The Legal Framework for Consumer Protection in Kenya
Consumers often encounter many challenges from the buying and consumption of goods and services/ These challenges are normally as a result of much power that businessmen wield compared to consumers. Some of the challenges that consumers face includes, false advertising, poor quality goods and services, harmful products, exorbitant prices, false information relating to products and services.
Prior to promulgation of the Constitution of Kenya,2010, no specific law provided for consumer protection, was provided in different statutes such as the Trade Descriptions Act, Standards Act, Weights and Measures Act, Restrictive Trade Practices, Monopolies and Price Control Act (now the Competition Act), the Foods, Drugs and Chemical Substances Act, the Pharmacy and Poisons Act, the Public Health Act, the Fertilizers and Animal Foodstuffs Act.
The Constitution of Kenya,2010, introduced consumer protection as one of the rights and fundamental freedoms under the Bill of Rights. Article 46(1) of the Constitution provides that the Consumers have the right—
(a) to goods and services of reasonable quality;
(b) to the information necessary for them to gain full benefit from goods and services;
(c) to the protection of their health, safety, and economic interests; and
(d) to compensation for loss or injury arising from defects in goods or services.
The Consumer Protection Act,2012 (hereinafter “the Act”) was enacted to give effect to Article 46 of the Constitution and to provide for the protection of the consumer as well as prevent unfair trade practices in consumer transaction. Part II of the Act provides consumer rights to ensure consumers are protected from exploitation by manufacturers and service providers. These rights include right to bring an action either on their own behalf or on behalf of a class of consumers. The Act recognizes that this right cannot be ousted by any consumer agreement. The implication of this is that any agreement that limits the right of consumer to bring an action against the manufacturer or service provider is void. Consumers also have right to quality goods and services. A supplier is deemed to warrant that the goods or services supplied under a consumer agreement are of reasonable merchantable quality.
The Act also protects consumers from ambiguity. Section 7 of the Act provides that an ambiguity in an agreement that allows for more than one reasonable interpretation will be interpreted for the benefit of the consumer. The Act also prohibits charging consumers for assistance they are entitled to under Act. The Act protects recipient of unsolicited goods by providing that a recipient of unsolicited goods or services has no legal obligation in respect of their use or disposal. A supplier of unsolicited goods shall not l demand payment or make any representation that suggests that a consumer is required to make payment in respect of any unsolicited goods or services despite their use, receipt, misuse, loss, damage or theft unless, if at the time of consumption, the consumer reasonably believed that the goods or services were meant for his consumption. A consumer who has made payments for unsolicited goods has a right under Section 10 of the Act to commence an action against the supplier. Section 11 of the Act prohibits advertisement an illegal internet gaming site.
The Act also recognizes unfair practices which traders should not involve themselves in. These unfair practices include false, misleading or deceptive representation, unconscionable representation and renegotiation of price. Section 14 of the Act provides that t is an unfair practice for a person to use his, her or its custody or control of a consumer’s goods to pressure the consumer into renegotiating the terms of a consumer transaction. The Act gives sanctions to manufacturers and service providers who engage in unfair practices. A consumer is entitled to rescind an agreement the consumer entered into after or while the trader engaged in unfair practices. The consumer is entitled to remedies including damages.
The Competition Act,2010 is also a legislation that protect consumers. The Act was enacted to promote and safeguard competition in the national economy; to protect consumers from unfair and misleading market conduct; to provide for the establishment, powers and functions of the Competition Authority and the Competition Tribunal which is a body that hears and determines disputes relating to unfair practices in competition amongst manufacturers and suppliers. The object of the Competition Act is to enhance the welfare of the people of Kenya by promoting and protecting effective competition in markets and preventing unfair and misleading market conduct throughout Kenya.
Enforcement and Redress Mechanism
The Standards Act establishes the Kenya Bureau of Standards (KEBS, which ensures that products meet quality and safety standards. This Act is crucial for maintaining consumer safety and confidence.
The Communication Authority of Kenya is mandated to regulate the communication sector to ensure the consumers are protected from unfair practices of telecommunications and broadcasting service providers. The Authority prescribes standards of operation, licenses as well as punishes service providers who flaunt the standards set.
The Anti-Counterfeit Authority combats counterfeit goods which pose significant risks and danger to consumers. The Authority receives complaints from consumers on counterfeit goods through a public platform on their website.
The Consumer Protection Act,2012 establishes the Kenya Consumer Protection Advisory Committee (KECOPAC) with a mandate to advise and ensure proper actions on all aspects related to consumer protection, formulate consumer protection policies, accredit consumer organizations, advise consumers on their rights and responsibilities, investigate complaints, monitor the working and enforcement of laws affecting the consumer and establish conflict resolution mechanisms amongst other duties.
The Kenya Bureau of Standards (KEBS), established under the Standards Act, is the body responsible for verifying the quality and safety standards of products and certifying the compliant industrial products. It has the power to cancel or suspend the operation of any permit or license of a defaulting manufacturer and to further prosecute such a defaulter for any offence under the Standards Act.
The Competition Authority of Kenya investigates consumer complaints, enforces compliance with the Consumer Protection Act, and takes action against violators. Consumers can complain directly to the Authority through the post, Email, Telephone call or walking into the Authority’s offices. The consumer is required to fill in a consumer complaint form and provide all the relevant information concerning the complaint.
Lastly, we have judicial system in Kenya which offers an avenue to redress consumer complaints. Consumers can file cases of violation of their rights and fundamental freedoms to courts and are entitled to remedies including award of damages.