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Consumer Protection Act

The Purpose Of The Act Is To Provide For The Protection Of The Consumer, Prevent Unfair Trade Practices For The Matters Connected With The Incidental Thereto.

A consumer means the person to whom the goods or services are marketed to, a person who has entered into a transaction with the supplier, a user of particular goods or recipient or beneficiary of particular service (section 2 of Consumer Protection Act)

A consumer means the person to whom the goods or services are marketed to, a person who has entered into a transaction with the supplier, a user of particular goods or recipient or beneficiary of particular service (section 2 of Consumer Protection Act)

Consumer agreement is the mutual understanding (Agreement) between the supplier and the consumer.

Consumer report is a written or oral communication of credit information or personal information or both.

Consumer transaction means any act or instance of conducting business with the consumer.

Supplier means a person who is in the business of selling, leasing or trading in goods or services or is otherwise in the business of supplying of goods or services.

Service Provider is the person offering any other than goods, including any service, right, entitlement or benefit.

The Consumer Protection Act gives the consumer rights to commence legal action on behalf of a class of person in relation to any contract for the supply of goods or service to the consumer. The rights cannot be ousted by any agreement.

  • Implied warranties

A supplier is deemed to warrant that the goods and service are of reasonably merchantable quality.”Quality of goods and service “ (Section 5)

  • Ambiguities

To be interpreted In favour of the consumer. Any ambiguities in a consumer agreement including oral agreements shall be interpreted in favour of the consumer. (Section 7) In the case of GATOBU M’IBUUTU KARATHO V CHRISTOPHER MURIITHI KUBAI [2014] EKLR where the court stated that;

No evidence can be adduced to vary the terms of the contract if the language is plain and unambiguous. 

 

  • Estimates.

If the supplier provides an estimate, the supplier cannot charge the customer an amount that exceeds 10% of the estimate provided unless an additional goods or services are provided.  (Section 6)

  • Advertising on internet gaming site.

Advertisement including sponsorship relationships on internet gaming sites are operated contrary to the law is prohibited. (Section 11)

  • Charging Consumers for assistance.

No person shall charge a consumer for assisting the consumer obtain benefit, right or protection to which the consumer is entitled. (Section 8)

  • Unsolicited goods and services.

A recipient of unsolicited goods or services has no legal obligation in respect of their use or disposal. No payment shall be demanded from the consumer for receiving unsolicited goods or service.

‘Unsolicited goods or service’ means goods that are supplied to a consumer who did not request them but does not include goods that the recipient knows are intended for another person.  

  • Consumer may commence action.

The act prohibits ‘unfair practices’ and proceeds to provide for radical sanctions against a supplier who engages in unfair practices.

They include;

  1. Making misleading, false or deceptive representations. This include;
    • Representing that goods or service have a sponsorship, approval, performance or characteristic that they do not have
    • Representing that goods or service are of a particular standard, quality, grade, style or model, if they are not.
  2. Making unconscionable representation. In determining this some matters that will be taken to account include whether the person knows,
    • The consumer is not able to protect his interests due to disability, ignorance, illiteracy, and inability to understand the language.
    • The price grossly exceeds the price at which the goods or services are readily available.
    • There is no reasonable probability of the consumer making payment in full.  
    • The consumer transaction is excessively one sided.
    • The consumer is being subjected to undue pressure.

 

Sanctions for unfair practices

  1. Right to terminate agreements and sue for damages.
  2. Oral evidence to be admissible in determining whether there have been unfair practices or representation.
  3. Exemplary and punitive damages payable. Courts are permitted to award an addition to remedy.
  4. Damages for consequential loss.
  • Non-delivery- in this case the buyer sues either for no delivery at all or for defective delivery. Joseph and co. Pty Ltd. V. Harvest Grain co Pty Ltd.
  • Breach of warranty- In the event of breach of warranty or the buyer has elected or compelled to treat the breach of a condition as a breach of warranty then the buyer cannot then reject the goods and the measure of damages is determined.
  • Specific Performance- If the goods are of unique nature, damages would be considered inadequate remedy and the buyer may be able to obtain an order for specific performance of contract.
  • Rejection- In some cases the buyer may reject the goods. The buyer may not be able to reject goods for breach of warranty. The right to reject will be lost if the property in the goods has passed to the buyer or the buyer has accepted.
  1. A lien on the goods in his possession- as long as the goods remain in his possession and can refuse to deliver them then the buyer until full payment or payment of the price.
  2. The right of stopping the goods in transit
  3. Limited rights of resale. Unpaid seller may resell where the goods are perishable, where the rights to do so is expressly reserved in the contract, and where in exercise of the right of lien or stoppage in transit.

Future Performance contracts (sale of Real Estates )

No right to resell, the goods sold may be undertaken without the leave of court if more than two-thirds of the consideration has been already. Any agreement under whichthe supplier may retake possession is not enforceable.

Agreements entered into over the internet

The supplier who enters into agreement via the internet is required to disclose certain required information. (This information has not yet been prescribed)

The agreement must provide the consumer with an express opportunity to accept or decline the agreement or to correct errors before entering the contract.

The agreement should be delivered in writing in to the consumer within some specified time.

In some cases, a consumer has a right to terminate internet agreement.

Repairs to motor vehicles.

A repairer of motor vehicles may only charge the consumer the charge he had initially estimated.

A repairer can only charge for work that was authorized by the consumer

A repairer cannot charge more than 10% on a price that estimate was already given.

A repairer shall offer to return to the consumer all parts removed during repair.

A repairer shall be deemed to warrant all new and reconditioned parts installed and the labour required to install them for minimum of 90 days or 5000km whichever come first.

In the event that a vehicle shall become inoperable or unsafe to drive following repairs, the owner of the vehicle shall take the vehicle to closest facility available with the owner of the vehicle been claim under the warranty, described above to the original repair for cost of work.

Banking and Finance- Credit Agreement

A borrower who is required to purchase insurance under a credit agreement may purchase it from any insurer of his choice.

No default charges

No payment penalties

Initial disclosure statement

Subsequent disclosure requirements- the lender shall at least once a year deliver a disclosure statement to the borrower.

Lease of goods (other than the goods under a residential tenancy )

Disclosure statement

Prescribed information in the disclosure statement

Maximum break fee for terminating lease

Maximum liability on termination of lease at the end of term

These provisions apply to all lease of goods other than lease of goods under residential tenancies and lease of goods for a term of less than four months.

Airlines

The passenger air carriers shall be required to provide for night accommodation, meals as may be prescribed for any delayed or cancelled flights.

 

 

The act establishes KCPA committee that shall aid in the formulation of policy related to consumer protection, accredited consumer organizations, advice consumers on the rights of responsibility, investigates complaints and establish conflict resolution mechanisms amongst other duties.

A breach of the Consumer Protection Act regulations the person liable to a fine not exceeding 500000/= or imprisonment of term not exceeding two years.

Obligation of service provider

A provider of service shall be liable to consumer for damages proximately caused by provision of service that have caused damages.

  1. Check date of manufacturing, expiry before purchase.
  2. Read ingredients/ components parts or instructions of the product/ service.
  3. Ask for qualification of the service provider, along with quality of the tools he intended to use for services.
  4. Insist about rate list/prices catalogue of product/services.
  5. Always get receipts of the product/service.
  6. Ask about return and refund policy
  7. Check design and standard of product.
  1. Duty to take care which includes the duty to have sufficient and correct information and knowledge about the consumer service and to duly evaluate the risks involved in it.
  2. Providing information about the service.
  3. Risk assessment and self control. This is a key element is safety planning and the operators duty to take care.
  4. Incident logging- the operator must inform the authority of accidents or hazardous situation occurring.
  5. Notification concerning dangerous services that is gyms, parks
  6. Service provider notification obligation
  7. The safety document- safety planning should be provided in writing.

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