. Having said so, each claim by each plaintiff is dismissed with costs. Right of appeal 30 days.

DELIVERED and SIGNED at BUSIA this 27th day of January, 2021

KIARIE WAWERU KIARIE

JUDGE