The Respondents have supplied their mobile phone number on the plastic bottles and omitted this from the glass bottles. I find and hold that it is discriminatory to supply customer service mobile numbers and e-mail addresses to a class of consumers while denying the same to a different class of consumers of the same product”. The judges noted that where a supplier opts to avail its customer service mobile number and e-mail address to consumers of a product, it must do so uniformly to all consumers of that product without distinction-Court of Appeal Judges Hannah Okwengu, Dr K. I. Laibuta and J. Mativo
By The Weekly Vision
Court of Appeal Judges Hannah Okwengu, Dr K. I. Laibuta and J. Mativo last week upheld a ruling by a lower court that required Nairobi Bottlers to print nutritional information, directions on storage, customer care mobile number and e-mail address on the Coca-Cola, Fanta, Krest, Stoney and Sprite glass products in a ruling dated 7th July 2023
Nairobi Bottlers had appealed against the judgment and decree of the High Court of Kenya Constitutional and Human Rights Division) at Nairobi made by Judge Onguto, J. dated 30th January, 2018. Mr Mark Ndumia Ndung’u had sued Coca-Cola 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 admission, he stopped taking Coco Cola Soda in 2014 on the 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 to give feedback, make enquiries and complaints, and 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.
In his petition, he sought the following orders: a) a declaratory order that the Respondent’s omission of the nutritional value of the Coca-Cola, Fanta, Krest, Stoney and Sprite glass bottles prejudices the health of consumers as safeguarded in Article 46(1) (c) of the Constitution;
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 the 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; However, Concerning the difference in price between the beverages packed in glass bottles on one hand and plastic bottles, coca-cola submitted that the difference in pricing was because the glass bottles are re-usable while plastic bottles are not re-usable.
The judges noted that 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 compensation for loss or injury arising from defects in goods and services.
The ruling reads in part “Nonetheless, the Respondents have supplied their mobile phone number on the plastic bottles and omitted this from the glass bottles. I find and hold that it is discriminatory to supply customer service mobile numbers and e-mail addresses to a class of consumers while denying the same to a different class of consumers of the same product”. The judges noted that where a supplier opts to avail its customer service mobile number and e-mail address to consumers of a product, it must do so uniformly to all consumers of that product without distinction.
Specifically, while the plastic bottles have information on the nutritional content of the Coca-Cola, Krest, Fanta, Sprite or Stoney beverages there is no such information provided on the glass bottle. Also missing are e-mail contacts as well as storage directions. The effect of this is that whereas consumers of beverages in plastic bottles can readily know and tell the nutritional content of the beverages they are consuming, consumers of beverages in glass bottles are denied this benefit.
The ruling further reads “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 30th January, 2018”.
