Nairobi Bottlers Limited v Ndung’u & another (Civil Appeal 99 of 2018) [2023] KECA 839 (KLR) (7 July 2023) (Judgment)
Neutral citation:
[2023] KECA 839 (KLR)
Republic of Kenya
Civil Appeal 99 of 2018
HM Okwengu, KI Laibuta & JM Mativo, JJA
July 7, 2023
Between
Nairobi Bottlers Limited
Appellant
and
Mark Ndumia Ndung’u
1st Respondent
Coca Cola Central, East & West Africa Ltd
2nd Respondent
(An appeal from the judgment and decree of the High Court of Kenya (Constitutional and Human Rights Division) at Nairobi (Onguto, J.) dated January 30, 2018 in Nairobi Petition No. 325 of 2015)
Absence of label information on glass coca cola soda bottles while providing the same in the plastic bottles amounts to violation of consumer rights and unfair discrimination
The contention in the instant case was that unlike the plastic bottle, the glass bottle of coca cola soda products did not contain; nutritional information, contact information and storage directions. The court held that the Kenya Consumers Protection Advisory Committee could not determine constitutional matters touching on alleged breach consumer rights or any constitutional questions, a mandate conferred by the Constitution to the High Court. The court further noted that the omission of nutritional information, storage and contact information offended article 46 of the Constitution and the Consumer Protection Act. The court also held that the differential treatment of the consumers of coca cola product in glass bottles amounted to unfair discrimination.
Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms - consumer rights - right to information necessary for consumers to gain full benefit from goods and services – claim that the glass coca cola soda bottles did not contain nutritional, storage and contact information - what information should be included in the label information about nutrient content of a product - whether failure to provide nutritional, storage and contact information on the glass coca cola soda bottles violated consumer rights under article 46 of the Constitution and the Consumer Protection Act - Constitution of Kenya, 2010, article 46.Constitutional Law - fundamental rights and freedoms - enforcement of fundamental rights and freedoms - right to equality and freedom from discrimination - whether the failure to provide nutritional, storage and contact information on the glass coca cola soda bottles and providing the same on the plastic bottles amounted to unfair discrimination - Constitution of Kenya, 2010, article 27.Jurisdiction – jurisdiction of the Kenya Consumers Protection Advisory Committee - jurisdiction to determine constitutional matters touching on alleged breach consumer rights or any constitutional questions - whether the Kenya Consumers Protection Advisory Committee could determine constitutional matters touching on alleged breach consumer rights or any constitutional questions - Consumer Protection Act, No 46 of 2012, sections 75, 89 and 90.Constitutional Law – constitutional petitions – institution of constitutional petitions - locus standi (right to sue) - whether a person who had stopped using a product could institute a suit claiming a violation of consumer rights with regard to the product - Constitution of Kenya, 2010, articles 22 and 258.Words and Phrases – discrimination – definition of discrimination - differential treatment; a failure to treat all persons equally when no reasonable distinction between those favoured and those not favoured - Black’s Law Dictionary, 10th Edition.Words and Phrases – differential treatment – definition of differential treatment - a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured - Black’s Law Dictionary, 10th Edition.
Brief facts
The 1st respondent sued the appellant and the 2nd respondent at the trial court claiming that he had discovered a disparity between the information printed on the label of the glass coca cola soda bottles and the plastic bottles containing the same product. He admitted that he stopped taking coco cola soda in 2014 on doctor’s advice. His contestation was that unlike the plastic bottle, the glass bottle had no information showing the nutritional content of the coca cola, krest, fanta, sprite or stoney beverages nor did it have information on customer service telephone and e-mail address or storage directions.It was the 1st respondent’s case that the omissions violated consumer rights under article 46(1) (b) and (c) of the Constitution of Kenya, 2010 (the Constitution). He also claimed that the disparity in the information provided in the same products sold in glass and plastic bottles amounted to treating consumers unequally, which violated article 27(2), (4) and (5) of the Constitution.The trial court found in favour of the 1st respondent and issued among other orders; a declaration that omission of nutritional information and storage directions on the glass bottles constituted a violation of consumer rights and a declaration that the selective provision of nutritional information, directions on storage, customer care mobile number and e-mail address on the plastic bottles while omitting that information from the corresponding glass bottles amounted to discrimination and unequal treatment of consumers. Aggrieved, the appellant filed the instant appeal.
Issues
- Whether failure to provide nutritional, storage and contact information on the glass coca cola soda bottles violated consumer rights under article 46 of the Constitution and the Consumer Protection Act.
- Whether the failure to provide nutritional, storage and contact information on the glass coca cola soda bottles and providing the same on the plastic bottles amounted to unfair discrimination.
- Whether the Kenya Consumers Protection Advisory Committee could determine constitutional matters touching on alleged breach consumer rights or any constitutional questions.
- What information should be included in the label information about nutrient content of a product?
- Whether a person who had stopped using a product could institute a suit claiming a violation of consumer rights with regard to the product.
Relevant provisions of the Law
Constitution of Kenya, 2010Article 46 - Consumer rights(1) Consumers have the right—(a) to goods and services of reasonable quality;(b) to the information necessary for them to gain full benefit from goods and services;(c) to the protection of their health, safety, and economic interests; and(d) to compensation for loss or injury arising from defects in goods or services.
Held
1. As the matter was a first appeal, the court proceeded by way of a re-hearing, at the end of which it made its own independent conclusions of law and fact. The court accorded respect to the findings of the first instance court but would not hesitate to depart from those findings if the same were not based on evidence, were arrived at by way of a misapprehension of the evidence or the trial court misdirected itself in some material respect which rendered the decision erroneous. The instant court’s latitude to depart was greater where, as in the instant case, the matter in the court below proceeded not on the basis of oral evidence, which would have given the trial court the clear advantage of hearing and observing witnesses as they testified, but by way of affidavits and submissions which were on record. That was more so where the decision turned on, not so much the peculiarity of highly contested facts, but rather the interpretation of certain provisions of the Constitution.2. From a reading of sections 75, 89 and 90 of the Consumer Protection Act, none of the provisions created a forum capable of resolving the issues raised in the petition before the trial court. Sections 75, 89 and 90 or any other provision of the Act did not support the argument that the petition before the trial court was pre-mature. Accordingly, the suit before the trial court was not pre-mature nor did it offend the doctrine of exhaustion. The committee established under the Act (Kenya Consumers Protection Advisory Committee) could not, by any stretch of imagination determine constitutional matters touching on alleged breach consumer rights or any constitutional questions, a mandate conferred by the Constitution to the High Court. 3. Articles 22 and 258 of the Constitution seriously eroded the hitherto eminent common law principle of locus standi. Under both articles, proceedings could be instituted by the aggrieved party on its own interest, by a person acting on behalf of another person, on behalf of a class of people, in public interest or by an association acting on behalf of its member or members. The test was whether the person moving the court fell under any of the categories enumerated in the provisions. No argument was advanced to suggest otherwise.4. Under no circumstances could the court properly directing its mind accept an invitation to agree to a judicial standard for locus standi that inhibited the right to bring proceedings under articles 22 and 258 of the Constitution. Such an interpretation would be a direct affront to the letter and spirit of the Constitution. It would be a clear breach of articles 48 and 50 of the Constitution, except only when the litigation was hypothetical, abstract or was an abuse of the judicial process. The standard guide for locus standi must remain the command in articles 22 and 258.5. Although consumer rights affected only the parties, their impacts and consequences were substantial, broad-based, transcending the litigation interests of the parties, and bearing upon the public interest. Accordingly, consumer rights litigation was not a game of win-or-lose in which winners must be identified for reward, and losers for punishment and rebuke. Conversely, litigants and the courts asserted the growing power of the expanded Bill of Rights (thanks to Kenya’s transformative and progressive Constitution) by establishing its meaning through contested cases in a process.6. The entrenchment of the right to access justice, and the right to approach the court to enforce the Bill of Rights blurred the common law principle of locus standi. Parties, who were ordinarily denied access to courts for want of locus standi premised on personal interest, should access courts provided the person, body or association fell within the descriptions in articles 22 and 258 of the Constitution. The right to access courts was deeply entrenched in the Constitution. It was no longer a common law prerogative. Accordingly, the 1st respondent had the locus standi to file the petition.7. In peremptory terms, the Constitution imposed an obligation on all courts to promote the spirit, purpose and the objects of the Bill of Rights, when interpreting the Constitution. Unlike other statutory enactments, the Consumer Protection Act provided in mandatory terms the manner in which it ought to be construed.8. Section 4 of the Consumer Protection Act provided that the purposes of the Act were to promote and advance the social and economic welfare of consumers in Kenya. From the definition of a consumer in section 2 of the Consumer Protection Act and the preamble to the Act, the whole tenor of the Act was to protect consumers. The Act must be interpreted keeping in mind that its focus was the protection of consumers.9. The general principle governing the determination of cases was that the party who alleged or, as it was sometimes stated, the party who made the positive allegation, had to prove. Moreover, the onus on the petitioner to establish violation of alleged consumer rights was not a mere formality; it was important.10. The fundamental principle was that such interpretation as would serve the interests of the Constitution would best carry out its object and purpose should be preferred. Where the provisions of the law were capable of two meanings the court must choose the meaning that would give effect to the Constitution and promote its purpose. Thus, constitutional interpretation should be purposive. Rights should be interpreted in accordance with the general purpose of having rights, namely the protection of individuals and minorities against an overbearing collectivity. It was not the duty of the court to construe any of the provisions of the Constitution to defeat the obvious ends the Constitution was designed to serve.11. Article 46 of the Constitution and the Consumer Protection Act imposed explicit requirements for the content of food labels, which manufacturers were not free to ignore. Those requirements included the nutritional label, which must include the name of the food, the disclosure of the quantity of contents, the name and place of business of the manufacturer or distributor, a list of their ingredients and nutrition information. Nutritional label could be defined as a description used to inform the customer about the nutritional properties of food, which also helped the customer in purchasing nutritious food and consuming nutritionally balanced meals.12. The label information about nutrient content must as of necessity conform with article 46(1)(b) of the Constitution which guaranteed a consumer the right to the information necessary for a consumer to gain full benefit from the goods and services. In the minimum, the nutrition labelling should; -
- provide consumers with nutrition information about the food product;
- enable consumers to compare the nutritional quality of products from the same food group;
- enable consumers to choose among products from different food groups based on nutritional quality;
- prevent or reduce consumer deception by providing information about the nutrient composition of the product; and
- provide incentives to improve food products by requiring manufacturers to describe fully the ingredients and nutrient value of their products.
Appeal dismissed; judgment and decree of the trial court delivered on January 30, 2018 upheld.
Orders
No order as to costs.
Citations
Cases
- Federation of Women Lawyers Kenya (FIDA) v Attorney General & Initiative for Strategic Litigation in Africa (ISLA) (Petition 164B of 2016; [2018] KEHC 7130 (KLR)) — Explained
- Geoffrey Muthinja & Robert Banda Ngombe v Samuel Muguna Henry, John Jembe Mumba, John Maroo, John Columbus Gikunda M’mwanjah, Bernard Njiru Arozon, Samuel Chivatsi Munga, James Marangu M’muketha & 1750 others (Civil Appeal 10 of 2015; [2015] KECA 304 (KLR)) — Explained
- Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019; [2021] KESC 12 (KLR)) — Explained
- In the matter of Gender Representatives in The National Assembly and Senate ((2012) eKLR) — Explained
- James Kuria v Attorney General & 3 Others ((2018) eKLR) — Explained
- Michael Osundwa Sakwa v The Chief Justice and President of the Supreme Court of Kenya ((2016) eKLR) — Explained
- Mohamed Fugicha v Methodist church in Kenya (tuing through its registered trustees) , Teachers Service Commission, County Director of Education Isiolo County & District Education Officer Isiolo Sub-County (Civil Appeal 22 of 2015; [2016] KECA 273 (KLR)) — Explained
- Mohammed Abduba Dida v Debate Media Limited & Media Council of Kenya (Civil Appeal 238 of 2017; [2018] KECA 642 (KLR)) — Explained
- Mumo Matemu v Trusted Society of Human Rights Alliance, Attorney General, Minister of Justice & Constitutional Affairs, Director of Public Prosecutions, Kenyan Section of the International Commission of Jurists & Kenya Human Rights Commission (Civil Appeal 290 of 2012; [2013] KECA 445 (KLR)) — Explained
- Rev Dr Timothy M Njoya & 6 others v The Hon attorney General & 4 others (? 82 of 2004; [2004] KEHC 1467 (KLR)) — Explained
- Speaker of the National Assembly v Karume (Civil Application 92 of 1992; [1992] KECA 42 (KLR)) — Explained
- Twaher Abdulkarim Mohammed v Mwathethe Adamson Kadenge, Independent Electoral & Boundaries Commission (IEBC) & Hamisi Halfani Tsumo (Civil Appeal 45 of 2015; [2015] KECA 153 (KLR)) — Explained
- Lyomoki & Others v Attorney General ((2005) E. A. 127) — Explained
- City Council of Pretoria v Walker ((1989) ZACC 1) — Applied
- Natal Joint Municipal Pension Fund v Endumeni Municipality ((2012) ZASCA 13; 2012 (4) SA 593 (SCA)) — Explained
- Pharmaceutical Manufacturers Association of South Africa in Re Ex Parte President of the Republic of South Africa & Others (2000 (2) SA 674 (CC)) — Explained
- Phumelela Gaming and Leisure Ltd v Gründlingh and Others ((2006) ZACC 6; 2007 (6) SA 350 (CC); 2006 (8) BCLR 883 (CC)) — Explained
- South African Constitutional Court decision in Harksen v Lane No & Others ((1997) ZACC 12) — Explained
- Essop & Ors v Home Office; Naeem v Secretary of State for Justice ((2017) UKSC 27) — Explained
- Sarka Angel Walkins Singh v the Governing Body of Aberdare Girls High School & Another ((2008) EWHC 1865) — Applied
- Constitution of Kenya, 2010 (2010) — article 21, 22, 27 (2) (4) (5), 35 (1) (b), 46 (1)(b), 48, 50, 258 — Interpreted
- Consumer Protection Act, 2012 (Act No 46 of 2012) — section 2, 75, 87, 89, 90 — Interpreted
- Evidence Act (cap 80) — section 107 (1) (2), 109 — Interpreted
- Food, Drugs And Chemical Substances Act (cap 254) — In general — Cited
- Standards Act (cap 496) — section 9 — Interpreted
- Garner, BA. (2014), Black’s Law Dictionary (St Paul, Minnesota: Thomson Reuters 10th Edn)
Judgment
1.This is an appeal from the judgment and decree of the High Court (Constitutional and Human Rights Division) at Nairobi (Onguto, J), delivered on January 30, 2018, in Nairobi High Court Constitutional Petition No 325 of 2018. The appellant, Nairobi Bottlers Limited, was the 1st respondent in the said case. Aggrieved by the impugned judgment, the appellant seeks to overturn it citing a whopping 24 grounds, abridged later in this judgment. The 1st respondent, Mark Ndumia Ndung’u, was the petitioner in the said case. M/s Coca Cola Central, East & West Africa Ltd, the 2nd respondent, was also the 2nd respondent before the trial court.
2.By a constitutional petition dated July 31, 2015, the 1st respondent sued the appellant and the 2nd respondent at the High Court, Constitutional and Human Rights Division, claiming that he had discovered a disparity between the information printed on the label of the glass Coca Cola soda bottles and the plastic bottles containing the same product. He claimed that his preference was the Coca Cola sold in glass bottles. By his own admission, he stopped taking Coco Cola Soda in 2014 on doctor’s advice after he was diagnosed with ulcers. His contestation was that unlike the plastic bottle, the glass bottle had no information showing the nutritional content of the Coca Cola, Krest, Fanta, Sprite or Stoney beverages nor did it have information on customer service telephone and e-mail address or storage directions. He claimed that the missing nutritional information was essential to enable consumers to know the benefits derivable from the consumption of the beverages. Further, he claimed that the e-mail address and phone numbers were essential to enable consumers give feedback, to make enquiries and complaints, and to obtain optimum benefit from the said products. In addition, he claimed that the storage directions that the glass bottle should be stored in a cool dry place were also missing. It was his case that the said omissions violated consumer rights under article 46(1)(b) and (c) of the Constitution. Further, that the omission to provide contact details offended article 35(1)(b) of the Constitution. He also claimed that the disparity in the information provided in the same products sold in glass and plastic bottles amounts to treating consumers unequally, which violates article 27(2), (4) and (5) of the Constitution.
3.In his petition, the 1st respondent sought the following orders:a.a declaratory order that the respondent’s omission of the nutritional value on the Coca Cola, Fanta, Krest, Stoney and Sprite glass bottle prejudices the health of consumers as safeguarded in article 46(1)(c) of the ;b.a declaratory order that the respondents’ omission of the nutritional information, directions on storage, customer care mobile number and e-mail address on the Coca Cola, Fanta, Krest, Stoney and Sprite glass bottle is contrary to article 46(1)(b) of the Constitution as it denies the respondents’ consumers the right to information necessary to gain full benefit of the products;c.a mandatory order compelling the respondents to display the nutritional value, storage directions, customer care e-mail address and phone number on the Coca Cola, Fanta, Krest, Stoney and Sprite glass bottles;d.a declaratory order that the respondents’ omission of the nutritional information, directions on storage, customer care mobile number and e-mail address on the Coca Cola, Fanta, Krest, Stoney and Sprite glass bottle while availing the information on the corresponding plastic bottles amounts to discrimination and the unequal treatment of the glass bottle consumers, and is contrary to article 27(2), (4) and (5) of the Constitution; ande.an order for compensation of the petitioner for discrimination.
4.The appellant opposed the petition through an affidavit sworn by one Cyrus Gitau on April 4, 2016. The appellant’s case was that it was a franchise bottling and marketing the impugned beverages under the license of the Coca Cola Company. Nevertheless, it was of the view that the petition was fanciful and the 1st respondent did not justify inclusion of its name in the petition. It was also the appellant’s case that the 1st respondent was not a consumer of Coca Cola products and was therefore a stranger to the petition.
5.In response to the 1st respondent’s claims, the appellant stated that the Coca Cola crown glass bottle caps indeed bore the physical and postal address of the manufacturer, brand of trade name, as well as optional ingredients such as carbonated water, sugar, colour, caramel, acidulate, phosphoric acid, flavoring and caffeine. It was the appellant’s case that the information necessary for consumers to gain full benefit from goods and services provided under section 87 of the Consumer Protection Act regulates any disclosure of information by suppliers to consumers.
6.Concerning the difference in price between the beverages packed in glass bottles on one hand and plastic bottles, the appellant submitted that the difference in pricing was because the glass bottles are re-usable while plastic bottles are not re- usable.
7.The 2nd respondent opposed the petition vide affidavits sworn by Antoinette Absalom on October 14, 2015, and March 24, 2016. It was the 2nd respondent’s case that the Petition did not disclose a valid cause of action against it since it is a service company mandated to market and promote Coca-Cola Company brands, and was not involved in the production, manufacture or packaging of any beverage.
8.In response to the issue of labelling, the 2nd respondent maintained that the 1st respondent had no cause of action against it since the 1st respondent had not set out with a reasonable degree of precision his complaints, the provisions said to have been infringed, and the manner in which they are alleged to have been infringed. The 2nd respondent further contended that the food labels on all the 2nd respondent’s beverage brands in Kenya complied with the food labelling requirements under the Food, Drugs and Chemical Substances Act. It maintained that the existing labels provide the brand, trade name, common name of the food, correct declaration of the net contents in weight, volume or number and as well as the name and address of the manufacturer, packer or distributor of the food. Further, it stated that it had complied with the Kenya Standard KS EAS 29:200: Carbonated (Beverages) Soft Drinks–Specification requirements on the date of manufacture as well as the expiry date. In addition, it stated that it had provided the brand, trade name, common name of the food, correct declaration of the net contents in weight, volume or number and as well as the name and address of the manufacturer, and packer or distributor of the food. It was also the 2nd respondent’s case that the global commitment by the Coca Cola Company to provide nutritional information is not binding on it because it is a separate entity and that, therefore, it was wrongly sued. Furthermore, the 1st respondent did not demonstrate that he requested for the information, and that the request was declined.
9.In the impugned judgment, the trial court identified and determined the following issues:i.whether the petitioner had standing to bring the petition;ii.whether the petitioner failed to set out his complaint with a reasonable degree of precision;iii.whether the petitioner’s failure to exhaust alternative remedies, if at all, is fatal to the petition;iv.whether the petitioner has a right to the nutritional and contact information sought in the petition;v.whether the difference in nutritional information contained on the packaging of the plastic and glass bottle beverages is discriminatory;vi.is the petitioner entitled to any costs (sic); andvii.who should bear the costs of this petition?
10.The learned judge found in favour of the 1st respondent and issued the following orders:a.a declaration that omission of nutritional information and storage directions on Coca Cola, Fanta, Krest, Stoney and Sprite brands glass bottles constitutes a violation of consumer rights under article 46(1) (a), (b) and (c) of the Constitution;b.a declaration that the respondents’ selective provision of nutritional information, directions on storage, customer care mobile number and e-mail address on the Coca Cola, Fanta, Krest, Stoney and Sprite brands plastic bottles while omitting that information from the corresponding glass bottles amounts to discrimination and unequal treatment of consumers contrary to article 27(2), (4) and (5) of the Constitution;c.a mandatory injunction directing the respondents to provide nutritional information, storage directions and customer care mobile number and e-mail address on all of their Coca Cola, Fanta, Krest, Stoney and Sprite brands glass bottles within six (6) months of the date of delivery of this judgment; andd.that each party shall bear its own costs of the petition.
11.The appellant cites the following grounds in this appeal, contending that the learned judge erred in: (a) finding that the 1st respondent demonstrated breach of fundamental rights; (b) elevating the appellant’s gratuitous exercise of providing nutritional information and contact addresses on its plastic bottles to the status of a constitutional violation under article 46(1) of the Constitution; (c) finding that the different details in information provided to a consumer on separate containers in which a product is sold constituted discrimination under article 27 of the Constitution; (d) failing to appreciate that not every differentiation amounts to discrimination; (e) misinterpreting the provisions of article 46 of the Constitution and expanding the appellant’s obligations beyond the requirements set out in the Consumer Protection Act, the Food, Drugs and Chemical Substances Act, and the Standards Act; (f) wrongly interpreting the definition of a supplier under the Consumer Protection Act and arriving at a wrong decision;(g)taking judicial notice of the fact that there was prevalence of non-communicable and nutritional related diseases in the absence of actual evidence;(h)improperly introducing new material in the course of writing the judgment and deciding on the same without giving the parties an opportunity to comment on the same, thereby breaching the appellant’s right to a fair hearing under article 50 of the Constitution ;(i)disregarding the parties’ evidence and submissions;(j)finding that the 1st respondent had the locus standi to institute the proceedings;(k)finding that the alternative remedies contemplated by the statutes were not effective;(l)delaying the judgment for more than one year, thereby compromising the legitimacy and quality of the judgment;and(m)in delivering an internally inconsistent judgment.
12.The appellant beseeches this court to allow the appeal and set aside the judgment dated January 30, 2018, in its entirety. It also prays that this court dismisses the 1st respondent’s petition in the High Court and award it costs of this appeal and of the petition in the High Court.
13.The appellant and the 2nd respondent filed written submissions, which they highlighted orally when the appeal came up for hearing on February 14, 2023. The 1st respondent did not file any submissions, and neither did he attend court despite having been duly served with the hearing notice. Mr George Oraro, SC led the appellant’s legal team comprising of Mr Omoga and Mr Wathuta, while learned counsel Ms Weru held brief for Mr Karori for the 2nd respondent.
14.Mr Oraro, SC advanced 5 grounds, namely: (i) whether the respondent proved breach of fundamental rights; (ii) whether the respondent had an alternative remedy; (iii) whether nutritional information and storage directions is a fundamental right under article 46(1)(a), (b) and (c) of the Constitution; (iv) whether the difference in the information provided on the packaging of the plastic and glass bottles amounts to discrimination; and (v) which party is liable for costs.
15.Senior counsel argued that the 1st respondent admitted that he ceased consuming the appellant’s brands and, considering that there was no complaint by any consumer on the appellant’s brands, the 1st respondent lacked sufficient interest to initiate the petition, nor did he satisfy the requirements of articles 21 or 258 of the the Constitution. To buttress his argument, senior counsel relied on Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya (2016) eKLR where the High Court held:
16.He also cited James Kuria v Attorney General & 3 others (2018) eKLR in which the High Court stated that the Consumer Protection Act must be interpreted keeping in mind the definition of a consumer. The court in that case also defined a consumer as a person who buys goods and services, as well as persons acting on their behalf, or uses products bought by consumers. The appellant submitted that the 1st respondent had no basis bringing the petition, having stopped taking the appellant’s beverages four years before the petition.
17.On the question as to whether the 1st respondent had a fundamental right as a customer to nutritional storage and contact information as sought, Mr Oraro, SC contended that article 46(2) places the responsibility of formulating appropriate policy framework and legislation on Parliament. It was his position that, in exercise of the said mandate, Parliament enacted the Consumer Protection Act to complement other existing legislation. Counsel relied on the Supreme Court holding in Advisory Opinion No 2 of 2013: In the Matter of Gender Representatives in the National Assembly and Senate (2012) eKLR that Parliament must be allowed to discharge its functions. He also cited this courts dictum in Mumo Matemu v Trusted Society of Human Rights Alliance & others (2013) eKLR that the court must show deference to the independence of the legislature, and that courts must exercise restraint and only intervene in appropriate instances bearing in mind the circumstances of each case.
18.Further, Mr Oraro, SC submitted that the scope of information a supplier is required to provide as set out under section 87(1) of the Consumer Protection Act, is that the disclosure should be clear, comprehensible and in conformity with the Standard Act. He argued that it is not the right of a consumer or the court to extend the scope of the said obligation, and underscored that the 1st respondent was obligated to demonstrate how the appellant failed to comply with those statutory provisions.
19.On the question as to whether the difference in information on the packaging of the plastic and glass bottles was discriminatory, senior counsel submitted that the right to equality and non-discrimination guaranteed under article 27 of the Constitution is the right of persons and not products. Further, whether to buy beverages in a glass or plastic bottle is a consumer’s discretion, and, therefore, it does not in any way amount to discrimination. He contended that the 1st respondent neither alleged nor proved that any category of persons were denied access to products packaged in either plastic or glass bottles. Additionally, counsel cited the South African Constitutional Court decision in Harksen v Lane No & others (1997) ZACC 12, which set out a three-stage enquiry for ascertaining whether discrimination had been proved as follows:
20.It was counsel’s submission that whenever a person alleges any violation or breach of a fundamental right, he must adduce evidence in support of the allegation. He argued that the appellant was not obligated to do anything until a case was made out which required to be met.
21.Regarding the existence of an alternative remedy, Mr Oraro, SC argued that not every dispute is constitutional and, therefore, the drafters of the Constitution left the right and obligation to protect consumer rights to Parliament which, under article 46(2) of the Constitution, enacted the Consumer Protection Act. He argued that the said statute is comprehensive and not only addresses the rights and protection of the consumers, but also provides an efficacious dispute resolution procedure under section 4 of the Act.Counsel maintained that the doctrine of constitutional avoidance arises in this case and urged that the 1st respondent’s claim ought to have been resolved within the provisions of the statute, and not as a constitutional petition. To buttress his submission, he cited this court’s decision in Speaker of The National Assembly v James Njenga Karume (1992) eKLR where the court held that:
22.Finally, senior counsel concluded by arguing that the 1st respondent failed to prove any of the allegations made in the petition. He maintained that the court erred in placing a burden on the appellant, which is not the case for manufacturers of other beverages. He urged this court to allow the appeal with costs.
23.The 2nd respondent’s counsel Ms Weru consolidated the grounds of appeal numbers 2, 3, 4, 8, 9, 10, 11, 12 & 24 relating to the order by the trial judge requiring the appellant and the 2nd respondent to provide nutritional information and storage directions on the Coca Cola, Fanta, Krest, Stoney and Sprite glass bottles. Counsel submitted that in making the said order, the learned judge either misunderstood or misconstrued the provisions of the various statutes, since a plain reading of article 46 of the Constitution demonstrates that there is no specific reference to the type of information to be provided to consumers. Counsel argued that the learned judge proceeded on an erroneous premise or understanding of the law, which resulted in an error meriting this Court to interference.
24.With regard to section 87 of the Consumer Protection Act, Ms Weru submitted that the learned judge wrongfully found that the Consumer Protection Act “does not require the disclosure of any specific kind of information.” Counsel described the said finding as a serious misdirection because the statute makes specific reference to and adopts the standards set out under section 9 of the Standards Act and regulation 6.2 of Kenya Standard KS EAS 29:2000. She urged that the learned judge failed to appreciate that the beverages the subject of these proceedings have no mandatory nutritional labelling requirement under the Standards Act. To buttress this submission, counsel cited Twaher Abdulkarim Mohammed v Mwathethe Adamson Kadonge & 2 Others (2015) eKLR where this court stated:
25.On the Food, Drugs and Chemical Substances Act, counsel submitted that the learned judge fell into error when he failed to consider or take into account Regulation 4 of the Food, Drugs and Chemical Substances (Food Labelling, Additives and Standards) Regulations, 1978. The said regulation requires manufacturers to only provide: brand or trade name; common name of the food; correct declaration of the net contents in weight, volume and number; and name and address of the manufacturer, packer or distributer of the food.” Counsel argued that the learned judge applied different standards when dealing with the requirement to provide nutritional information. She submitted that, had the learned judge considered and analyzed the relevant provisions of the two statutes, he would have concluded that there is no statutory obligation requiring mandatory nutritional labelling.
26.Ms Weru also submitted that, despite the learned judge acknowledging (para 73 of the judgment) that there was no legal obligation to provide an e-mail or phone address to consumers under the Standards Act and the Food, Drugs and Chemical Substances Act, he nevertheless directed that the same be provided. She argued that the said finding was an impermissible misdirection because it amounted to enlarging the scope of a statute. To buttress her submissions, counsel cited Federation of Women Lawyers Kenya (FIDA) v Attorney General & Another (2018) eKLR where it was held:
27.Further, Ms Weru submitted that the 1st respondent failed to identify the specific provisions of article 46 of the Constitution, the Consumer Protection Act, the Standards Act and the Food, Drugs and Chemical Substances Act, requiring disclosure of nutritional information, storage directions, customer care mobile number and e-mail address. She submitted that the 1st respondent failed to discharge its burden of proof to the required standard or at all, and so the impugned decision was in the circumstances wrong. She further maintained that, other than making bare allegations, the 1st respondent did not provide any or any sufficient evidence of unlawful or unfair differential treatment. Accordingly, the learned judge erred in law by purporting to shift the burden of proof to the appellant and the 2nd respondent to show why the alleged discrimination was reasonable and justifiable in an open and democratic society.
28.Regarding the finding that failure to provide customer service mobile numbers, e-mail address, nutritional information and storage directions on the glass bottles amounted to discrimination (paragraph 84 of the judgment), she argued that the learned judge failed to inquire whether the action complained of(i)differentiated between different classes ofpersons;(ii)whether the differentiation amounted to discrimination; and(iii)whether the discrimination was unfair. She argued that not all-differential treatment amounts to discrimination. She underscored the fact that the Constitution only prohibits unfair discrimination and not mere discrimination as was stated by the High Court in Mohammed Abduba Dida v Debate Media Ltd & another (2017) eKLR that “the right to equality does not prohibit discrimination but it prohibits unfair discrimination.”
29.Counsel also submitted that, by focusing on the price differentiation, the learned judge failed to appreciate that the determination of prices is based on many commercial factors, and that the differentiation cannot by itself constitute unfair discrimination. She argued that the learned judge took into account the wrong principles and failed to take into account relevant considerations, which would have entailed the three- step enquiry set out above and thus arrived at the wrong decision.
30.Ms Weru maintained that the 2nd respondent was wrongly sued because it was not involved in the production, manufacture or packaging of the Coca Cola Company products, but only had a licence to market the Coca Cola brands. She argued that the learned judge wrongly held that, as marketer of the Coca Cola Brand, the 2nd respondent fell within the definition of a supplier under section 2 of the Consumer Protection Act and, therefore, article 46 bound it. Accordingly, the finding that the 2nd respondent was a supplier of the Coca Cola brand within the meaning of Section 2 of the Consumer Protection Act is wrong and ought to be set aside.
31.On whether the 1st respondent had locus standi to institute the proceedings, and whether he was not required to exhaust statutory remedies, Ms Weru submitted that the learned judge failed to take into account that no notice was issued under section 75 of the Consumer Protection Act. She argued that sections 89 and 90 of the said Act establishes the Consumer Protection Advisory Committee, whose role includes, inter alia, creating or facilitating the establishment of conflict resolution mechanisms on consumer issues, investigation of any complaints received regarding consumer issues and, where appropriate, referring the complaint to the competent authority, and ensuring that action is taken by the competition authority to whom the complaint has been referred. Consequently, counsel argued that the petition in the High Court was premature and it ought to be dismissed. She relied on this court’s decision in Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & Others (2015) eKLR where the court held that where a dispute resolution mechanism exists outside courts, the same ought to be exhausted before invoking the court’s jurisdiction. Further, courts ought to be fora of last resort and not the first port of call.
32.In conclusion, Ms Weru, referring to paragraph 66 of the judgement where the learned judge relied on an article by Nelene Keen on Food and Nutrition Labelling, argued that the said article was not provided by any of the parties, nor were the parties given an opportunity to comment or distinguish the same. Consequently, she argued that the 2nd respondent’s right to a fair hearing was compromised because it was denied the opportunity to comment on the said article. Nevertheless, she argued that the said article could not override the clear statutory requirements on labelling (as contained in the Food, Drugs and Chemical Substances (Food Labelling, Additives and Standards) Regulations, 1978 and the Standards Act) which do not require provision of nutritional information.
33.In determining this appeal, we bear in mind our duty as an appellate court as was neatly stated by this court in Mohamed Fugicha v Methodist Church in Kenya (suing through its registered trustees) & 3 Others (2016) eKLR that:
34.First, we address the appellant’s argument that the petition before the High Court was premature because the 1st respondent failed to exhaust the dispute resolution mechanism under the Consumer Protection Act before approaching the High Court. Addressing this issue, the learned judge stated as follows:
35.We have carefully considered the provisions of sections 75, 89 and 90 of the Consumer Protection Act. A reading of these sections reveals that none of the said provisions creates a forum capable of resolving the issues raised in the petition before the High Court. For example, section 75 provides that Part IX of the Act does not apply to remedies claimed in respect of unfair practices under Part III. Clearly, the said section is irrelevant in that it does not create a forum capable of resolving the issues raised in the Petition.
36.True, section 89 establishes a committee known as the Kenya Consumers Protection Advisory Committee. Its functions are enumerated in section 90(a) to (n) of the Act. As the learned judge correctly stated in the above excerpt, none of the functions under the foregoing section confers the said Committee the mandate to adjudicate matters relating to breach of constitutional rights provided under article 46 of the Constitution. Even if there was any doubt as to the applicability of the doctrine of exhaustion under the act, section 84 of the Act clearly settles the position beyond question. It provides as follows:
37.Therefore, we find that the above-cited sections of the Act or any other provision of the Act does not support the argument that the petition before the High Court was pre-mature. Accordingly, we find and hold that the suit before the High Court was not pre-mature nor did it offend the doctrine of exhaustion. The committee established under the Act cannot, by any stretch of imagination determine constitutional matters touching on alleged breach consumer rights or any constitutional questions, a mandate conferred by the Constitution to the High Court.
38.We now turn to the issue as to whether the 1st respondent had the locus standi to institute the petition in light of his admission that he was not a consumer of the Coca Cola brand products. In determining the said issue, the learned Judge stated as follows:
39.In support of the appellant’s case, Mr Oraro, SC cited Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another (Supra) and argued that by dint of the admission by the 1st respondent that he no longer consumed Coca Cola Sodas, he had no business bringing the petition because he lacked the locus standi. Two things are worth mentioning. One, the above decision cited by the appellant’s counsel is a High Court decision, and is not binding on this court. Second, and more important, the position urged by the appellant’s counsel while citing the above case does not reflect the holding in the said case. Conversely, after reviewing numerous decisions and article 258 of the Constitution, the learned Judge (Odunga, J (as he then was)) stated as follows:
40.Articles 22 and 258 of the Constitution seriously eroded the hitherto eminent common law principle of locus standi. Under both articles, proceedings may be instituted by the aggrieved party on its own interest, by a person acting on behalf of another person, on behalf of a class of people, in public interest or by an association acting on behalf of its member or members. In our view, the test is whether the person moving the court falls under any of the categories enumerated in the said provisions. No argument was advanced before us to suggest otherwise. Under no circumstances can this court properly directing its mind accept an invitation to agree to a judicial standard for locus standi that inhibits the right to bring proceedings under articles 22 and 258. Such an interpretation will be a direct affront to the letter and spirit of the Constitution. It will be a clear breach of articles 48 and 50 of the Constitution, except only when the litigation is hypothetical, abstract or is an abuse of the judicial process.The standard guide for locus standi must remain the command in articles 22 and 258 of the Constitution. (See this court’s decision in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (2013) eKLR).
41.As the learned judge correctly observed, the 1st respondent pleaded in his petition that he brought the petition in public interest. Although consumer rights affect only the parties, their impacts and consequences are substantial, broad-based, transcending the litigation interests of the parties, and bearing upon the public interest. Accordingly, consumer rights litigation is not a game of win-or-lose in which winners must be identified for reward, and losers for punishment and rebuke. Conversely, litigants and the courts assert the growing power of the expanded Bill of Rights (thanks to our transformative and progressive Constitution) by establishing its meaning through contested cases in a process.
42.The right to access justice, the right to enforce the bill of rights, and enforcement of the Constitution}, are deeply entrenched in our Constitution. As the Constitutional Court of South Africa stated, (though in the context of addressing the traditional common law principles governing judicial review and the entrenchment of judicial review under the South African Constitution) in Pharmaceutical Manufacturers Association of South Africa In re Ex Parte President of the Republic of South Africa & others 2000 (2) SA 674 (CC) at page 33:
43.The court went further to say that there are not two systems of law, each dealing with the same subject matter, each having similar requirements, each operating in its own field with its own highest court. Rather, there was only one system of law shaped by the Constitution, which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.
44.The entrenchment of the right to access justice, and the right to approach the court to enforce the bill of rights blurred the common law principle of locus standi. Parties, who were ordinarily denied access to courts for want of locus standi premised on personal interest, should now access courts provided the person, body or association falls within the descriptions in articles 22 and 258. The right to access courts is now deeply entrenched in the Constitution. It is no longer a common law prerogative. Accordingly, we find and hold that the 1st respondent had the locus standi to file the petition.
45.Next, we address the issue as to whether the omission to provide nutritional contents of Coca Cola soda and storage directions on the glass and plastic soda bottles constitutes a breach of consumer rights guaranteed under article 46(1)(b) and (c) of the Constitution.
46.Resolving the above issue involves interpreting the relevant constitutional and statutory provisions. In peremptory terms, the Constitution imposes an obligation on all courts to promote the spirit, purpose and the objects of the Bill of Rights, when interpreting the Constitution. In Phumelela Gaming and Leisure Ltd v Gründlingh and Others (2006) ZACC 6; 2007 (6) SA 350 (CC); 2006 (8) BCLR 883 (CC) the South African Constitutional court observed:
47.Article 46(1) of the Constitution provides that consumers have the right to goods and services of reasonable quality, to the information necessary for them to gain full benefit from goods and services, to the protection of their right, safety, and economic interests, and to compensation for loss or injury arising from defects in goods and services. Sub-article (2) provides that Parliament shall enact legislation to provide for consumer protection, fair honest and decent advertising. To give effect to the above article, Parliament enacted the Consumer Protection Act. Article 46(3) provides that the article applies to goods and services offered by the public entities or private persons.
48.The preamble to the Consumer Protection Act provides that it is "An Act of Parliament to provide for the protection of the consumer, prevent unfair trade practices in consumer transactions, and to provide for matters connected with and incidental thereto." It is enlightening to note that the Consumer Protection Act is a unique piece of legislation. The rareness lies in the fact that, unlike other statutory enactments, it provides in mandatory terms the manner in which it ought to be construed. In this regard, section 3 of the Act provides as follows:
49.Section 4 provides that the purposes of the Act are to promote and advance the social and economic welfare of consumers in Kenya by—
50.Section 2 defines a consumer as follows: (a) a person to whom particular goods or services are marketed in the ordinary course of the supplier’s business; (b) a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business, unless the transaction is exempt from the application of this Act; (c) a user of particular goods or a recipient or beneficiary of particular services, irrespective of whether that user, recipient or beneficiary was a party to a transaction concerning the supply of those particular goods and services; and (d) a franchisee in terms of a franchise agreement, to the extent applicable in terms of this Act.
51.From the above definition and the preamble to the act, it is clear that the whole tenor of the Act is to protect consumers. The act must be interpreted keeping in mind that its focus is the protection of consumers. As the Constitutional Court of South Africa observed in Natal Joint Municipal Pension Fund v Endumeni Municipality (2012) ZASCA 13; 2012 (4) SA 593 (SCA) para 18 while discussing a similar provision in their Consumer Protection Act, “… a sensible meaning is to be preferred to one that leads to insensible or un-business-like results…”
52.Regarding the applicable standard of prove, the general principle governing the determination of cases is that the party who alleges or, as it is sometimes stated, the party who makes the positive allegation, must prove. Moreover, the onus on the petitioner to establish violation of alleged consumer rights is not a mere formality; it is important. As the Constitutional Court of Uganda observed in Lyomoki & others v Attorney General (2005) EA 127:
53.The gravamen of the appellant’s and the 2nd respondent’s case is that the Consumer Protection Act, the Standard Act, the Food, Drugs and Chemical Substances Act are the primary statutes setting out the labelling requirements to display the nutritional information, e-mail address and storage directions on soft drinks. They faulted the learned judge for expanding the ambit of the legislation by imposing a higher standard on the appellant.
54.The learned judge, at paragraph 63 of the judgment, noted that, indeed, the 1st respondent appreciated that the appellant and/or the 2nd respondent had provided nutritional information in the soda packaged in plastic bottles. He stated as follows:
55.The appellant also claims that the learned judge adopted a strict construction of section 87 of the Consumer Protection Act; section 9 of the Standard Act regulation 4 of the Food, Drugs and Chemical Substances Act; and section 6.2 of the Carbonated Beverages) Soft Drinks Specifications KS EAS 29:200 that do not provide for the provision of nutritional information.
56.The fundamental principle is that such interpretation as would serve the interests of the Constitution would best carry out its object and purpose should be preferred. Where the provisions of are capable of two meanings the court must choose the meaning that would give effect to the Constitution and promote its purpose. (See Ifezu v Mbandugha (1984) 1 SC, NLR, 5 SC 79, Bello JSC). Thus, constitutional interpretation should be purposive. Rights should be interpreted in accordance with the general purpose of having rights, namely the protection of individuals and minorities against an overbearing collectivity. We do not conceive it to be the duty of this court to construe any of the provisions of the Constitution to defeat the obvious ends the Constitution was designed to serve.
57.Undeniably, article 46 and the Consumer Protection Act impose explicit requirements for the content of food labels, which manufacturers are not free to ignore. These requirements include the nutritional label, which must include the name of the food, the disclosure of the quantity of contents, the name and place of business of the manufacturer or distributor, a list of their ingredients and nutrition information. Nutritional label can be defined as a description used to inform the customer about the nutritional properties of food, which also help the customer in purchasing nutritious food and consuming nutritionally balanced meals. (See WJ Koe (1997), Nutritional Labelling Legislation).
58.The label information about nutrient content must as of necessity conform with article 46(1)(b) which guarantees a consumer the right to the information necessary for a consumer to gain full benefit from the goods and services. In our view, in the minimum, the nutrition labelling should-(a)provide consumers with nutrition information about the food product;(b)enable consumers to compare the nutritional quality of products from the same food group;(c)enable consumers to choose among products from different food groups based on nutritional quality;(d)prevent or reduce consumer deception by providing information about the nutrient composition of the product; and(e)provide incentives to improve food products by requiring manufacturers to describe fully the ingredients and nutrient value of their products.
59.In our view, the learned judge adopted an interpretation that upholds the tenor and intention of article 46 and the Consumer Protection Act by upholding the right for consumers to be provided with information pertaining to ingredients, nutrition claims and declaration of potential allergens as well as nutrition or health claims. Food warnings and labels inform consumption. Such information, as required by article 46, enables consumers to make informed decisions. As was held in Njoya & 6 others v Attorney General & 3 Others (No 2) (2004) 1 KLR 261, the Constitution should be construed liberally to give effect to the values it embodies and the purposes for which the makers framed it.
60.We have considered the finding by the learned judge on the obligation placed on the appellant and/or the 2nd respondent to provide nutritional information, e-mail address and storage directions. In our view, the learned judge’s finding is grounded on article 46(1)(a), (b), and (c), which guarantees consumers products of reasonable quality, and the right to be provided with the information necessary for them to gain full benefit from goods and services. The article also guarantees the protection of consumers’ health, safety, and economic interests.
61.In conclusion, we find that the appellant and the 2nd respondent have not persuaded this court that, pursuant to article 46 of the Constitution, they do not owe the consumers of their products an obligation to provide them with nutritional information, storage and contact information as held by the learned judge. On the contrary, we find and hold that the 1st respondent demonstrated to the required standard that the said omission offended article 46 and the Consumer Protection Act. Consequently, on this ground, the appeal fails.
62.We now turn to the question as to whether the difference in information on the packaging of the plastic and glass bottles is discriminatory. The appellant and the 2nd respondent’s argued that both the plastic and the glass bottles were available and accessible to all consumers, so they had a choice to opt for either. Further, they argued that the price difference between the beverage in the glass and plastic bottle is informed by the cost of production. Furthermore, the 1st respondent neither alleged or proved any category of persons were denied access to products packaged either in plastic or glass bottles.
63.Determining the above issue, the learned judge stated:
64.Article 27 of the Constitution guarantees the right to equality and freedom from discrimination. The Black’s Law Dictionary, 10th Edition defines “discrimination” as “Differential treatment; a failure to treat all persons equally when no reasonable distinction between those favoured and those not favoured.” It also defines “differential treatment” as “…, a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.”
65.From the above definitions, it is clear that discrimination can be said to have occurred where a person is treated differently from other persons who are in similar positions on the basis of one of the prohibited grounds like race, sex disability etc. or due to unfair practice and without any objective and reasonable justification.
66.It is important to mention that discrimination can be either direct or indirect. This court in Mohammed Abduba Dida v Debate Media Limited & another (2018) eKLR explained the two forms as follows:
67.Similarly, in Mohamed Fugicha v Methodist Church in Kenya (2016) eKLR, this court referring to a similar provision in the South African Constitution, cited with approval (Langa DP (later CJ)) in City Council of Pretoria v Walker (1989) ZACC 1 who observed that:
68.Applying the above definitions to the facts of this case, we find that the discrimination alleged by the 1stappellant was indirect in nature. The key issue is whether it was demonstrated that the omission complained about was discriminatory in the circumstances of the case. In Gichuru v Package Insurance Brokers Ltd (2021) KESC 12 (KLR), the Supreme Court had occasion to lay emphasis on the burden of proof in cases of discrimination. It held:
69.The 1st respondent bore the obligation to lay sufficient material before the court, so as to discharge the evidential burden. It is only after the 1st respondent had discharged the onus of prove that the obligation under article 24(3) shifts to the appellant and/or the 2nd respondent to justify why the differential treatment. The reasons for the limitation must surmount an article 24 analysis test. Article 24 requires limitation to be reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right or fundamental freedom, the importance of the purpose of the limitation, the nature and extent of the limitation, the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others, and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
70.The first question is whether the 1strespondent discharged the onus of prove bestowed upon him by the law for the evidential burden to shift to the other party. This court in Mohammed Abduba Dida v Debate Media Limited & another (supra) discussed the three stages of determining whether or not discrimination has been proved as follows:
71.In considering indirect discrimination, the Supreme Court of United Kingdom in Essop & ors v Home Office; Naeem v Secretary of State for Justice [2017] UKSC 27 explained six key features of indirect discrimination as follows:
72.The Supreme Court in Gichuru v Package Insurance Brokers Ltd (supra) also cited with approval the finding of Justice Silber in the UK High Court case of Queen, on the application of Sarka Angel Walkins Singh v the Governing Body of Aberdare Girls High School & another (2008) EWHC 1865, (paragraph 38) prescribing several steps to guide the proof:
73.It is common ground that the Coca Cola soda packaged in glass bottles does not have nutritional information, storage directions, customer care mobile number, and e-mail address. It is also undisputed that the Coca Cola Soda packaged in glass bottles provides nutritional information, storage directions, customer care mobile number, and e-mail address. There is no dispute that there is a price disparity in the two products.
74.The appellant faulted the learned judge for failing to appreciate that the price is based on many commercial factors and the differentiation cannot, by itself constitute discrimination. The appellant also argued that the customers have an option to elect which product to buy.
75.Applying the three-stage test discussed in the above cited authorities, we find and hold that the appellant has not justified why it is only the consumers of the Coca Cola products in plastic bottles who are entitled to be aware of the nutritional information, access to customer mobile number and even storage directions. We also find and hold that it has not been demonstrated why consumers of the same product sold in glass bottles are deprived the same information. We also find that the appellant and/or the 2nd respondent did not demonstrate that the provision of nutritional information, storage directions and customer care numbers and e-mail address to the consumers of the Coca Cola products packaged in glass bottles is inconsequential. Consequently, we find that the differential treatment of the consumers of Coca Cola product in plastic and glass bottles is not connected to a legitimate purpose or, for good reason, justifiable.
76.The second enquiry determines whether the differentiation gives rise to unfair discrimination. If it does not, there is no violation of the Constitution. We find merit in the reasoning that commercial factors determine the price of the Coca Cola products in Glass and plastic bottles. We also agree that a customer has the freedom to opt for either of the two products. However, that is how far it goes. The differential treatment of the consumers of Coca Cola product in glass bottles deprives them the constitutionally guaranteed right to be aware of the nutritional information of their preferred beverage. It deprives them access to customer care if needed, in case they have a complaint they wish to raise. Also, consumers of the Coca Cola product in glass bottles have been left in the dark on the issue of storage direction. In our view, the appellant/2nd respondent’s actions amount to unfair discrimination which is a blatant violation of article 27(5) of the Constitution.
77.The third enquiry is whether the limitation can be justified within the limitation provisions prescribed in article 24. On this third enquiry, counsel for the appellant submitted that both plastic and glass bottles were available and accessible to all consumers and, therefore, the issue of the consumers with lower purchasing power preference of the glass packaged products is not an issue of discrimination but one of choice. In our considered opinion, this reasoning is self-defeatist. We say so because it literally means that if a consumer has low purchasing power and can only afford the Coca Cola product packaged in glass bottles, then because of his financial position, he is not entitled to the information supplied in the other similar product, but in a different package. Such a reasoning flies on the face of articles 27 and 46. In the premises, we find and hold that the appellant and the 2nd respondent have not demonstrated that the reasons for the differentiation pass an article 24(3) analysis test. The upshot is that, we uphold the finding of the learned judge on the issue of discrimination.
78.Lastly, we turn to the question as to whether the 2nd respondent was wrongly impleaded. Put differently, were the proceedings against the 2nd respondent merely idle, frivolous or entirely uncalled for? Advancing this argument, the 2nd respondent urged that its role was limited to promotion, marketing or advertising Coca Cola brands. It complained that the court’s finding that it was a supplier of the Coca Cola brand within the meaning of section 2 of the Consumer Protection Act was wrong and ought to be set aside. At paragraph 76 of the impugned judgement, the learned Judge held as follows:
79.We have carefully examined the record and have established that the 1st respondent, vide a further affidavit sworn on November 30, 2015, annexed a copy of the Sustainability Review 2013/2014 prepared by the Coca Cola Eurasia & Africa Group. He averred that the 2nd respondent is listed as a business unit of the Coca Cola Eurasia & Africa Group. In response to the further affidavit vide affidavit sworn on March 24, 2016, the 2nd respondent denied being one of the five business units that operate under the Coca Cola Eurasia & Africa Group. However, the 2nd respondent admitted being a subsidiary of the Coca Cola Export Corporation a separate legal entity incorporated and carrying on business in Atlanta Georgia. However, it is noteworthy that the 2nd respondent did not provide any evidence to prove that it was a separate legal entity from Coca Cola Export Corporation based in Atlanta Georgia. Under sections 107(1), (2) and 109 of the Evidence Act, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts must prove that those facts exist.
80.We find and hold that, in the absence of evidence that the 2nd respondent is a subsidiary of Coca Cola Export Corporation and/or a separate legal entity from Coca Cola Export Corporation, the learned judge cannot be faulted for finding that the 2nd respondent was properly sued.
81.In conclusion, we find that this appeal lacks merit. Accordingly, it is hereby dismissed. Accordingly, we hereby uphold the judgment and decree of the High Court of Kenya (Constitutional and Human Rights Division) at Nairobi (Onguto, J) delivered on the January 30, 2018. In view of the fact that the 1st respondent did not file submissions or participate in these proceedings, we make no order as to costs. Even if the 1st respondent had participated, this being a public interest litigation, we would still be reluctant to impose costs. Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF JULY, 2023.HANNAH OKWENGU..............JUDGE OF APPEAL DR. K. I. LAIBUTA.................JUDGE OF APPEALJ. MATIVO.............JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR