Giant soft drink manufacturer Coca-Cola is staring at an Sh8 billion bill to design and produce new glass bottles after failing to convince the Supreme Court to suspend a decision requiring the company to include nutritional and customer care details on soda bottles.
Coca-Cola’s Kenyan bottlers -- the Nairobi Bottlers Limited and Coca-Cola Central, East & West Africa Ltd – had argued that six months for complying with the High Court judgment would impede its competitive advantage and also permanently cripple the business and affect its ability to pay more than 3,000 workers.
But the soft drink firm has suffered a setback after a Bench of five judges of the top court struck out its second appeal, seeking to overturn the judgment, for filing the case out of time.
“Time and time again, we have reiterated that filing an appeal out of time without leave and then seeking this court’s discretion to extend time is presumptive and inappropriate,” the Supreme Court presided by Chief Justice Martha Koome said.
The bottler rushed to the apex court after its appeal was dismissed by the Court of Appeal in July. Nairobi Bottlers Ltd wanted to overturn a 2018 decision of the High Court requiring it to include nutritional information and customer care details on soda bottles.
The ruling now means the company and its distributors must recall its bottles and print them afresh to include the details on its glass bottles.
The High Court had established that the omission of the product information deprived consumers of their constitutionally guaranteed right to be aware of the nutritional information and storage directions of their preferred beverage.
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.
The judgment was upheld by the Court of Appeal in July and attempts by Nairobi Bottlers and Coca-Cola Central, East & West Africa to challenge the decision at the Supreme Court came a cropper after the apex court rejected the petition last week.
The Court of Appeal had ruled that the difference in consumer information provided in the plastic bottles and the glass bottles was discriminatory, unconstitutional and unlawful.
A Bench of three judges of the appellate court ruled that consumers of the beverages in the glass bottles are denied the benefit of adequate nutritional and storage information and consumer contact addresses.
Other than the costs and job losses, Nairobi Bottlers argued that the approval of a new bottle design by the parent company is a rigorous and lengthy process.
The soft drink maker wanted to challenge the petition by Mark Ndumia Ndung’u who successfully sued the bottler for denying consumers nutritional information, email address and storage directions on the glass bottles.
Mr Ndung’u had opposed the appeal, stating that it does not raise any constitutional issues and the approximated costs by Coca-Cola were misleading. According to him, the bottler could opt to affix recyclable paper labels in the current glass bottles which is cost-effective.
He submitted that several countries including Germany, South Africa and Sri Lanka use such paper labels on soft drink glass bottles.
Mr Ndung’u won the case in 2018 when he convinced the High Court that all consumers are entitled to access the information on the labels and as such, there was no justification the information was not on the glass bottles.
The customer, who said he quit taking soda, said the size of the bottles (both plastic and glass) was equal but instead of giving the said information in both, the soft drink maker was using the available space for brand names in big print.
He argued that the nutritional details were critical to consumers for healthy a healthy drinking habit to, among other benefits, avoid lifestyle diseases such as obesity.
The court had directed the company to provide nutritional data, storage directions and customer care mobile number and email address on all of their Coca-Cola, Fanta, Krest, Stoney and Sprite brands glass bottles within six months from the date of the judgment. The Supreme Court said the distributor’s conduct in the appeal was strange and tantamount to trial and error.
“We would like to disabuse litigants from the notion that they can approach this Court or any other court for that matter, for purposes of engaging in a trial and error venture or at worse litigation by instalments. Such conduct will not only impede on prudent use of judicial time and resources but also amounts to abuse of the court process,” the judges including Deputy Chief Justice Philomena Mwilu, and Justices Mohammed Ibrahim, Smokin Wanjala and Isaac Lenaola said.
The Court of Appeal had ruled that Nairobi Bottlers failed to persuade them that they do not owe the consumers of their products an obligation to provide the nutritional, storage and contact information.
On the contrary, the judges said, Mr Ndung’u demonstrated to the required standard that the said omission offended Article 46 and the Consumer Protection Act.