Bench Bulletin - Issue 12 - Kenya Law Reports

KENYA LAW REPORTS
BENCH BULLETIN
FROM THE COURTS — COURT OF APPEAL
Manufacturer’s Duty of Care to Consumers
Kenya Breweries Ltd v Godfrey Odoyo
Court of Appeal at Nairobi
Civil Appeal 127 of 2007
Bosire, Onyango Otieno & Nyamu JJ.A
April 16, 2010
By Esther Nyaiyaki Onchana
Case History
Appeal from the judgment of the High Court of Kenya at Nairobi (Visram, J.) dated 8th August, 2005 in H.C.C.A. NO.
480 OF 2002
The Hon. Mr. Justice
W. Onyango Otieno
Tort – negligence – damages for injuries suffered due to consumption of contaminated beer –
appeal against liability and damages awarded in the consumer – whether the two lower courts
were wrong in holding beer manufacturer liable – the rule in Donoghue v Stevenson – whether
the principles enunciated in the rule were proved – whether duty of care by the appellant to
the respondent had been established – whether negligence by the appellant if any resulted in
injury to the respondent
Tort – negligence – liability – where the bottle that was analyzed was not the one consumed
by the respondent – appellant alleging that there was no nexus between the contents of the
bottle that was examined and the injury suffered by the respondent – whether report by Kenya
Bureau of Standards was improperly obtained – effect of -
The respondent sought judgement against the appellant in the Chief Magistrate’s Court for
general damages and special damages. He sought this on the grounds that the respondent,
being a beer manufacturer, which manufactured among other brands of beer, the beer brand
of Tusker Malt Larger, (300 ml) on June 23, 2000 put on sale three Tusker Malt Lager bottles which the respondent
bought and partly consumed.
He alleged that the beers did not comply with specifications on foreign matter and clarity and were therefore unfit for
human consumption causing him to suffer severe injuries and special loss. After full hearing, the trial court found the
appellant liable and awarded to the respondent general damages in the sum of Ksh.70,000 for pain and suffering and
a further Ksh.21,990 for special damages in respect of hospital fees paid for treatment.
On appeal, the superior court upheld the trial court’s decision on liability and on
special damages but set aside the award of for general damages and substituted it with
an award for Kshs. 20,000. The appellant filed a second and last appeal at the Court
of Appeal premised on the grounds that the superior court had erred in upholding
the trial court’s finding on liability, in particular that the appellant’s injuries, if any,
were caused by beer manufactured by the appellant. In addition the appellant faulted
the superior court’s finding that the appellant was negligent and that such negligence
resulted in injury to the respondent and that the court failed to follow the principles
laid down in decided cases relating to negligence.
The appellant’s advocate submitted that because the bottle which was submitted for
analysis was not the same bottle consumed by the respondent, there was no evidence
it connected to the respondent. He contended that the principles enunciated in the
well known case of Donoghue v. Stevenson, where injury arose from drinking the
content of a manufactured bottle that contained a snail were, first that there had to
be a duty of care to the respondent by the appellant, secondly, breach of that duty
had to be established, and thirdly that it had to be proved that respondent suffered as a result of the breach of that
duty. It was further submitted, that a report by Kenya Bureau of Standards was improperly obtained because the law
required such a test to be carried out only on the request of the relevant the Minister. He argues that in the instant case
the test was requested done at behest of an advocate.
Issue 12: April-June 2010
53