Blow to Coca Cola as Supreme Court dismisses appeal on Sh8bn bottle case

If you fancy Coca Cola company soft drinks; Coca Cola, Krest, Fanta, Sprite and Stoney, you might have noticed that the information in the plastic bottles is not available on the glass bottles.

The plastic bottles contain nutritional ingredients, storage directions and customer service contacts but the glass bottles do not have such details.

This was the gist of a petition by Mark Ndumia Ndung'u at the High Court, where he argued that the omission of the information violated Article 46 of the Constitution and amounted to discrimination.

Article 46 is on consumer rights.

In its judgement on January 30, 2016, the High Court allowed the petition and ordered that Nairobi Bottlers and Coca Cola Central, East and West Africa Limited provide the information on the glass bottles within six months.

This was on all of the Coca Cola, Fanta, Krest, Stoney and Sprite brands.

Aggrieved by the decision, Nairobi Bottlers filed an appeal in the Court of Appeal but the same was dismissed by a judgment dated July 7, 2023, upholding the High Court's decision.

Nairobi Bottlers did not give up and proceeded to the Supreme Court where it challenged the Court of Appeal's decision.

It prayed that the court suspend the execution of the judgement pending hearing and determination of the appeal.

It argued that the appeal raised weighty constitutional issues which required consideration by the court.

It further argued that the Court of Appeal erred by misconstruing Article 46 of the Constitution and the Consumer Protection Act.

The company also stated that the prior judgments violated its right to equal benefit and protection of law under Article 27 of the Constitution by imposing additional labelling requirements only on it to the exclusion of other distributors/suppliers of similar soft drinks.

It told the Apex Court that compliance with the impugned judgement would result in costs approximated at Sh8 billion, which it said would arise from producing a new glass bottle design.

"In addition, the prohibitive costs coupled with the six months time frame for compliance with the impugned judgment would impede its competitive advantage; it would also permanently cripple its business and affect its ability to meet wages for its workforce of over 3,000 people," the court further heard.

This was supported by Coca Cola.

Ndung'u opposed the same arguing that the appeal did not raise any constitutional issues and that the Sh8 billion approximated costs of implementing the court orders were misleading.

According to him, Nairobi Bottlers could opt to affix recyclable paper labels in the current glass bottles which he said is cost effective.

Ndung'u further asked the Court to strike out the appeal for having been filed out of time without leave. He argued that the bottling company had filed the appeal on August 21, being 38 days after the notice of appeal.

Nairobi Bottlers, however, said the appeal filing procedure was observed and attributed the delay in filing the appeal to the Court of Appeal’s tardiness in issuing certified copies of the impugned judgment and proceedings.

It also argued that it had filed the notice of appeal earlier and asked the court to extend the time to file the same.

The case had been presented before a five-judge bench presided by Chief Justice Martha Koome and including Justices Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala and Isaac Lenaola.

After reviewing the appeal, the court found that the appeal was indeed filed out of time as the printed copies thereof were availed on August 21, when they ought to have been filed on or before August 14.

The court also found that Nairobi Bottlers had not offered any explanation for the delay in filing its motion for an extension of time, therefore the prayer lacked merit.

"We therefore decline to accede to the request to deem the appeal, which was filed out of time, as properly before us. To do so would be tantamount to sanctioning an illegality," the bench ruled.

Further, the court struck out the appeal and dismissed the motion seeking to stay the execution of the judgements by the other superior courts.

This means that Coca Cola and Nairobi Bottlers will have to design and produce glass bottles with the nutritional ingredients, storage directions and customer care contacts.