An Overview of the Consumer Protection Act

A. Introduction

The purpose of the legislation is evidenced in the long title which identifies it as an Act to
provide for the protection of the consumer and prevent unfair trade practices in consumer
transactions.

B. PART I: The Preliminary

This comprises Sections 1-3 of the Act. A salient definition is Section 2 is the definition of
“consumer” which is broad and includes a person to whom goods and services are marketed,
a person who has entered into a transaction with a supplier, a user of goods or services
irrespective of whether the user was a party to the transaction on the supply of goods and
services and a franchise in terms of a franchise agreement.

Another interesting definition is that of “floating rate” which means a rate that bears a special
mathematical relationship to a public index that meets the prescribed requirements. This
means that banks will be controlled in terms of their setting of rates.

Section 3 (4 )sets out the detailed purpose of the Act which is to promote and advance the
social and economic welfare of the consumer through; -

a) establishing a legal framework for the achievement and maintenance of a consumer

market that is fair, accessible, efficient, sustainable and responsible for the benefit of
consumers generally;
b) reducing and ameliorating any disadvantages experienced in accessing any supply of
goods or services by consumers;
c) promoting fair and ethical business practices;
d) protecting consumers from all forms and means of unconscionable, unfair,
unreasonable, unjust or otherwise improper trade practices including deceptive,
misleading, unfair or fraudulent conduct;
e) improving consumer awareness and information and encouraging responsible and
informed consumer choice and behavior;
f) promoting consumer confidence, empowerment and the development of a culture of
consumer responsibility, through individual and group education, vigilance, advocacy
and activism;
g) providing a consistent, accessible and efficient system of consensual resolution of
disputes arising from consumer transactions; and
h) providing for an accessible, consistent, harmonized, effective and efficient system of
redress for consumers.

To achieve the above, Section 3 (5) requires the Kenya Consumers Protection Advisory
Committee to do the following;-

a) taking reasonable and practical measures to promote the purposes of this Act and to
protect and advance the interests of all consumers across all sectors of the economy,
whether of a private or public nature;
b) monitoring and reporting each year to the Cabinet Secretary on the availability of
goods and services including price and market conditions, annual state of consumer
protection report, conduct and trends affecting consumer rights and any other matter
relating to the supply of goods and services.

Section 3(3) allows the use of appropriate foreign law, international law, conventions,
declarations and protocols on consumer protection in the interpretation of the Act.

C. PART II: CONSUMER RIGHTS

This part includes sections 4-11. The consumers are entitled do the following privileges
and safeguards;-

a) a consumer can commence a class proceeding. A consumer can commence such

proceeding on behalf of a class of persons or may become a member of such class of
persons in a proceeding. Such proceeding can be initiated despite any provision in the
consumer agreement.
b) A dispute can be resolved by any means available in law.
c) The supplier is deemed to warrant that the goods or services supplied under a
consumer agreement are of a reasonably merchantable quality.
d) The conditions and warranties under the Sale of Goods Act apply to this Act with
necessary modification. Any provision in the Sale of Goods Act undermining the
warranties and conditions is void.
e) If a supplier gives an estimate, he shall not charge the consumer any amount
exceeding 10% of the estimate.
 f) A person is prohibited from charging a consumer for assisting the consumer to obtain
a benefit, right or protection which a consumer is entitled. There is an exception
where an alert is given.
g) Recipient of unsolicited goods or services has no obligation in respect of their use and
disposal.
h) Prohibition against advertising of illegal sites. No person shall advertise an internet
gaming site that is operated contrary to any written law.
D. PART III: UNFAIR PRACTICES

The part consists of sections 12-16 and the following are identifies as unfair practices;-

a) Making false, misleading or deceptive representation.

b) Making unconscionable representation.
c) To use one’s custody or control of consumer’s goods to pressure the consumer into
renegotiating the terms of a consumer transaction.

It is noteworthy that it is not unfair practice for a person on behalf of another person, to print,
publish, distribute, broadcast or telecast a representation that the person accepted in good
faith for printing, publishing, distributing, broadcasting or telecasting in the ordinary course
of business.

A consumer is allowed to rescind an agreement entered into following an unfair practice.

Oral evidence on unfair practice is admissible despite the existence of a written agreement
and despite the fact that the evidence pertains to a representation in respect of a term,
condition or undertaking that is or is not provided for in the agreement.

E. PART IV: RIGHTS OF OBLIGATIONS RESPECTING SPECIFIC

CONSUMER AGREEMENTS

The part consists of sections 17 to 38 and identifies a number of particular protected

agreements where a consumer has some rights including the right to have a copy of the
agreement within specified time period from the date of entering into the agreement and the
requirement that these agreements be in writing. Consumers have the liberty to cancel such
agreements without any reason and in some cases failure to comply with requirements of the
agreements renders the agreement void. Such agreements include future performance
agreements, time share agreements, personal development services agreements and internet
agreements.
For future performance agreements, for example, a supplier cannot repossess or resell goods
for default in payment by the consumer if the consumer has paid two-thirds of the payment
unless the supplier seeks leave of court.

F. PART V: SECTORS WHERE ADVANCE FEE IS PROHIBITED

This part comprises of sections 39-43 and identifies sectors in which an operator cannot
charge a consumer any fee until the consumer actually benefits from the intended service.
These sectors are loan brokering, credit repair and any other prescribed supply of goods and
services.

In these sectors there is a requirement that the agreements must be in writing and should be
delivered to the consumer. Within 10 days of entering into such agreements, the consumer
can cancel the agreement without any reason. The consumer is also entitled to cancellation of
the agreements within one year of not receiving a copy of the agreement from the supplier.

G. PART VI: REPAIR OF MOTOR VEHICLES AND OTHER GOODS

The part consists of section 44-52. A repairer of motor vehicle must give an estimate of the
costs to the consumer unless the consumer declines the estimate, or the consumer authorizes a
maximum for which the consumer is willing to pay and the costs actually do not exceed the
authorized maximum. A repairer cannot charge a fee for preparing an estimate unless the
consumer is alerted of the payment before the estimate is given.

The repairer is required to return all parts removed in the course of the work. He/she should
give an invoice with prescribed information in a prescribed manner. He/she also guarantees
that all new or reconditioned parts installed and the labour required to install them for a
minimum of ninety days or five thousand kilometers, whichever comes first, or such greater
minimum as may be prescribed.

The repairer is not allowed to overcharge for a service just because the payment will be done
by an insurance company.

Other parts in the Act include provisions on credit agreements, leasing, procedure for
consumer remedies and the Kenya Consumers Protection Advisory Committee.