Consumer rights are provided for in Article 46 of the Constitution of Kenya 2010 and further articulated in a variety of legislation, the grounding one being the Consumer Protection Act 2012. These pieces of legislation seek to provide for and protect consumer rights particularly: the rights 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 health, safety, and economic interests; and to compensation for loss or injury arising from defects in goods or services. From the nature of these rights, it goes without saying that they are interpreted, implemented and protected in connection to other personal and public rights outlined in the Bill of Rights.

The High Court, in the instant case of Mark Ndumia Ndung’u –v– Nairobi Bottlers Ltd & Another, was tasked with the duty to declare and enforce consumer rights by a Petitioner who was aggrieved by the conduct of Respondents, who are manufacturers and suppliers of soft drinks and beverages in the Kenyan Market.

Mr. Ndumia, being a repeat consumer of soft drinks, was diagnosed with stomach ulcers and thus barred from consuming food/beverages of acidic content; which condition piqued his interest in finding out the contents of food/beverages he consumed – including the soft drinks manufactured and supplied by the Respondents which are packaged in both glass bottles and plastic bottles. He was struck by the major difference that the glass bottles had no information on nutritional content, customer service telephone and email address, or storage directs, in direct and glaring contrast with the plastic beverage bottles.

The Petitioner therefore approached the Court on allegations that the omission of this information violates consumer rights under Article 46 of the Constitution of Kenya, stating this information is essential in enabling consumers know the benefits of consumption of the beverages, giving feedback and making enquiries and complaints to the Respondents in a bid to derive optimum benefits. He further argued that the storage information is vital to inform consumers on how to keep the products in the ideal way to retain their freshness and other desired qualities.

The Respondents refuted these allegations, mainly arguing that the reason for not including this information on the glass bottle was the fact that the glass bottle was reusable as compared to the plastic bottle which is non-reusable. They further stated that their contact information was contained on their bottle caps and that the beverages could be stored in either cool or warm environments.

The Court decided on, among others, whether the Petitioner (and consumers in general) has a right to the nutritional, storage directions and contact information. The Court took a holistic interpretation of the Constitution while determining this question, by noting that Article 20 of the Constitution provides that the Bill of Rights is binding on all State organs and persons, and that everyone is entitled to enjoy such rights to the greatest extent possible consistent with the nature of the right or fundamental freedom. This caused the Court to interrogate this issue while interpreting Article 46 of the Constitution, on consumer rights, alongside section 87 of the Consumer Protection Act, on suppliers’ obligation to disclose information to consumers.

Ultimately, the Court held that the Consumer Protection Act obliges suppliers to provide clear and comprehensible information in accordance with the Standards Act ; which information must be provided in a form in which is understandable to the consumer. The Court further held that the nutritional and storage information assures consumers of products of reasonable quality, provides information necessary for them to gain full benefit from goods and services; and finally, it ensures the protection of consumers’ health, safety, and economic interests. As such, the Respondents have an obligation to provide this information to consumers to enable them gain full benefits from the products they seek to consume; and assure consumers of food products of reasonable quality, protect their health and safety, and safeguard their economic interests.

In so holding, the Court found that the Respondents were in violation of consumer rights in Article 46 of the Constitution and the omission of nutritional information, storage directions and customer service mobile number and email address from the glass bottles was also discriminatory of the consumers of the glass bottled beverages under Article 27.

Conclusion

The crux of this decision is that the High Court has buttressed the rights of consumers, particularly their rights to information as granted in Article 46(1)(b) of the Constitution of Kenya, 2010 and section 87 of the Consumer Protection Act, 2012. As such, manufacturers and suppliers are mandated to disclose all information necessary to enable consumers to not only benefit from the products, but also make health and economic conscious decisions in relations to these consumables. The information should be quality and clear information which can be utilized by the consumers. This decision also brings across the need for consumers to be on high alert on the conduct of manufacturers and suppliers in relation to any consumables, to ensure that they are not indolent in view of their constitutionally guaranteed rights.