Kenya Breweries Ltd v Odoyo
The bottom line
#Kenya's Court of Appeal held Kenya Breweries liable for contaminated beer, ruling manufacturers bear the burden of proving their products are safe.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the case falls within the Donoghue v Stevenson principles of manufacturer's liability (duty of care, breach, injury resulting from breach)
- 2.Whether there was a nexus between the unopened bottle analysed by the Kenya Bureau of Standards and the beer consumed by the respondent
- 3.Whether the Kenya Bureau of Standards certificate of analysis was properly obtained and admissible, and whether analysis should have been done under the Food, Drugs and Chemical Substances Act
- 4.Whether there was evidence that the beer caused the respondent's injury
- 5.Whether the learned Judge erred in awarding only one third of the costs of the first appeal to the appellant
Key legal issues
#Scope of a second appeal
The Court resists delving into matters of fact and confines itself to questions of law, accepting findings of fact of the lower courts.
Relying on Selle v Associated Motor Boat Co and Stephen Muriungi v Republic, the Court distinguished first appeals (retrials on facts) from second appeals, where interference is only where matters were wrongly considered, omitted, or the decision is perverse.
Nexus between the analysed unopened bottle and the consumed beer
The concurrent finding that the unopened bottle contained the same impurities as the consumed bottles was factual, based on cogent reasoning, and could not be disturbed.
The appellant's microbiologist accepted it was reasonable to assume that if one beer in a batch was contaminated the rest were; the appellant, with special knowledge of its production, never demonstrated the bottles were of different batches, and bore an evidential burden to explain matters especially within its knowledge.
Admissibility and sufficiency of the Kenya Bureau of Standards certificate
The alleged breach of the Standards Act did not vitiate the report; it was admitted without objection and the analyst was not challenged on that issue.
The appellant never applied to exclude the report, never challenged the analyst in cross-examination on legality, and never subjected the beer to testing by the authority it said had jurisdiction; improperly obtained evidence goes to weight, not admissibility.
Causation of injury
The concurrent findings that the beer caused the respondent's vomiting and diarrhoea stood; alternative causes were eliminated on the evidence.
The clinic evidence of immediate illness, unchallenged laboratory results, and Dr Kamau's concession that food-poisoning symptoms appear within one or two hours eliminated the roast meat as cause; the two courts' acceptance of the evidence was factual and unimpeachable on second appeal.
Evidential burden of a manufacturer (Bosire JA)
The appellant had exclusive control of the production line and bore the burden of showing the particles were harmless or introduced by a third party; a rebuttable presumption of contamination arose.
Applying section 112 of the Evidence Act, Bosire JA held that foreign particles in bottled beer are unusual, and once the respondent proved consumption of beer from a batch of three and resulting illness, the burden shifted to the appellant, which took no steps to obtain a second opinion on the beer's purity.
Costs of the first appeal
The Judge was plainly right to award only one third costs since the appellant lost on liability and special damages and achieved only a modest reduction in general damages.
Success confined to reducing general damages from Ksh.70,000 to Ksh.20,000 was not substantial success justifying full costs of the first appeal.
Legal principles established
#- On a second appeal the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact unless no reasonable tribunal could have reached them or the decision is perverse.
- Where a fact is especially within a party's knowledge in civil proceedings, that party bears the burden of proving or disproving it, and the burden may shift to a manufacturer with exclusive control of the production line.
- A manufacturer owes a duty of care to consumers of its products, and liability under Donoghue v Stevenson is established where a batch containing impurities is consumed and injury follows.
- Evidence in a civil trial, even if obtained under a possibly inapplicable statutory regime, is not vitiated where it was admitted without objection and its maker was not challenged in cross-examination.
Court orders
#- 1.Appeal dismissed for lack of merit
- 2.Costs of the appeal to be paid to the respondent by the appellant
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Wrote the leading judgment. Confined the second appeal to matters of law, upheld the concurrent findings of the two lower courts on liability, causation and special damages, and would have dismissed the appeal with costs to the respondent.
In conclusion, I would dismiss this appeal for lack of merit. I would order costs to be paid to the respondent by the appellant.p. 8
Wrote the judgment
Agreed with Otieno JA but added a separate opinion on the evidential burden: the appellant had exclusive control of the production line and, under section 112 of the Evidence Act, bore the burden of explaining facts especially within its knowledge, raising a rebuttable presumption that the beers were contaminated.
The facts and circumstances of the case clearly raise a rebuttable presumption of fact that the vomiting and diarrhoea resulted from the consumption of the unwholesome beer, and that all the three beers were contaminated.p. 8
Wrote the judgment
Respectfully dissented. Held the KBS certificate of analysis was obtained ultra vires the Standards Act, that analysis of beer should have been under the Food, Drugs and Chemical Substances Act, that causation was never proved and the facts were dissimilar to Donoghue v Stevenson; would have allowed the appeal with costs.
I have had the advantage of reading the majority judgments in draft, and I respectfully dissent for the reasons appearing in the face of my judgment. I accordingly allow this appeal and set aside the judgment of the superior court with costs both here and below to the appellant.p. 19
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.A. No. 480 of 2002
- Jurisdiction invoked
- Second appeal to the Court of Appeal under section 72 of the Civil Procedure Act, confined to matters of law
Relief refused
#Setting aside the finding on liability
Concurrent findings of the two courts below were based on cogent reasoning and the appellant failed to discharge its evidential burden
Interference with the reduced general damages award of Ksh.20,000
No cross-appeal challenging the reduced award
Full costs of the first appeal to the appellant
The appellant only succeeded in a modest reduction of general damages, which was not substantial success
Costs
Costs of the appeal to be paid to the respondent by the appellant; the High Court's award of one third of the costs of the first appeal to the appellant left undisturbed.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, I would dismiss this appeal for lack of merit. I would order costs to be paid to the respondent by the appellant.
This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
The facts and circumstances of the case clearly raise a rebuttable presumption of fact that the vomiting and diarrhoea resulted from the consumption of the unwholesome beer, and that all the three beers were contaminated.
In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.
It does not matter where the test was carried out and it does not matter under which law the examination was done so long as the report has dealt with the essential aspects of the matter and the same test was admitted at the trial by a competent court of law.
In civil cases, the standard of proof required is on a balance of probability as opposed to proof beyond reasonable doubt required in criminal cases.
Issues in the judgment
#Standards Act cited with three different chapter numbers within the same judgment
Food, Drugs and Chemical Substances Act cited as both Cap 254 and Cap 250
Date of KBS analysis given as 2008 in the dissent against 8th August 2000 in the record
Bar name and location differ between the majority narrative and the superior court's facts quoted in the dissent
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kenya Breweries Ltd v Odoyo", Case Analysis (2010). Civil Appeal 127 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/498/eng@2010-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.