A lady known as Ms. Donahue and a friend travel to Paisley from Glasgow and on the way they stop at a restaurant and decide to have some cool drinks including a ginger beer. The owner pours half of the drink into Ms. Donahue’s cup and the other half in her friend’s cup. By that time Ms. Donahue had already had a few sips of the ginger beer. Now as the other half was being poured into her friend’s cup the unbelievable happened! The remains of a snail in half a decomposed state dropped out the bottle and into the other cup. Miss Donahue went into a state of shock and had to see her doctor. She obviously suffered damages and filed a suit against the manufacturers of the ginger beer. The case was filed way back in the 1920s under tort laws and as any young law student will tell you, this is one of the first cases that is taught within the first semester under tort laws.
Before the Promulgation of the new Constitution in 1920s and before Kenya had a clear consumer law, consumer protection was accorded under torts law, the Sale of Goods Act, contract laws and the Restrictive Trade Practises Act. There was no clear consumer law. If like Miss Donahue you suffered any injury as a direct or indirect result of someone else’s actions the easiest redress for you was to file a suit under torts law.
However this has now changed with the enactment of two new laws and hopefully the successful enactment of a third law. In a jurisdiction where consumers are fairly sophisticated….it is hoped that these new laws will increase the level of consumer sophistication.
One such law is the new Constitution. Article 46 of the Constitution sets out consumer rights as basic human rights. This is quite in contrast to the old Constitution which did not contain such a provision. The right states that consumers have a right to goods and services of reasonable quality, they have a right to receive information to enable them gain full benefits of the goods and services, they have a right to protection of their health and compensation where any damage has been suffered. Pursuant to this, Parliament is expected to come up with a new consumer law within 4 years of the promulgation date.
The second law that is already in operation and that guarantees consumer welfare is enhanced, is the Competition Act enacted last year. Part VI of this Act sets out various offences against consumer’s interests. Some offences set out include false representations that would entice a consumer to buy a good or service. The Competition Act creates a Competition Authority which is charged with consumer protection.
A more detailed proposed law on consumer protection is the Consumer Bill. The Bill is much more detailed in its provisions than both the Constitution and the Competition Act. The Consumer Bill if passed, shall overhaul consumer protection in Kenya.
The Bill provides for class action suits. This means that many persons aggrieved by the same person e.g. a manufacturer can file a class action suit against him instead of filing individual suits.
Agreements between suppliers and consumers shall be heavily regulated if the Bill is passed. For example where a supplier charges and estimate fee for goods/services then he cannot exceed ten per cent of that fee in the final figure. The Bill also states that where there is ambiguity in an agreement then the same shall be interpreted to favour the consumer.
The Bill proposes a lot of regulation for some certain types of agreements between a supplier and consumer. Some include internet gaming agreements which have been criminalized. Time share agreements in real estate and for assets like yatches…must also be in writing. Internet agreements, credit card agreements and lease agreements are also all provided for under the Bill.
The Bill has not yet been passed but it remains to be seen if it will be enacted as it is. Some may argue that it tilts too much in favour of the consumer. However, the consumer especially in Kenya, has suffered injustice possibly due to lack of a clear consumer law. Others may argue that the Bill is too detailed and some of its provisions too harsh and oppressive to the manufacturers. For example for motor vehicle agreements, when it comes to repair, your mechanic is supposed to give you a warranty for any repairs undertaken. The warranty is meant to last for 90 days or to cover a distance of 5,000 kilometres.
However whether the new consumer laws are deemed to be too oppressive or are deemed to be sufficient what is clear is that they will overhaul consumer protection