IN THE HIGH COURT OF TANZANIA AT DODOMA

(CORAM: P.B.KHADAY, D.R)

CIVIL APPEAL NO. 33 OF 1999

COCACOLA KWANZA LIMITED……………………………………………APPELLANT

Versus

BILSON MBEZIBWA………………………………………. ……………….RESPONDENT.

(Appeal from the decision of the district court of Dodoma at Dodoma in the civil case no 23 of
1998,

BEFORE E.E. MWANTEMI, DISTRICT MAGISTRATES)

KYANDO, J

Dated at 25 September, 2001

MATERIAL FACTS.

At a material day a respondent entered a 3-ways kiosk and orders a bottle of drink, because of
thirsty he drank/gulped hurriedly such drink, then he noted that there were some impurities at the
bottom of the bottle, such impurities were of dusts and insects. The Plaintiff shown such impurities
to the maid and the maid pleaded to keep such bottle of impurities and shows the suppliers of Coca
Cola kwanza soft drinks. The Plaintiff went to the Police Station to report the matter. ASP Paulo
went with Plaintiff at the 3-ways kiosk to take evidence of the claim brought before a Police Station
there after the Plaintiff suffered abruptly stomachache, vomiting and diarrhea. He went to find
some milk though he did not get better after taking such milk. He went back to the Police Station
where he get a PF3 and proceed to the Police Dispensary for first aid and he was given some
medicines and directed to inform the general doctors that he had medicine ready given at the police
dispensary , the General Hospital Doctor directed him to proceed with the medicines given at the
Police Dispensary. The sickness obtained by the plaintiff as a result of taking a dirty drink which
triggered him fail to attend daily activities for three days, after all these the claimant filed a case
claiming 10millions shillings as general damages he sustained due to such drink, whereas the
learned District Magistrate upon the judgment awarded the Plaintiff such amount claimed by the
Plaintiff, as a result the appellant aggrieved by such judgment and decide to appeal by challenging
the evidences used in the judgment at the District Court.

Among the evidences challenged by the Appellant was the report which used as an exhibit in the
evidences brought before the District Court which also used in the Decision at the District Court.
The company claimed that they did not see the sample examined by the Government Chemist at
Dar es Salaam, if was the product from their own company, the report was as follows;

“JAMHURI YA MUUNGANO WA TANZANIA

WIZARA YA AFYA

Kumb. Namba yetu: 215/2/38 08/06/1998

Kumb Namba yako: DO/DCID/B.I/VOL.IX/211/

Mkuu wa Upelelezi wa Jinai.

Wilaya ya Dodoma Mjini

P.O.BOX 912,

DODOMA.

YAH: DO/IR/1615/98

Mnamo tarehe 27/05/98 tulipokea sampuli moja ya soda

Tangawizi yenye uchafu ndani toka kwa askari No.E.5408

D/C Samson yenye kumb No. DO/CID/B.I/I/VOL.IX/211 ya

25 may, 1998, ili tuifanyie uchunguzi na kutoa maoni ya kitaalam.

Uchunguz umefanyika na matokeo nikama yafuatayo;-

Wajili …………….. kimiminika chenye uchafu na sisimizi waliokufa

Harufu……………. Ya soda ya Tangawizi

Alkaloid…………… hakuna

Madawa ya kuulia wadudu (pesticide) ………… hakuna

Kutokana namatokeo hayo hapo juu mliyotuletea ni uchafu wa vumbi pamoja na sisimizi
waliokufa. Hakuna sumu nyingine iliyotambulikana hata hivyo haifai kwa matumizi ya binadamu
kwa sababu nichafu na uchafu huo unaweza kusababisha maumivu ya tumbo.

B.N. MASAMBU

CHEMIST II

Imethibitishwa na

MASHIMBA E.N.M (ph.D)

MKEMIA MKUU WA SERIKARI”

The report was used as among the evidence to make decision on the appeal to the high court.

ISSUES.

1. Whether Coca-Cola Kwanza Company limited was the real manufacturer of the alleged
soda (Stoney Tangawizi)?
2. Whether the Respondent illness was caused by drinking the alleged soda which
manufactured negligently by the Appellant?
3. Whether the manufacturer owed the duty of care to the Respondent?
4. Whether the manufacturer can be held liable of negligence?
JUDGEMENT.

In judgment, it was held that Coca Cola kwanza Company was a real manufacture of the alleged
Stoney Tangawizi soda as the investigation made by the Government Chemist depicted that it was
belong to Company, also the bottle was not opened since it left the company as pop sound
produced when opened at the 3-ways kiosk by the Respondent. Further the Court accepted the
Government Chemist report that it contained correct account of what found in a bottle bought by
the Respondent and held that the bottle containing dirt including dead insects and dusts which
caused the Respondent to suffer harm after taking such drink and therefore awarded him damages.
The Coca Cola Kwanza Company owed a duty of care as referred in a case of, Donoghue V.
Stevenson, whereas was suggested that every person should take reasonable care to the end
consumer or users of the products as in this case the consumer was the Respondent. The
manufacturer of Stoney Tangawizi Company was liable for the alleged damage of ten millions as
award to the respondent, hence the evidence shown clear that were the real manufacturer of the
alleged soda as they produced such drink negligently without taking care of the consumers and
distributed it without verifying whether was safe for use or not, as a result the Respondent suffered
injuries after taking that drink.

RATIO DECIDENDI.

In this Case it is emphasized that a person or company that produce products consumed by other
persons should take reasonable care to avoid acts or omissions which can be reasonably foreseen
to injure the neighbors.

OBITER DICTUM.

The judge was of the opinion that the Learned Magistrates did so immediately after cross-
examination but before re-examination. This was wrong procedure. Examination by the Court
comes at the end of a witnesses’ evidence, after re-examination and not before. And suggested that
the magistrate have to observe this in future.

HOLDING

Appeal was dismissed.

We do concur with the judgment of the high court which have been decided by the panel of the
judges since the manufacturer have found liable for negligence of breaching duty of care and cause
damage since it seems the patient was in serious illness which caused by the alleged soda however
there are some weaknesses in judgment throughout the assessment on the side of the plaintiff due
to the fact that the plaintiff had a room to foresee the contaminants that contained dust and dead
insects due to the color of the bottle was easy to see what is contained inside.