Consumer Protection Law in Kenya

CONSUMER PROTECTION LAW IN KENYA
“THE LAW OF (UN)INTENDED CONSEQUENCES”
LYLA LATIF
UNIVERSITY OF NAIROBI,
SCHOOL OF LAW,
COMMERCIAL LAW
DEPARTMENT

COURSE CONTENT
CLASS 1:
 INTRODUCTION TO CONSUMER PROTECTION LAW – GENERAL DISCUSSIONS
 HISTORICAL CONTEXT OF CONSUMER PROTECTION AND EMERGENCE OF
CONSUMER PROTECTION LAW
CLASS 2:
 PRIVATE LAW APPROACHES TO CONSUMER PROTECTION
 GROUP EXERCISE AND DEBATE – THE RIBENA CASE
June - August 2016 LYLA LATIF 2

COURSE CONTENT
CLASS 3 & 4:
 PUBLIC LAW MEASURES TO CONSUMER PROTECTION
 GROUP PRESENTATIONS (SELECTED LEGISLATION)
CLASS 5, 6 AND 7:
 CONSUMER PROTECTION ACT, NO. 46 OF 2012
a. CONSUMER RIGHTS
b. UNFAIR PRACTICES
c. CONSUMER AGREEMENTS/TRANSACTIONS (RIGHTS AND DUTIES)
d. IMPLICATIONS ON DIFFERENT SECTORS
e. REMEDIES
f. GROUP PRESENTATIONS (CONSUMER PROTECTION WATCHDOGS)

COURSE CONTENT
CLASS 8:
 THE EFFECT OF REGIONAL INTEGRATION AND INTERNATIONAL LAW ON
CONSUMER PROTECTION BETWEEN PARTIES IN DIFFERENT STATES – GROUP
DISCUSSIONS
a. EAC
b. COMESA
c. EU
d. UNCTAD

COURSE CONTENT
CLASS 9:
 GROUP PRESENTATIONS
 MOOT EXERCISE

CLASS 1
INTRODUCTION

WHY STUDY THE LAW ON CONSUMER
PROTECTION?
1. Unsafe or low quality goods
2. Overcharging and incorrect weights
3. Misleading advertisements – Food labels
4. Slick sales method
5. GMOS – Monsato
6. Monopolies

INTRODUCTION
1. Who is a consumer?
2. What are consumer rights?
3. Why should a consumer be protected and by whom (by law)?
4. How is a consumer protected? What are the avenues open to the consumer to
complain against a defective product for example?
5. What remedies are available to a consumer who has been adversely affected by
goods or services?
6. What kind of goods and services fall within the ambit of consumer protection law?
All goods? All services? What of services offered online (eBay? Amazon? Uber?)

WHO IS A CONSUMER?
Section 2 of the Consumer Protection Act, 2012:
“consumer” means—
(a) a person to whom particular goods or services are marketed in the ordinary course of
the supplier’s business;
(b) a person who has entered into a transaction with a supplier in the ordinary course of the
supplier’s business, unless the transaction is exempt from the application of this Act; (Contract)
(c) a user of particular goods or a recipient or beneficiary of particular services, irrespective
of whether that user, recipient or beneficiary was a party to a transaction concerning the
supply of those particular goods and services; and (Tort)
(d) a franchisee in terms of a franchise agreement, to the extent applicable in terms of this
Act;

WHAT ARE CONSUMER RIGHTS?
Part II of the Consumer Protection Act, 2015 sets out these rights.
Common law
Equity
Contract
“Caveat Emptor” and Consumer Rights

WHY SHOULD A CONSUMER BE PROTECTED?
•Monopolies and restrictive trade practices
•There are suppliers who engage in unconscionable, unfair, unreasonable, unjust or
otherwise improper trade practices including deceptive, misleading, unfair or
fraudulent conduct
•Quality
•Value

CONSUMER PROTECTION BODIES AND REMEDIES
AVAILABLE
Protection:
Watchdogs – KEBS, COFEK
Section 89 and 90 of the Consumer
Protection Act, 2012
Office of the Ombudsman
Remedies
Sue (Courts, ADR, TDR)
Refund
Termination of Contract
Cancel/reverse credit card
Replacement
Apology

HISTORICAL CONTEXT OF CONSUMER PROTECTION AND
EMERGENCE OF THE LAW ON CONSUMER PROTECTION
African customary law
Islamic law
Pre industrialization
Industrialization
Post industrialization
Colonization
Post Colonization

AFRICAN CUSTOMARY LAW
•Barter trade
• Quality of goods
• Distance
• Abomination
•Curses/Witchcraft
• Fear hence quality

ISLAMIC LAW
 Akin to ‘neighbour’ principle
 Weights and measures to be accurate. “So establish weight with justice and fall not short in
the balance.” (Qur’an, 55: 9)
 Concept of justice in dealing with consumers (rights)
1. No Discriminatory Marketing Practices;
2. Disclosure of Information
3. Fair and Honest Dealing
4. Fair, Just and Reasonable Terms and Conditions
5. Fair Value, Good Quality and Safety, and
6. Accountability by Suppliers

PRE - INDUSTRIALIZATION
•Dark ages: manufactured goods came from small workshops, and most of its
machinery was powered by animals, wind, falling water, or human labor.
•Mercantile law
•Reliance on farmers and manufacturers
•Businessmen had the responsibility to protect and satisfy the consumer, by offering
quality commodities in right quantity and at reasonable prices (S. Sankaran, Business
and Society, Madras: Marghan Publication, 1987)
• Majority of the consumers were illiterate, ignorant and they usually suffer from lack
of information to make any intelligent purchases. Hence there were instances of such
consumers being exploited in terms of quality and quantity of goods. Sub standard
and unsafe products were pushed into the market.

INDUSTRIALIZATION
• Consumer revolution
• Capitalism and emergence of contract law and tortious claims
• Legislation of the mercantile law entrenched – Sale of Goods Act

COLONISATION
• Laws of India incorporated
• Settler specific law

POST COLONIZATION
• There were certain laws that were enacted that made reference to regulating the
consumer market (such as Trade Descriptions Act, Standards Act, Sale of Goods Act
etc.)
• Constitution of Kenya, 2010, Consumer Protection Act, 2012

CLASS 2
PRIVATE LAW MEASURES

INTRODUCTION
1. Private law measures (law of contracts and torts) also provide for consumer
protection-
2. DIRECT MEASURES that can be taken by consumers

CONTRACT LAW
 It plays some role in consumer protection.
 The areas of general law of contract which have a bearing on consumer protection
are:
 Misrepresentation
 Terms implied by a court in relation to services
 Exclusion clauses: The law of contract is based on the concept of equal bargaining power.
Consequently, parties to a contract are deemed to be capable of negotiating terms that are fair to
them. In cases where suppliers have a monopoly they may adopt a “take it or leave it” approach,
putting the consumer in a difficult position. Once a consumer enters into a contract with a supplier it is
up to him to enforce the contract in case of a breach. If he is ignorant of his rights , then he remains
without redress. A consumer can also be discouraged by the amount of time taken in court and lawyers
fees to pursue his rights.
 Contract law has certain principles that do not favour all consumers e.g. the doctrine of
privity of contract

SALE OF GOODS ACT, CAP 31
No STATUTE SECTIONS KEY HIGHLIGHTS CONSUMER PROTECTION
5 Sales of Goods 14-17, 20,23
31
35
51
52
53
54
Conditions and warranties implied in contracts of
sale, implied by description, fitness, sale by sample,
passing of property
Remedies
Rejection where wrong quantity delivered
Right of examining goods
Action for non delivery and damages
Right to specific performance
Remedy for breach of warranty - damages
Interest and special damages
Through the regulation of the
sale of goods

SALE OF GOODS ACT – IMPLIED CONDITIONS
This Act gives certain rights to the buyer of goods and implies certain terms in each
contract for sale of goods.
These implied terms are (section 14, 15, 16, :
Section 14: The seller has the right to sell, the buyer should have quiet possession in
the goods, the goods supplied must be free from any charge or encumbrance
Section 15: Goods to correspond with the description
Section 16: No implied warranty as to the quality or fitness of goods. There are
exceptions to this implied warranty.
Section 17: Bulk to correspond with sample, buyer to have reasonable opportunity to
compare bulk with sample, free from defect rendering them unmerchantable which
would not be apparent on reasonable examination

HIRE PURCHASE ACT, CAP 507
No STATUTE SECTION KEY HIGHLIGHTS CONSUMER PROTECTION
7 Hire Purchase Act 5
6
8
27
34
Agreements to be registered
Requirements
Conditions and warranties implied
Right to information?
False information
Through the regulation of hire
purchase agreements

HIRE PURCHASE ACT – IMPLIED CONDITIONS
This Act also gives certain rights to the hirer. The implied terms herein are similar to
those under the Sale of Goods Act (seller has right to sell, hirer shall have quiet
possession of goods, goods free from encumbrance, merchantable quality where
goods are second hand, fit for purpose)
Several other rights are provided under the Act such as; where the hirer has failed to
pay after having already paid 2/3 or more of the installments, the owner of the
goods cannot take repossession without an order from the court.

TORT LAW
o Under the law of tort the consumer can seek redress from the provider of goods and services
if he can prove negligence on the part of the provider that leads to harm befalling him.
o The remedies in tort law are vital in the sense that although there is no privity of contract
between the parties, one may be held liable for negligence.
o A consumer can also seek redress where she is dissatisfied with the quality of services she
obtained from a professional.
o Remedies for negligent misstatements causing economic loss

CLASS 3 & 4
PUBLIC LAW MEASURES

PUBLIC LAW MEASURES
There are certain statutes that have
been enacted which indirectly protect
consumers of products and services.
These laws are prescriptive, prohibitive
and protective.
They carry sanctions and prosecution.
They place positive duties on providers
or sellers of certain services and goods.
They provide for the use of machinery
to detect non conformers.
Liberal interpretation versus restrictive
interpretation.
Procedural and administrative.
Substance is on regulation and
enforcement.
Criminal application as well as civil
remedies.
No compensation.

TRADE DESCRIPTIONS ACT, CAP 504
1 Trade Descriptions Act 2, 3, 4, 5, 6, 7
15
16
17
18
19
20
21
30
31
Definitions
Trade description
False trade description
Offences
Individual: 2million, 5 years, both
Corporation: as per section 15
Accessories to offences committed abroad: as
per section 15
Offences due to fault of other person: as per
section 15
Defences
Mistake, Accident
Innocent publication
Powers
Inspectors
Cabinet Secretary
Court
Prohibits misdescription of goods, services,
accommodation and facilities provided in
the course of trade.
Prohibits false or misleading indications
as to the price of goods.
Provides that information or instructions
relating to goods to be marked on the
goods or be included in advertisements –
this is consistent with Article 46 of the
Constitution

“IN THE COURSE OF TRADE”
HAVERING LONDON BOROUGH COUNCIL VERSUS STEVENSON 1970
1WLR 1375
The defendant carried on a car hire business as opposed to the business of a
motor car vendor or dealer. He had a fleet of twenty-four cars and made a regular
practice of selling his hire cars when he had had them for about two years or when
the condition of a particular vehicle warranted it.
He did not buy or sell the cars at a profit but simply for the purposes of replacing
his fleet vehicles from time to time.
Held: The expression ‘in the course of a trade or business’ was not used in the
broadest sense. The transaction in issue was caught. It was ‘an integral part of the
business carried on as a car hire firm’. The defendant’s business as part of its
normal practice, bought and disposed of cars.

DEFINITIONS
TRADE FALSE TRADE

DESCRIPTION
TRADE DESCRIPTION FALSE TRADE DESCRIPTION

FALSE DESCRIPTIONS CONTINUED
Cadbury versus Halliday (1975) 2 ALL ER 226 – This definition is based on the
requirement that the description must be of such substance that it is capable of
inducing a purchaser. Thus, a statement which amounts to no more than a mere trade
puff, will not be treated as a false trade description. Value is not a trade description
Ront Ledge versus Ariza Motors Ltd – A statement may also be false to a material
degree not by virtue of what it says but by virtue of what it leaves out. To describe a
motor vehicle manufactured in 1972 but registered in 1975 as a new 1975 model is
materially false since an average person would take the description to mean that the
vehicle was manufactured in 1975.
R versus Ford Motor Co Ltd (1974) ALL ER 489– To call a car new when it suffered
superficial damage which has been repaired using new parts does not amount to
commission of an offence.

FALSE OR MISLEADING STATEMENTS AS TO
SERVICES – SECTION 6
It is an offence for any person, in the course of any trade –
a. to make a statement which he knows to be false; or
b. recklessly to make a statement which is false.
False and reckless statements with respect to the following matters:
1. the provision in the course of any trade of any services, accommodation or facilities
2. the nature of any services, accommodation or facilities provided in the course of any trade
3. the time at which, manner in which, or persons by whom, any services, accommodation, or facilities so
provided
4. the examination, approval or evaluation by any person of any services, accommodation or facilities so
provided
5. the location or amenities of any accommodation so provided

“MISLEADING STATEMENTS”
Robertson versus Dicicco (1972) 70 LGR 589 – car described as beautiful, and a
good little runner having a good engine. It was found to be unroadworthy. Held; car
pleasing to the eye but unroadworthy. Description not false but misleading.
Dixons Ltd v Barnett (1989) 153 JP 268 – a statement can be correct but it is
misleading. Where an ordinary shopper is concerned the fact that purchaser is misled
is a powerful practical consideration.
Surrey County Council versus Clark (1992) 156 JP 798 – we must distinguish
between a false and misleading statement

“TO MAKE A STATEMENT WHICH HE KNOWS TO BE
FALSE”
Wings Ltd versus Ellis (1984) 1 ALL ER 1046 – the tour operator had distributed to
travel agents brochures giving details of hotel accommodation for customers. After
distribution, the tour operator found out that the information contained in the brochure
was false to a material degree that there was air conditioning in the rooms in Sri
Lanka. Customer booked a holiday based on the brochure. Held: the brochure was
inaccurate, the respondent was aware of its inaccuracy thus misled the customer.

“RECKLESSLY TO MAKE A STATEMENT WHICH IS
FALSE”
Sunair Holidays Ltd versus Dodd (1970) 2 ALL ER 410– The travel agent in its
brochure described accommodation at a hotel as twin bedrooms with private bath,
shower, washing closet and terrace. The travel agent had a contract with the hotel to
provide such accommodation. 2 persons booked a holiday with the travel agent and
on arrival were not given rooms with a terrace.

WHEN IS A STATEMENT MADE?
R versus Thomson Holiday Ltd (1974) 1 QB 592– The Court of Appeal decided
that a statement is made when it is communicated to someone, e.g. by reading.
Trade descriptions can also be implied (e.g., conduct of the seller).

STANDARDS ACT, CAP 496
2 Standards Act 4
7
9
10
10A
12
13
14A
15
16A
Functions of KEBS
Powers of the National Standards Council
Establishment of standards through
gazette notice
Standardisation marks
Permits
Enforcement through
Samples and information
Inspectors
Destruction of goods
Penalties - 12 months/1million/both first
offence or 3 years/fine/both in addition
Kshs 100,000 for each day the offence
continues
Tribunal
Promotes and provides for the
standardisation of the specification of
commodities and codes of practice.
Establishes the Kenya Bureau of
Standards

WEIGHTS AND MEASURES ACT, CAP 513
3 Weights and Measures Act 3-10
11
12
17
18
23-26,
28,37,40
-45
46-50
54-64
How to measure weight, length, time,
electric current, thermodynamic
temperature, luminous intensity, amount of
substance
Offence not to comply
Kenya primary standards
Testing of standards and equipment
Definitions: use of trade
Offences
Defence of warranty, reasonable
precaution and due diligence, subsequent
deficiency, selling by quantity
Enforcement
Use, manufacture and sale of
weights and measures. Introduces
the International System of Units.
Rules relating to weighing or
measuring for trade, rules relating
to transactions in particular goods,
rules as to information

USE FOR TRADE

PUBLIC HEALTH ACT, CAP 242
No STATUTUE SECTIONS KEY HIGHLIGHTS CONSUMER PROTECTION
4 Public Health Act 13, 18
22
28
30
73
115, 118,
124
127,130.
131. 135
Health authorities: preventing the occurrence or dealing with
any outbreak or prevalence of any infectious, communicable
or preventable disease, to safeguard and promote public
health and give notice, if not offence (80,000)
Cleaning and disinfecting buildings or any part thereof
Offence for an infected person to expose themselves or an
infected thing to be exposed
Penalty for letting infected house
Rules concerning port health matters
Nuisance, demolition of unfit dwellings
Storage of foodstuffs, protection of water supplies, sale of
unwholesome food, protection of food
Securing and maintaining health.
Central Board of Health (may appoint
committees to carry out general or
specific functions)

ANTI COUNTERFEIT ACT, CAP 130A
6 Anti Counterfeit Act 2
4
23
32
35
Counterfeiting and counterfeit goods
defined
Functions of the AC Agency
Inspectors
Offences
Penalties
Protects consumers from counterfeit goods
Anti Counterfeit (AC) Agency established

PETITION NO 409 OF 2009 – PATRICIA A.
OCHIENG & 2 OTHERS V THE AG
“In my view, the definition of ‘counterfeit’ in section 2 of the Act is likely to be read as
including generic medication. I would therefore agree with the Amicus that the definition
‘would encompass generic medicines produced in Kenya and elsewhere and thus is likely to
adversely affect the manufacture, sale, and distribution of generic equivalents of patented
drugs. This would affect the availability of the generic drugs and thus pose a real threat to the
petitioners’ right to life, dignity and health under the Constitution.” para 78
“The Anti-Counterfeit Act has, in my view, prioritised enforcement of intellectual property rights
in dealing with the problem of counterfeit medicine. It has not taken an approach focused on
quality and standards which would achieve what the respondents have submitted is the
purpose behind the Act: the protection of the petitioners in particular and the general
public from substandard medicine. Protection of consumers may have been a collateral issue
in the minds of the drafters of the Act” (see para 83).

OTHER STATUTES
Medical Practitioners and Dentists Board – prohibits unqualified persons from
practicing medicine
Competition Act – controls the concentration of economic power, mergers, takeovers
and restrictive trade practices – see next slide
Fertilizers and Animal Foodstuffs Act – regulates the importation, manufacture and
sale of agricultural fertilizers and animal foodstuffs and substances. No import of
fertilizers or foodstuffs containing bone or any substance derived from animal carcass
(unless sterilized and is free from disease – certificate to prove this from country of
origin)
Food, Drugs and Chemical Substances Act - prevention of adulteration of food,
drugs and chemical substances

THE COMPETITION AUTHORITY’S CONSUMER
PROTECTION DEPARTMENT
Beatrice
Ndungu v
Safaricom Ltd
Telecommunications Section 56(4) on
disclosure of charges
BN complained of charges
on Lipa na Mpesa services
that the providers had not
informed consumers
The Competition
Authority ordered
Safaricom to create
awareness
CAK and
Diamond Trust
Bank
Banking Section 56 and 57 The Authority received a
complaint that Kenyans
applying for a Canadian
visa are compelled to
transact at DTB and also
obliged to buy US $ at
Kshs 110 which was higher
that the prevailing
average market rate
DTB letter dated 27th
May 2015 gave a
satisfactory
explanation and
allayed the fears
raised, as not being
accurate

CONTINUED
Annie
Waithera
and
Naivasha
Komarock
Retail Section 64(1)
on defective
goods
AW complained that she
purchased a Hot Point
Dispenser from Naivas
Komarock which later
developed a leak, this
happened less than a
month from the date of
purchase
The complainant’s Hot
Point Dispenser was
replaced by a new one.
Marisella
Ouma v
Zuku
Telecommunications Section 56(3)
and (4) on
unconscionable
conduct
MO alleged that Zuku
changed her package
from the one she was
subscribed to, to a
different one and billed
her for the new package
without prior notification
Zuku held liable

CLASS 4, 5 & 6
THE CONSUMER PROTECTION ACT

THE CONSUMER PROTECTION ACT, 2012
 Genesis to the Act was Article 46 of the Constitution of Kenya, 2010
 Competition Act, 2010
 Consumer Protection Act, 2012
 Sets out consumers’ rights and obligations with respect to a product or service
 Makes provision for the promotion and enforcement of consumer rights
 Empowers consumers to seek redress for infringement of their rights as consumers
 Provides for legal redress
 Prohibits ‘unfair practices’ such as representing that goods or services have a sponsorship, approval,
performance or a characteristic that they do not have, or are of a particular standard, quality, grade,
style or model

WHO IS A CONSUMER UNDER THE 2012 ACT?
Section 2 of the Consumer Protection Act, 2012:
“consumer” means—
(a) a person to whom particular goods or services are marketed in the ordinary course of
the supplier’s business;
(b) a person who has entered into a transaction with a supplier in the ordinary course of the
supplier’s business, unless the transaction is exempt from the application of this Act; (Contract)
(c) a user of particular goods or a recipient or beneficiary of particular services, irrespective
of whether that user, recipient or beneficiary was a party to a transaction concerning the
supply of those particular goods and services; and (Tort)
(d) a franchisee in terms of a franchise agreement, to the extent applicable in terms of this
Act;

RELATIONSHIP ARISING OUT OF A CONSUMER
AGREEMENT AND A CONSUMER TRANSACTION
Consumer agreement:
means an agreement between a supplier and a
consumer in which the supplier agrees to supply
goods or services for payment
a credit agreement,
a direct agreement,
a future performance agreement,
internet agreement,
lease,
remote agreement,
supplier credit agreement
time share agreement (see the definitions
under section 2 of the 2012 Act).
Consumer transaction: means any act or
instance of conducting business or
other dealings with a consumer,
including a consumer agreement.

OTHER DEALINGS WITH A CONSUMER
What does this mean?
What kind of other dealings?
Credit repair?
Loan brokering?
Optional service?

DOES THE ACT PROMOTE CONSUMER ACTIVISM?
– SECTION 3(4)
Would consumer activism be permitted under the Act?
 Whose obligation is it to enforce the purposes of the Act listed under section 3(4)?
 Is it the Advisory Committee?
 Class proceedings under section 4

CLASS PROCEEDINGS
Section 4:
(1) Institute proceedings and to join as interested party
(2) ADR
(3) Settlements binding

CONSUMER RIGHTS
Consumer rights cannot be ousted by any agreement between the parties
1. Constitutional, Statutory (all Statutes dealing with consumer rights), Contractual
(oral and/or written agreements) and Tortious (refer to Class 2)
2. Equity
3. Part II of the Consumer Protection Act, 2012

UNFAIR PRACTICES
1. What actions are deemed to be unfair practices?
 False representation (section 12) v prohibited representation (section 43)
 Unconscionable representation
 Renegotiation of price
2. What are the sanctions available for unfair practices?
 Rescinding agreement (section 16)
 Recover the difference between value and payment
 Damages Where rescission not possible

EFFECT OF RESCISSION
Section 16(12):
Rescission operates to cancel, as if they never existed:
1. The agreement itself
2. All related agreements
3. All guarantees given in respect of money payable under the agreement
4. All credit agreements and other payment instruments, including a promissory note

COMMENCING ACTION BASED ON AN UNFAIR
PRACTICE
1. Give notice (though this is discretionary)
2. No response from supplier, consumer may commence action
3. During trial oral evidence is acceptable - section 16(8)
4. Court may award exemplary or punitive damages in addition to any other
remedy

RIGHTS AND OBLIGATIONS WITH RESPECT TO
SPECIFIC CONSUMER AGREEMENTS
The rights and obligations vary with respect to the following specific types of
consumer agreements:
1. Future performance agreements
2. Personal development services
3. Internet agreement
4. Direct agreement
5. Remote agreement

FUTURE PERFORMANCE AGREEMENTS
Obligations – Section 18
1. Must be in writing
2. Must be delivered to the consumer
3. Must be made in accordance with
prescribed requirements
Rights – Sections 19, 20, 21
1. Cancellation if section 18
contravened or upon late delivery
under section 21
2. Payment of 2/3rds of the price, seller
cannot repossess unless through a
court order (similar to Hire Purchase)

PERSONAL DEVELOPMENT SERVICES – SECTIONS
24-30
Obligations
1. Shall be in writing
2. Delivered to consumer
3. Made in accordance with prescribed requirements
4. Supplier cannot receive payment unless 1,2,3 above
complied
5. Cannot be made for more than 1 year
6. Clauses on renewal deemed to create a separate
agreement
7. Supplier cannot enter into a new agreement with
consumer with whom he has an existing agreement
unless the new agreement is for personal development
services distinctly different from the service provided
under the existing agreement
Rights
1. Initiation fee can be charged only once
2. Initiation fee cannot be charged at an amount
twice the annual membership fee
3. Supplier to make available to the consumer at
least one plan for instalment payments of
membership fees and initiation fees
4. Consumer does not need a reason to cancel a
PDS agreement at any time and can do that
within 10 days after receiving the copy of the
agreement
5. PDS that are not available at the time payment
is made, supplier has no right to receive such
payment, must refund

INTERNET/DIRECT/REMOTE AGREEMENTS –
SECTIONS 31 - 38
Obligations
1. Supplier to disclose prescribed
information to consumer before execution
2. Supplier to provide consumer with
express opportunity to accept or decline
the agreement and to correct errors
immediately before execution
3. Section 5 applies
4. Agreement to be in writing and delivered
to consumer within the prescribed period
after execution and to contain the
prescribed information
Rights
1. To access the information
2. To retain and print the information
3. Right to cancel (section 33, 35, 38)

SIMILAR TRENDS?
1. All agreements to be:
 In writing
 Be delivered to the consumer
 In accordance with prescribed requirements
2. Right to cancel the agreements
3. Right to information to be contained in the agreements (internet, direct and
remote)

ADVANCE FEE PROHIBITED WITH RESPECT TO LOAN
BROKERING, CREDIT REPAIR OR SUPPLY OF SUCH OTHER
GOODS OR SERVICES – SECTIONS 39-43
 Consumer agreements for loan brokering, credit repair and supply of such other goods or
services as may be prescribed shall be in writing, delivered to the consumer and made in
accordance with the prescribed requirements
 The general rule is that advance payments are prohibited. However, there are exceptions for
the following instances:
 Loan brokering: where the consumer receives the credit or loan of money that the loan broker has assisted
the consumer in obtaining
 Credit repair: when the credit repairer causes a material improvement to the consumer report, credit
information, credit record etc., of the consumer
 Supply of such other goods or services as prescribed
 Imposes vicarious liability
 Prescribed prohibited representations not to be communicated.
 Right to cancel

MOTOR VEHICLES AND OTHER GOODS –
SECTIONS 44-52
 Directed to repairers (see definition under section 2)
 The general rule is that a repairer is not to charge a consumer for any work or
repairs made unless an estimate is first given that meets the prescribed requirements.
There are exceptions:
 Repairer may charge for work or repairs without giving an estimate if the repairer offers to give an
estimate and the consumer declines the offer
 The consumer specifically authorizes the maximum amount that he will pay the repairer to make the
repairs or do the work
 The cost charged for the work or repairs does not exceed the maximum amount authorised by the
consumer

ESTIMATE FEE – SECTION 45
No repairer shall charge a fee for an estimate unless the customer is told in advance
that a fee will be charged and the amount of the fee
A fee for an estimate shall be deemed to include:
Cost of diagnostic time
Cost of reassembling the goods
Cost of parts that will be damaged and must be replaced when reassembling if the works or repairs
are not authorised by the consumer
No estimate fee is to be charged where the consumer has authorised the works and
the same have been carried out
Estimate fee can be charged where authorization has been delayed or the repairer
has been unable to obtain it

AUTHORIZATION – SECTIONS 46, 47
 No repairer shall charge for any work unless the consumer authorized such works
 Authorization must be in writing, otherwise it is not effective. It must be recorded in a
manner that meets the prescribed requirements

OBLIGATIONS – SECTIONS 48-52
 Posting signs (certain signs are to be posted in accordance with the prescribed
requirements)
 Return of parts (unless authorised not to return)
 Invoice (prescribed)
 Warranties (Section 5 applicable as well) & reimbursement
 Consistency in cost (estimates and charges) – protecting against taking advantage of
insurance companies

CREDIT AGREEMENTS
•What is a credit agreement?
•What is a supplier credit agreement? What is the difference between the 2?
•Types of CA and SCA
Fixed Section 53 (1)
Open
•How does a consumer enter into a credit agreement?

CONSUMER RIGHTS/LENDER REQUIREMENTS
UNDER CREDIT AGREEMENTS
Statements Correct errors Insurance Deferral of
payments
No default
charges
Prepayment of
full outstanding
balance
Representations
in accordance
with the law
Disclosures
Adjustment
through trade
in

LEASE OF GOODS
•Leasing here means to rent
•3 types of leases considered
•Disclosures required to be made

RESIDUAL OBLIGATION LEASE

PROCEDURE FOR CONSUMER REMEDIES UNDER
THE ACT
Notice
Cancel/Reverse
Refund
Return
Commence
Action
Cancellation

THE INEQUITABLE RULE
•The CPA, 2012 serves to protect consumer rights and ensure that these rights are
enforceable.
•The courts will order that consumers (a) recover the full payment to which he or she is
entitled to under the Act, and (b) recover all goods delivered under a trade-in
arrangement or an amount equal to the trade in allowance unless “IT WOULD BE
INEQUITABLE TO DO SO”.

THE KENYA CONSUMERS PROTECTION ADVISORY
COMMITTEE
Policy
making
Advisory
CoordinationEnforcement
Investigatory

GROUP DISCUSSIONS
 What does the CPA, 2012 regulate that the other statutes (under the public law
measures) do not?
What are the differences observed between the CPA, 2012 and the other statutes?
Are there any similarities between the CPA, 2012 and the other statutes?
How would you summarise the CPA, 2012 in light of Article 46 of the Constitution and
the doctrine of “caveat emptor”?

CONSUMER PROTECTION AT THE REGIONAL &
INTERNATIONAL LEVEL
Regional
1. East African Community Competition
Act, 2006
2. COMESA Competition Regulation,
2004
International
United Nations Guidelines on Consumer
Protection, 1999

EAST AFRICAN COMMUNITY COMPETITION ACT, 2006
PROTECTION:
•Anti Competitive Practices
•Trade Barriers
•Access to Products
•Consumer welfare: Prohibiting FR and UC
•Product safety standards
•Approval of supply of goods considered safe
•Standards on required information

COMESA COMPETITION REGULATION, 2004
PROTECTION THROUGH:
•Prohibition of FR or MR
•UC in consumer transactions and business transactions
•Publish notices of goods being investigated
•Publish WARNINGS of possible risks involved in the use of products
•Prescribe product safety standards
•COMPULSORY PRODUCT RECALL

UNITED NATIONS GUIDELINES ON CONSUMER
PROTECTION, 1999
•Appropriate measures to ensure physical
safety
•Informative marketing to promote and
protect consumers economic interest
•Implementation of standards for safety
and quality of consumer goods and
services
•Legal/administrative measures for
redress
•Consumer education and information
programmes
•International cooperation:
• Exchange of information on national policies
and measures
• Cooperate in implementation of CP practices
e.g. joint use of testing facilities
• Cooperate to improve the conditions under
which essential goods are offered to consumers
with respect to price and quality

CLASS 8

GROUP PRESENTATION

HYPOTHETICAL CASE
GROUP 1 & 2 DISCUSSION
Simon wants to purchase a Samsung 32 HD Flat TV FH4003 Series 4. He calls his friend Diamond who works at
Samsung Suppliers at its Westlands Branch in the city of Nairobi.
Simon: Hi Diamond.
Diamond: Hey man.
Simon: I want to buy the Samsung Series 4. How much does it go for?
Diamond: We have it here for Kshs 69,995.
Simon: Super. Do you guys have an instalment payment plan?
Diamond: No. Sorry man.
Simon: Nothing you can do for me?
Diamond: Umm, from here, no not really. But, I have a friend who can sort you. Are you interested?
Simon: Sort me?
Diamond: Yeah, he normally deals in TVs and at reasonable prices. In fact, he can get you the series 4 at around
Kshs 55000 and yeah you can also arrange to pay him in instalments.
Simon: Gosh man. This is amazing. Hook me up.
Diamond: Take down this number and call him. Tell him I referred you to him. 0712 345 678. His name is
Sleaze.
Simon: Thanks man. You are the best.
Diamond: Cool. ByeJune - August 2016 LYLA LATIF 91

CONTINUED
Simon calls Sleaze and they arrange a meeting at a café in the CBD. Simon asks
Sleaze whether he has an office or a shop where he can see the TV that he wants to
buy and other goods that he may have. Sleaze tells him that he orders on request
and to avoid paying taxes and expenses of having a shop he prefers to work from
home.
Simon asks him for how long he has been in business and Sleaze replies by saying
“for the past 5 years”. Simon then asks Sleaze whether he can get a “Samsung 32 HD
Flat TV FH4003 Series 4”. This description he got it off the TV he saw displayed for
sale at Nakumatt, Westgate. Sleaze says that he can get him the series 4 at Kshs
55,000. Sleaze asks for a deposit of Kshs 30,000 and informs Simon that his order
will take 2 weeks to deliver and the balance of Kshs 25,000, Simon can pay in five
instalments.
Simon agrees. Pays Sleaze Kshs 30,000. They shake hands and depart.

CONTINUED
It is now 2 months and the television has not been delivered. Simon can no longer get a hold of
Sleaze. Simon calls Diamond and Diamond goes with Simon to Sleaze’s home. On
confrontation, Sleaze defends himself by saying that the guy he placed the order with in
Dubai has not yet dispatched the TV. Simon demands his money back. Sleaze says he is not in
a position to pay the money back since he sent it to his guy in Dubai. Sleaze pleads with Simon
to give him time, another two weeks to get his Series 4. Diamond persuades Simon to accede
to the request made. They agree and part. Two weeks later, Sleaze personally delivers to
Simon’s house the Series 4 in an ordinary box. Simon is excited and pays Sleaze Kshs 5,000.
Sleaze leaves. Simon then opens the box to remove a second hand Series 4 with scratches on
its screen. Simon is disgusted.
Discussion:
What are the legal issues emanating from this scenario? (Group 1)
What are the applicable laws? (Group 2)
What legal remedies are available to Simon? (Group 1)
What defences can Sleaze rely on? (Group 2)

HYPOTHETICAL CASE
GROUP 3 & 4 DISCUSSION
Two months ago, Kamau purchased and installed a new Chinese electric cooker from
Wanjiru Appliances Ltd (Wanja). Wanja is a chain store selling household appliances.
Wanja directly import the Chinese cooker from Chinese Cuisine Ltd in Beijing, China.
The Chinese electric cooker is a large commercial stove that is often used by
restaurants and cafes. Kamau purchases it from Wanja who gives him a one-year
warranty. There is a clause in the warranty that provides as follows: “In the one-year
warranty period Wanjiru Appliances will replace or repair all defective parts free of
charge. Parts or accessories that are intended to be replaced are limited to fuses,
light bulbs, filters, related starters, cables, light covers, plugs, and the oven coil. All
other parts or accessories are excluded”. It is also written within the warranty that the
Chinese electric cooker is intended for commercial use and not residential.

CONTINUED
Kamau, an enthusiastic cook intends to continue to give evening cookery classes in his
home, using the new cooker. Previously, he held his classes at a client’s house. Over the
last 10 years, Kamau built up an excellent clientele for his classes. He gives one class
at his home on a Saturday. Next Saturday is his birthday, so he cancels class. On
Kamau’s birthday, his partner, Wambui decided to bake him a cake whilst he was out
shopping. She prepared a chocolate cake, put it in the Chinese cooker and set the
timer for one hour and went outside to lie by the pool, while her house help washed
the dirty dishes.
Ten minutes later, Wambui heard a blast and the smoke detector went off. She rushed
inside to see flames and smoke billowing from the cooker. The door of the oven had
blown off and hit the house help who lay on the kitchen floor bleeding. Wambui flees
the kitchen screaming.

CONTINUED
One week later after the house is back in order and the kitchen restored, police
investigators provide Kamau with a report that the cooker was faulty, the cables had
not been properly fixed which led to them burning due to the high temperature sued
in baking the cake. Further, the parts used in the electric cooker seemed second hand.
Kamau is annoyed.
Discussion:
What are the legal issues emanating from this scenario? (Group 3)
What are the applicable laws? (Group 4)
What legal remedies are available to Kamau? (Group 3)
What defences can Wanja rely on? (Group 4)

CLASS 9

MOOT TRIAL
KNIGHT BANKS VERSUS WAMBUA

THE END
LYLA LATIF
DEPARTMENT OF COMMERCIAL LAW, SCHOOL OF LAW, UNIVERSITY OF
NAIROBI
@LylaALatif
HTTP://WWW.RACHIERADVS.CO.KE/
http://www.slideshare.net/LyllaLatif
2017 LYLA LATIF 99

Consumer Protection Law in Kenya

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