SCHOOL OF LAW, ARTS AND SOCIAL SCIENCES

A RESEARCH PAPER SUBMITTED IN PARTIAL FULFILLMENT OF THE

DEGREE OF BACHELOR OF LAWS (LLB)
LCC 404: CONSUMER PROTECTION- 2022/2023

GROUP 5
NAMES REGISTRATION SIGNATURE
NO
KAMUHIA MAUREN L95/1811/2019

MICHELLE GACHAGO L95S/13888/2019

CHEBET JOY L95S/13889/2019

BERYL AKOTH L95S/13074/2019

BUYANZI SHARON L95/1790/2019

CHEPNGETICH FENEDY L95/1808/2019

AMINA ABDULLAHI L95S/13044/2019

HARRISON NJANE L95/1765/2019

MERCY MURREY L95/1788/2019

GACHOKA WARUI L95S/14421/2017

RATENG ODOYO L95/1818/2019

GILBERT ANBENJE L95S/14279/2019

EMILY KAVUTHA MUSILA L95S/13066/2019

i
Table of Contents
INTRODUCTION...........................................................................................................................................1
1.0 KENYA BUREAU OF STANDARDS............................................................................................................1
FAILURES OF KENYA BUREAU OF STANDARDS (KEBS).............................................................................3
2.0 COMMUNICATION AUTHORITY OF KENYA............................................................................................4
CHALLENGES FACED BY COMMUNICATION AUTHORITY OF KENYA IN CONSUMER PROTECTION........6
3.0 KENYA CONSUMER PROTECTION ADVISORY COMMITTEE....................................................................6
FAILURES OF THE CPAC............................................................................................................................8
4.0 DEPARTMENT OF WEIGHTS AND MEASURES........................................................................................9
ACHIEVEMENTS OF THE WEIGHTS AND MEASURES DEPARTMENT.........................................................9
FAILURE OF THE DEPARTMENT OF WEIGHT AND MEASURE.................................................................10
5.0 CENTRAL BANK OF KENYA...................................................................................................................10
Laws and regulation on consumer protection by CBK...........................................................................11
Consumer protection challenges in Kenya............................................................................................11
6.0 ANTI-COUNTERFEIT AUTHORITY..........................................................................................................12
THE ACHIEVEMENTS OF ANTI-COUNTERFEIT AUTHORITY.....................................................................13
THE FAILURES OF ANTI-COUNTERFEIT AUTHORITY...............................................................................14
7.0 INSURANCE REGULATORY AUTHORITY................................................................................................14
SUCCESSES OF INSURANCE REGULATORY AUTHORITY..........................................................................15
CHALLENGES FACING INSURANCE REGULATORY AUTHORITY...............................................................15
PETITION NO 622 OF 2014.....................................................................................................................16
REFERENCES.................................................................................................................................................i
STATUTES..................................................................................................................................................i
JOURNALS................................................................................................................................................ii
CASES.......................................................................................................................................................ii

ii
QUESTION 5

To what extent have the consumer protection watchdogs succeeded or failed in their
mandate? pick at least FIVE

 Kenya Bureau of Standards

 Communications Authority of Kenya
 Anti-counterfeit Authority
 Kenya Consumer Protection Advisory Committee
 Department of Weights and Measures
 Central Bank of Kenya
 Insurance Regulatory Authority

INTRODUCTION
The constitution of Kenya has established the rights of consumers to be protected. This is
achieved through provision of good and services of reasonable quality and the entitlement of
relevant information in order the goods and services can be of benefit to them. 1 Every consumer
should be assured of the safety to their health and economic interest. In the instance this is
violated, then they have a right to seek appropriate legal remedies. In fulfilment of this right, the
parliament is tasked with the obligation to ensure that they legislate in order to ensure fair and
honest practices. In order for this to be achieved, there are several entities that act as watchdogs
towards the realisation of this right. These organisations have been well discussed below.

1.0 KENYA BUREAU OF STANDARDS

The Kenya Bureau of Standards (KEBS) has remained the premier government agency for the
provision of Standards, Metrology and Conformity Assessment (SMCA) services since its
inception in 1974. Over that period its main activities have grown from the development of
standards and quality control for a limited number of locally made products to the provision of
more comprehensive Standards development, Metrology, Conformity Assessment, Training and

1
The Constitution of Kenya 2010, article 46.

1
Certification services. With the re-establishment of the East African Community (EAC) and
Common Market for Eastern and Southern Africa (COMESA), KEBS activities now include
participation in the development and implementation of SMCA activities at the regional level
where it participates in the harmonization of standards, measurements and conformity
assessment regimes for regional integration

In the case of Harley’s Limited v Kenya Bureau of Standards 2, the subject of appeal was
Draimaxx (adult disposable diaper) which the applicant dealt with in their line of whole sale
distribution and importation of pharmaceutical products in Kenya. KEBS inspector upon
collecting samples of diapers belonging to the applicant and testing found that they did not
conform to Kenyan standards. Inspectors have powers to seize and detain good that do not
conform to the standards3.The courts dismissed the appeal for the reason that the applicants
failed to meet the threshold and the diaper failed to meet the relevant quality mark and the
number of diapers in a pack were inaccurate. The goods were said to be unhealthy for usage.

Pursuant to Regulation 4 of the Alcohol Drinks control (licensing Regulation)4, persons who
wish to sell, dispose or import any alcoholic drink shall apply to the district committee for a
license. The Kenya Bureau of standards has over time and again worked with different agencies
time and again to determine whether a product is fit to enter the market. Alcohol Inter-agency
committee is the product of such. In the case of Republic v Kenya Bureau of standards Ex parte
Mountain Slopes commercial Services limited5, the interagency committee failed to renew the
license after the goods were deemed unfit for consumption.

Trademark Act pursuant to section 466, states that in all legal proceedings relating to trademark,
the fact that a person is registered as a proprietor of the trademark shall be prima facie of the
validity of the original registration of the trade mark. Subsequently, Section 10 authorizes
National standard council by notice in the Gazette to specify a separate mark known as
standardization mark. Where the Trade mark resembles others, then it will not be registered
under the Trade Marks Act. In the case of Thermos Hong Kong and another v Doshi
2
[2019] eKLR.
3
Standards Act Chapter 496, Section 14.
4
Regulation 4 of the alcohol drinks Control (licensing Regulation) 2010.
5
[2016] eKLR.
6
Trademark Act Chapter 506, section 46.

2
ironmongers limited7,the courts held that the trademark of `THERMOS’ belonged to Doshi and
no other company should use the same or any other name that resembles the same as it would
attract civil suit. The plaintiff was directed to recall all their goods from the market.

In the year 2022, KEBS blacklisted 14 maize floor brand after they failed to reach the quality
standards. The major concern was due to the high level of aflatoxin which leads to acute
poisoning thus damaging the liver. The toxins are caused by fungi found on agricultural goods.
KEBS director for market surveillance, Peter Kaigwara said they recently sampled and analyzed
brands of edible fats and oils manufactured by various oil refineries in Kenya.10 edible cooking
fats were flagged due to quality issues8.

In conclusion; as discussed above it is evident that Kenya bureau of standards as an entity has
carried out its mandate as per the Standards Act. The consumers’ right to quality goods have
been protected9.

FAILURES OF KENYA BUREAU OF STANDARDS (KEBS)

The KEBS; despites it being able to protects the rights of consumers by properly regulation the
quality of goods in the market, has also failed in certain areas as discussed herein below:

 KEBS has failed in ensuring that it tests and scrutinizes products in their respective
factories before they're released to the public. Instead, it warns the public when the
products have already been bought and consumed, thus endangering their health.
Examples is the ban on the 10 brands of cooking oil, maize flour brands with high levels
of aflatoxins and counterfeit drugs10.
 There has been loss of public confidence in the operation and functioning of KEBS
especially with regards to the lifting of the bans on certain products, without publicly

7
[2021] eKLR.
8
https://www.star.co.ke/news/2022-09-23-kebs-suspend-10-edible-fats-cookin-oil-bands-over-quality-concerns/
<accessed 4th march 2023>
9
Constitution of Kenya 2010, Article 46
10
Editorial ' Poor quality goods: KEBS must do better than this' (2021) <
https://www.google.com/amp/s/www.standardmedia.co.ke/amp/editorial/article/2001427911/poor-quality-
goods-kebs-must-do-better-than-this > (Accessed on 3rd March 2023).

3
 declaring that the said products have complied with the standards and if not, the penalties
meted on the manufacturers11.
 Failure to promote accountability and transparency in public procurement has resulted
law suits being lodged against it in the Public Procurement Administrative Review Board
(PPARB).12
 There is still the need to improve sanitation and hygiene in various eatery areas,
notwithstanding the requisite minimum standards in the hospitality industry. For instance,
in the famous "smocha and mtura areas".
 Counterfeit medicines and cosmetics still find their way in the streets especially in
Nairobi (River road)13, yet KEBS as the government watchdog is mandated with
prohibiting the sake of such products. (The ' dangerous Sophia pill').

2.0 COMMUNICATION AUTHORITY OF KENYA

The Communication Authority of Kenya was created by an act of the parliament to act as the
ICT regulator in Kenya. This ensures that the radio communications, courier and
telecommunication services are provided to the citizens therefore reaping the optimum benefit.
Further, besides providing such services they ensure the consumers interest are protected hence
have regulations stipulated to ensure their rights are catered for in the service provisions. The
authority in performing its function adhere to Constitution of Kenya, 2010 14and Information
and Communication Act15and its correspondent Regulation.16

Some of the achievement of CA in protecting consumer’s interest include:

11
Macharia Kamau ' KEBS in a tight spot amid calls for its disbandment' (2021) THE STARNDARD <
https://www.standardmedia.co.ke/business/financial-standard/article/2001350880 >.
12
TUV NORD Egypt v KBS & 5 others.
13
CitizenTvKenya<https://www.google.com/url?sa=t&source=web&rct=j&url=https://m.youtube.com/watch%3Fv
%3DPfX8QQCWVTU&ved=2ahUKEwjxuf_ftcD9AhUFSvEDHcwaAUoQjjh6BAgLEAI&usg=AOvVaw1_lxHlVZ3CB_TU7N
omE3Qx >
14
Constitution of Kenya 2010, Art 46.
15
Kenya Information and Communication Act 1998, sec 27.
16
Kenya Information and Communication Regulation 2010.

4
  Management of the frequency sphere. The authority has launched its first Third General
cellular mobile services license. This enables it to monitor the radio frequencies in an aim
to ensure the consumers do not suffer from disruption or any interference of the services.
This on the other hand has improved the performance of the radio frequency spectrum
therefore consumer receive quality services.17
 Regulating the tariffs impositions. The authority has greatly impacted positively on the
call charges in telecommunications. This is by issuance of Determination of
interconnection which specifies the interconnection rates between the
telecommunications operators’ company. Therefore, ensures consumers get affordable
services which corresponds to their considerations.
 Encouraging competitions among the service providers. The authority has licensed many
internet and network providers thus allowing for even greater choices of services
providers for consumers. For instance, telecommunication companies include Safaricom,
Airtel and Telkom Kenya. Notably, there are other upcoming telecommunications
operators such as Equitel. Thus, the establishment of more operators, has led decrease in
the price charges while increasing the quality favoring the end needs of the consumers
and the economy at large.18
 Provision of Consumer Education. The authority has an outreach Consumer Education
Programme which targets the nationwide. This has an effect of educating the users on the
current issues on communication industry. This has an impact of changing the
consumer’s views, aspects, and behavioral patterns on the services they provide. Further,
they create awareness on their rights as envisaged in the constitutions and other laws
formulated. Thus, enabling them to protect themselves against any form of exploitation.
 Provision of a complaint lodging Platform. This provides a way in which an aggrieved
consumer can file a complaint in regards to their grievances. This is done through writing
directed to the Director General with the attachment of relevant documents in relation to
the complaint. The authority has the power granted under the Information

17
Malala, Joy. "Consumer protection for mobile payments in Kenya :( KBA Centre for Research on Financial
Markets and Policy Working Paper Series 2013)
18
Nxele, Mike, and Thankom Arun. Regulatory Impact on the Development of the Telecommunications Sector in
East Africa: A case study of Kenya. (1649-2016-135906. 2005.)

5
 Communications Act 1998 to impose fines and penalties to any service provider who
does not compile with the regulations and conditions stipulated under the laws19.

CHALLENGES FACED BY COMMUNICATION AUTHORITY OF KENYA IN

CONSUMER PROTECTION
While it can be identified that the Communication Authority of Kenya has significantly
propelled its mandate, there are still a few challenges that hinder them from achieving their
objectives. Some of these include:

● Inadequate funding to deal with consumer complaints. Matters once reported to the
authority may take quite some time due to the unavailability of necessary resources to
enhance investigations of the same. This then demotivates people from making such
complaints. Additionally, it is expensive to install
● Insufficient information regarding consumer exploitation. While the authority is meant to
help in curbing malpractices, the same cannot be achieved in a case where either non
complaints are filed or there are no adequate investigations made.
● Inadequate interest among the consumers to take up legal issues. Filing complaints can be
expensive and time consuming and hence most consumers opt to let the misconducts
slide under the bridge.
● Increase in cybercrimes in Kenya. This is affecting the operations of the organization. It
has also let to funds being channel towards cyber security despite the limitations in terms
of funding.

3.0 KENYA CONSUMER PROTECTION ADVISORY

COMMITTEE
In Kenya, the Consumer Protection Advisory Committee (CPAC) was established in 201420 to
advise the government on matters relating to consumer protection. The specific act that outlines
the role of the Consumer Protection Advisory Committee (CPAC) in Kenya is the Consumer
Protection Act, 201221.
19
<https://www.ca.go.ke/consumers/ca-you/our-role-in-your-protection/ > accessed 3rd March 2023
20
The commission was established in line with art 46 of the COK 2010.
21
Consumer Protection Act, 2012, Sec (5) (6) (7).

6
Section 5 establishes the CPAC and outlines its functions, which include advising the
government on consumer protection policies, investigating consumer complaints, and promoting
consumer education and awareness. In promoting consumer protection, CPAC has achieved the
following;

 Promoting awareness of consumer rights: The CPAC has played a significant role in
raising awareness among Kenyan consumers about their rights and responsibilities.
Through various initiatives and programs like forums and use of media, the committee
has helped to educate consumers on issues such as product safety, fair pricing, and
consumer redress.
 Advocating for legislative reforms: The CPAC has made significant contributions to the
development of consumer protection laws and regulations in Kenya. The committee has
advocated for reforms in areas such as product safety standards, unfair trade practices,
and consumer redress mechanisms.
 Investigating and resolving consumer complaints: in the case of Eunice Wambui
Karanja v Nation Media Group Limited,22 the complainant filed a complaint with the
Consumer Protection Advisory Committee (CPAC) against the Nation Media Group
(NMG) for publishing a misleading advertisement. The CPAC investigated the matter
and recommended that NMG be fined for violating consumer protection laws. NMG
challenged the CPAC's decision in court, arguing that the committee did not have the
power to impose fines. The court held that the CPAC had the power to investigate
consumer complaints and make recommendations to the government. However, the
committee did not have the power to impose fines or penalties on businesses.
 The CPAC has investigated and resolved numerous consumer complaints in Kenya,
leading to improved consumer satisfaction and trust in the marketplace. The committee
has also made recommendations to the relevant authorities on measures that can be taken
to prevent similar complaints from occurring in the future.
 Collaborating with stakeholders: The CPAC has worked closely with businesses,
consumer organizations, and other stakeholders to improve consumer protection in
Kenya. Through these collaborations, the committee has been able to develop and
implement effective consumer protection programs and policies.
22
(2016) eKLR.

7
 FAILURES OF THE CPAC
 CPAC has not been effective in enforcing consumer protection laws in Kenya. Despite
the enactment of the Consumer Protection Act, businesses continue to sell substandard
and counterfeit products, make false claims in advertisements, and engage in unfair trade
practices. This is partly due to the weak enforcement mechanisms in place, which makes
it difficult to punish businesses that violate consumer protection laws.
 CPAC has not adequately represented the interests of consumers in Kenya. The
committee is made up of representatives from various government agencies, but there are
no representatives from consumer organizations or civil society. This means that the
committee may not be fully aware of the issues that consumers face in their interactions
with businesses. Therefore, the committee may not be effective in addressing the
concerns of consumers or advocating for their rights.23

The inefficiency of the committee has resulted from various aspects such as lack of resources
and political will of the government. The committee is an advisory body therefore its findings are
not binding. This was demonstrated in the case of Mr. Bernard Musyoka Mwalimu v DTV
24
Kenya Limited & 2 Others whereby the courts held that CPAC had the power to investigate
consumer complaints and make recommendations to the government. However, it had no binding
power to order DTV to compensate the complainant for the inconvenience caused.

In conclusion, the CPAC has made some successes in promoting consumer protection in Kenya,
but there is still room for improvement. The committee should work towards strengthening its
enforcement mechanisms, building partnerships with stakeholders, and increasing its resources
and capacity. With these efforts, the CPAC can become more effective in its mandate of
promoting consumer protection in Kenya.

4.0 DEPARTMENT OF WEIGHTS AND MEASURES

The Weights and Measures Service (also known as Legal Metrology Service) in Kenya was
started in 1912 with the enactment of the first Weights and Measures Act. It was mainly
concerned with inspection of weighing and measuring equipment used in trading activities to
23
Mwiti, G. K., & Kagira, J. M. An Analysis of Consumer Protection in Kenya. International Journal of Scientific and
Research Publications, 9(1), 2588-2592(2019)
24
Mr. Bernard Musyoka Mwalimu v DTV Kenya Limited & 2 Others [2020]

8
ensure that the equipment was stamped. The Department encompasses two Acts of parliament,
namely the Weights and Measures Act Cap.513, Laws of Kenya and the Trade Descriptions Act,
Cap.505, Laws of Kenya. These two Acts are not only the basis of the department’s mandate of
ensuring honesty and fairness in business transactions, but are also vital instruments for the
scientific, technical and industrial development of our country.

ACHIEVEMENTS OF THE WEIGHTS AND MEASURES DEPARTMENT

 Establishment of a uniform system of measurement in trade by ensuring that only the
authorized system of units used in trade in Kenya is The International System of Units
(SI). This system ensures the maintenance of standards of weight and measure which are
traceable to the International Standards and against which the accuracy of all other
standards of measurement used in trade in Kenya are tested. This prevents consumers
from being exploited by sellers or manufacturers as there is only one acceptable system
of measurement and they cannot alter it to their advantage.
 Conducting random inspections as a policing operation to check on the compliance with
any of the requirements of the law. This ensures that the equipment has been tested and
stamped as required under the law, the equipment still retains the accuracy it had when
last stamped and the equipment is being used properly.
 Standardization of the package sizes to help the consumer make price comparisons
without difficulty. The standardization is also in the interest of industry as it is one of the
factors preventing unfair competition in trade. In the absence of the standardization, there
would be a possibility of using “odd size” packages as a means of price-cutting in order
to take an unfair commercial advantage.
 By contributing to fair retail trade of our products, the Weights and Measures functions
also contribute to consumer confidence and to the enhancement of the consumers’
purchasing power thereby enhancing his ability to purchase more. This in turn accelerates
economic development of the country.
 By contributing to fair international trade of our products, the Weights and Measures
function also contribute to the country’s economic development. This is more so for a
developing country like Kenya whose economy is mainly based on the production of a
limited number of agricultural products and which has to import many manufactured
goods by weight or measure.
9
FAILURE OF THE DEPARTMENT OF WEIGHT AND MEASURE
 Failure to implement the provisions on breach of provisions of the Weight and Measure
Act. The laws provide on the means to be taken into consideration when the goods are
not per the stipulation of the act which tend to be more in theory form than being put in
practice.
 High level of corruption. The department of weight and measures has big challenge of
corruption. Individuals selling the goods and services tend to bribe the relevant authority
hence their goods and services may fail to be inspected hence are maybe be of lower
quality and quantity.
 Failure to measure other factors such as health measure of the goods to determine
whether it is good for consumption. The department is majorly concerned with the weight
hence do not give attention to such factors.
 Failure to curb misleading information on weight of goods. For example, in the
supermarkets they give offers on goods with misleading price hence manipulating
customers on buying the good with wrong weight.
 Failure to educate the public on their right to goods of high quantity and quality. Most
people do not know that they have right to buy goods and services of with correct weight.
 Failure to curb unlicensed manufacturer from manufacturer goods and providing services
of high quantity and quality.

5.0 CENTRAL BANK OF KENYA

The objectives of the Kenyan government's vision plan include fostering financial inclusion,
enhancing the accessibility and affordability of financial services, and boosting competition in
the industry to the advantage of consumers and the national economy.

The Ministry of Finance's CBK is in charge of formulating and carrying out monetary policy,
promoting liquidity, and ensuring the stability and proper operation of the financial system. The
Central Bank of Kenya Act gives the CBK authority to oversee banking operations in conformity
with the Banking Act. The CBK Act does not outline a clear consumer protection mandate. The
Banking Act creates the framework for CBK to oversee bank activities for the benefit of
consumer protection.

10
Laws and regulation on consumer protection by CBK
Banking Act provides specific guidelines on practices that affect consumers25;

 Section 11 prohibits, & holds bank officers accountable for fraudulent and reckless
behavior. Whereby, the term “fraudulent” under Banking Act include “intentional
deception, false and material representation, concealment or non-disclosure of a material
fact or misleading conduct.”
 Section 16A prohibits the charging of fees on savings and fixed deposit accounts.
 Section 33, authorize CBK to exercise intervention options in case a bank operates “in
any manner detrimental to or not in the best interest of its depositors or members of the
public.”
 Section 44A (1) -(3) restricts the maximum amount banks can recover on non-performing
loans under the In-Duplum rule.

The requirements to be fulfilled for raising the rate of banking and other fees are outlined in
the Banking Regulations of 2006. The CBK regulates deposit-taking MFIs in accordance
with the same standards used in banking regulations. The Microfinance (Deposit Taking
MFI) Regulations of 2008 prohibit reckless or fraudulent lending practices and specify know-
your-customer guidelines. The National Payment System Department of the CBK provides
monitoring for mobile and other microfinance service providers with an emphasis on the
integrity of IT and service delivery systems to protect consumers from operational and
financial failures of the MFSPs.

Consumer protection challenges in Kenya

 Kenya's lack of legal protection for financial consumers is the country's first problem.
Kenya doesn't have any legislation or rules governing non-bank businesses that provide
mobile banking services. The CBK Act does not outline a clear consumer protection
mandate.
 The lack of consumer participation in various financial institutions across the country and
the general lack of financial knowledge of the public pose challenges for CBK's
consumer protection. It is crucial to provide comprehensive consumer financial education
with an emphasis on legal requirements.

25
Laws of Kenya, The Banking Act, CAP 488.

11
  Lack of a predetermined standard of recourse, uncertainties regarding available
alternatives for recourse, and the legal foundation for consumer financial services are
additional challenges. The existing approaches for redress are not user-friendly or quick.
In order to protect consumers from dishonest financial service providers, there is a need
for a regulated recourse mechanism.
 Consumers of financial products frequently deal with 'fine print' issues including hidden
fees, rates and terms. Financial services' non-standardized terms make it challenging to
assess financial products for reasonable customer decisions. Strict laws to safeguard the
privacy of financial consumers' information and regulatory changes to increase public
confidence in the financial sector are needed.

6.0 ANTI-COUNTERFEIT AUTHORITY

In accordance with the Anti-Counterfeit Act, No. 13 Of 2008, the anti-counterfeit authority was
established as a state corporation with the responsibilities of educating and informing the public
about issues related to counterfeiting, combating counterfeiting, trade, and other dealings in
counterfeit goods, developing and promoting training programs to combat counterfeiting, and
coordinating with national, regional, or international organizations involved in combating
counterfeiting. Now, it operates as a state corporation within the state department for industry
under the ministry of investments, trade, and industry. The act, which was approved by Kenya’s
parliament in 2008, went into effect on July 1st 2009 with the main objective of outlawing the
trade in counterfeit goods. In June 2010, the authority began operating.26

THE ACHIEVEMENTS OF ANTI-COUNTERFEIT AUTHORITY

1. By adding the intellectual property rights recordation regulation to the anti-counterfeit act
and placing stricter regulations on intellectual property rights owners, Kenya’s anti-
counterfeiting authority (aca) has adopted a proactive stance and redoubled its efforts to
stop the trafficking in counterfeit goods.

26
Anti-Counterfeit Authority, <https://www.aca.go.ke > Accessed 06/03/2023

12
 2. Regardless of whether the intellectual property rights are registered in Kenya or
elsewhere, the new section 34B of the act mandates that a record of intellectual property
rights that relate to products being imported into Kenya be given to the ACA. 27
3. Initially, brand owners had the responsibility of keeping an eye on products marketed in
the Kenyan market prior to the recording of intellectual property rights and then reporting
any counterfeits to the aca. Hence, the recording of intellectual property rights will
considerably aid in preventing the trade in counterfeit goods, especially at border entry
points.
4. It is currently unlawful to import items into Kenya with a trade mark, trade name, or
copyright for commercial purposes unless the intellectual property rights is recorded,
which is a notable clause related to the recordation procedure.
5. Importers who do not follow this regulation risk criminal prosecution repercussions and
severe monetary punishment. A first-time offender faces a fine of three times the current
retail price of the products, while a repeat offender faces a fine of five times the current
retail price of the items. 28
6. The Authority also has reduced cases of counterfeit goods by impounding fake products
and instituting proceedings against those liable. 29

THE FAILURES OF ANTI-COUNTERFEIT AUTHORITY

The authority lacks political independence, which undermines its organized activities. It may
also be used as a political tool to witch hunt particular organizations, harming Kenya's
international standing. The most recent controversy on social media was generated by Nairobi-
based local traders who claimed that China Square was hurting their local economy by selling
inexpensive goods. As a result of the uproar in the public, the Authority secretly intervened and
took goods worth Ksh. 50 million while purportedly looking into any intellectual property rights
violations. On February 16, 2023, they carried out an inspection at the China Square Mall, which
27
Roschier, Changes to anti-counterfeiting rules in Kenya
<https://www.roschier.com/newsroom/changes-to-anti-counterfeiting-rules-in-kenya/ > Accessed 06/03/2023
28
Agnes Akal, David Opijah & John Syekei KENYA: The Anti-Counterfeit Authority’s Compliance Requirements for
Intellectual Property Rights Owners (Coulson Harney LLP, 2022)
< https://bowmanslaw.com/insights/intellectual-property/kenya-the-anti-counterfeit-authoritys-compliance-
requirements-for-intellectual-property-rights-owners/> Accessed 06/03/2023
29
Anti-Counterfeit Agency and another v Peter Mbaria Kariuki & 2 others [2021] eKLR

13
resulted in the in-situ confiscation of products, including hardware supplies and tools that
belonged to the brand owner. Moses Kuria, the Trade Cabinet Secretary, verified the facade
overall by announcing his plans to evict the proprietor of China Square from his place of
business.

Nevertheless, this witch hunt abruptly came to an end when Smith Mo revealed that it has
granted China Square a license to market its products under the trade name “Finder.” 30Not long
later, the Trade Cabinet secretary reversed course and offered to help the owner of China Square
establish a manufacturing facility in Kenya. Moreover, the Senate denounced such unstructured
engagements. 31

7.0 INSURANCE REGULATORY AUTHORITY

It is an autonomous government institution created through an Act of Parliament 32. They began
operations on 2007 taking up the former functions of the former Department of Insurance. The
main role is to regulate, supervise and develop the Insurance Industry in Kenya. They are in
charge of protecting interests of both policyholders and shareholders through the following
functions;

1. Ensuring effective regulation,k supervision and development of insurance in Kenya

2. Formulating and enforcing standards

3. Issuing licenses to all qualified persons in their various fields

4. Protecting interest of insurance policy holders and their beneficiaries

5. Ensuring the prompt settlement of claims

6. Investigating and prosecuting of insurance fraud

30
Citizen Digital, Anti-Counterfeit Authority releases goods seized at China Square,
<https://youtu.be/beb5jbdzz4q > Accessed 06/03/2023
31
Mwanawa Njuguna, CHINA SQUARE : Anti-counterfeit Authority seizes goods worth KES 50 million
<https://ntvkenya.co.ke/business/china-square-anti-counterfeit-authority-seizes-goods-worth-kes-50-million/ > Accessed
06/03/2023
32
The Laws of Kenya, Insurance Act Cap 487

14
It is headed by a Board of qualified and competent Board of Directors and is run by the
Commissioner of Insurance who is mandated to act as the CEO.

SUCCESSES OF INSURANCE REGULATORY AUTHORITY

 Consumer protection through the standardization of insurance policies. This ensures
that all language is used in small print explaining the policies which enables the
consumers to read and understand agreements and concerned regulations. This eases
compliance where policy requirements need to be fulfilled.33

 Consumer education has been established through the many guidelines provided to
conduct insurance business. Public education campaigns have been used to sensitize the
public on the mandate of the IRA. This promotes confidence in the insurance sector.

 Establishment of Policyholders Compensation Fund protecting policyholders from

exposed risks that they are insured against 34. It is supposed to promote confidence in the
insurance industry. It relieves policy holders from the suffering they might undergo when
an insurance company collapses35.

 Establishment of Insurance Fraud Investigation Unit which is aimed at confronting

insurance fraud. It was established in November 2011 and is manned by 11 CID Officers.

 Training of various groups of interests such as Traffic police officers.

CHALLENGES FACING INSURANCE REGULATORY AUTHORITY

 Uncertainties in the market increasing changing risk profiles and exposure.

 Unfavorable government regulatory practices

 Cybersecurity risks where massive amounts of personal insurance data are on the line

 Workflow inefficiency

 Poor consumer experience and satisfaction

33
https://www.ira.go.ke/images/docs/2020/THE-INSURANCE-ACT-REVISED-2020.pdf <Accessed on 10th March
2023>
34
https://www.ira.go.ke/images/docs/POLICY%20HOLDERS%20COMPENSATION%20FUND <Accessed on 10th
March 2023>
35
Section 179(2) of the Insurance Act (Finance Bill 2010)

15
PETITION NO 622 OF 2014
FACTS

The IRA is supposed to regulate and prescribe standards for the insurance industry as per the
Insurance Act and Insurance Amendment Act36. This authority was used to exercise statutory
power where the IRA issued to all insurance and reinsurance companies No. IC 07/2009 dated
20/11/2009 headed 'Motor Insurance Guidelines’37.

The guidelines gave effect to specific directives that made the insurance pricing for motor
vehicles a monopoly and converted the industry into a cartel, regardless of the lack of supporting
legislation and contrary to existing laws. This killed the incentive for the provision of quality,
affordable service. The guidelines contravened Articles 43 and 46 of the COK.

ISSUES

1. The jurisdiction of the High Court in determining whether the rights and fundamental
freedoms in the Bill of Rights have been denied or violated

2. The role of a statutory body (IRA) as stipulated by the law

HELD

Article 165(1) of the COK establishes the authority of the High Court to determine whether
fundamental rights in the Bill of Rights have been violated 38. Art. 23 provides that the High
Court, per Art. 165, determines applications for redress of a denial, violation, or infringement of
a right or fundamental freedom39.

The fundamental purpose of insurance regulatory law is to protect the public as insurance
consumers and policyholders. This involves activities such as licensing and regulating insurance
companies, monitoring and preserving the financial solvency of insurance companies, regulating

36
The Laws of Kenya, Insurance Act CAP 487
37
Motor Insurance Guidelines
38
Article 165(1) of the COK 2010
39
Article 23 of the COK 2010

16
and standardizing insurance policies and products. They also have the responsibility to control
market conduct by preventing unfair trade practices.

The court averred that its role is to quash decisions that are considered fundamentally detrimental
to the notion of rationality on the part of the decision-maker. This is founded on the principle of
judicial review in the case of Associated Provincial Picture Houses Ltd V Wednesbury
Corporation, made in 1948 by Lord Greene. He stated:

“If decision on a competent matter is so unreasonable that no reasonable authority could ever
have come to it, then the courts can interfere… but to prove a case of that kind would require
overwhelming evidence…” 40

This is considered the most potent enforcement of constitutional law41.

40
Associated Provincial Picture Houses Ltd V Wednesbury Corporation [1948]
41
Petition No 622 of 2014

17
REFERENCES

STATUTES
Anti-Counterfeit Act, No. 13 Of 2008
Banking Act, CAP 488.
Constitution of Kenya 2010.
Consumer protection act 2012.
Kenya Information and Communication Act 1998.
Kenya Information and Communication Regulation 2010.
Trade Description Act.
Weights and Measures Act.
Insurance Act of 2015.
Motor Insurance Guidelines.

JOURNALS
Malala J. "Consumer protection for mobile payments in Kenya :( KBA Centre for Research on
Financial Markets and Policy Working Paper Series 2013).
Nxele M, and Thankom a Regulatory Impact on the Development of the Telecommunications
Sector in East Africa: A case study of Kenya. (2005).
Mwiti, G. K., & Kagira, J. M. An Analysis of Consumer Protection in Kenya. International
Journal of Scientific and Research Publications, 9(1), 2588-2592(2019

CASES
Peter Waweru Wanyoike & Another v Bidco Africa Limited & 2 Others [2020] eKLR.

Mr. Bernard Musyoka Mwalimu v DTV Kenya Limited & 2 Others [2020].

Eunice Wambui Karanja v Nation Media Group Limited (2016) eKLR.

Associated Provincial Picture Houses Ltd V Wednesbury Corporation [1948]

Harley’s Limited v Kenya Bureau of Standards[2019]eKLR

i
Thermos Hong Kong and another v Doshi ironmongers limited[2021]eKLR

ii