GROUP TWO

ANALYSIS OF THE CONSUMER PROTECTION ACT

GROUP MEMBERS
1. Kariuki Rose Wendy Muthanje G34/3558/2020

2. Murkomen Joy Jemutai G34/139948/2020

3. Salome Nduku G34/140563/2020

4 Njeri Naomi Nditi G34/3518/2020

5. Macharia Brian Methu G34/139954/2020

6. Kimani Elsie Clare Njeri G34/140010/2020

7. Garang Amol G34/141747/2021

8. William Salome Ngena G34/3494/2020

9.Njoroge Esther Wambui G34/140830/2020

10. Samwel Marvin Waeme G34/140079/2020

11.Obare Glorine Kerubo G34/140027/2020

12. Margaret Wairimu Kaberi G34/3484/2020

13. Wangunyu Cynthia Wambui G34/139863/2020

14.Birisio Anna Moraa G34/3502/2020

15. Muthoni Jane Wanjiru G34/ 140091/2020

Consumer Protection Act, 2012

Introduction

Consumer Protection Act History and Development

There were no consumer protection laws in place before the promulgation of the 2010

Constitution of Kenya. There was minimal legislation specifically addressing consumer rights

and protection. Some aspects of consumer protection were covered in various pieces of

legislation including the Trade Descriptions Act, Standards Act, Weights and Measures Act,

Restrictive Trade Practices, Monopolies and Price Control Act (now known as 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, as well as private law measures in the

law of contract and the law of tort.1

The Monopolies and Prices Commission Act of 1970 was one of the early attempts to address

consumer rights by regulating prices and monopolistic practices.

The Consumer Protection Act, of 2012 has its foundation in Article 46 of the Constitution of

Kenya, 2010.2 The Consumer Protection Bill was passed by the Kenyan Parliament, was

assented on 13th December 2012 and became effective on 14th March 2013. The legislation's

purpose was to have the consumers’ interests in health, safety, and economy protected as well as

ensuring compensation for the loss or injury arising from defects in goods or services. The Act’s

preamble provides that the enactment is an “Act of Parliament to provide for the protection of

the consumer, prevent unfair trade practices in consumer transactions, and to provide for matters

connected with and incidental thereto”3.

1
Cindy Oraro/ Jill Barasa, Consumer Protection Law in Kenya, < https://www.oraro.co.ke/consumer-protection-law-
in-kenya/ > accessed 23 November.
2
Parliament shall enact legislation to provide for consumer protection and for fair, honest and decent advertising
3
The Consumer Protection Act, 2012.
 The International Organization of Standards (ISO) defines a consumer as an individual member

of the general public purchasing or using goods, property or services for private purposes. This

definition is wider in the sense that it covers both contractual and non contractual consumers

such as in the case of Donoghue v Stevenson where it was held that a manufacturer is liable for

defective products to the ultimate consumer even if there was no contractual relationship

between them. The Act defines the word consumer under section 2.4 Consumer protection

therefore involves two aspects; a preventive one and a remedial one. The former encompasses

measures that regulate supply and quality of goods and services ensuring that the consumer is

not reaped off. It also includes education of a consumer to make him conversant with variety of

goods and services available to him thus enabling him to make an informed choice on a

particular product or service. The remedial/ restorative measure is concerned with measures of

interest for those consumers whose interests and rights have been adversely affected. In the case

of Gladys Karimi Musyimi v Fahari Cars Ltd and another, the plaintiff claimed entitlement

to exemplary and punitive damages as provided under section 84(3) of the Consumer Protection

Act where her vehicle was repossessed by the seller despite having made two third of the

payment upon default. The court awarded the plaintiff the exemplary damages noting that the

4
"consumer" means—(a) a person to whom particular goods or services are marketed in the ordinary course of
the supplier’s business;

(b) a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business,
unless the transaction is exempt from the application of this Act;

(c) a user of particular goods or a recipient or beneficiary of particular services, irrespective of whether that user,
recipient or beneficiary was a party to a transaction concerning the supply of those

particular goods and services; and

(d) a franchisee in terms of a franchise agreement, to the extent applicable in terms of this Act;
 plaintiff derived a benefit of using the vehicle for over 11 months.5 To this regard, the Act sets

out consumers’ rights and obligations with respect to a product or service, makes provision for

the promotion and enforcement of consumer rights as well as empowers consumers to seek

redress for infringement of their rights as consumers.

Consumers’ Rights and Obligations With Respect To a Product or Service

The rights and obligations vary with respect to the following specific types of agreements;

1) Future performance agreements

2) Personal development services
3) Internet agreements

4) Direct agreements

5) Remote agreements

The Act describes a consumer agreement to mean, “an agreement between a supplier and a

consumer in which the supplier agrees to supply goods or services for payment”

1) Future Performance Agreements

Every future performance agreement shall be in writing, shall be delivered to the consumer

and shall be made in accordance with the prescribed requirements.6 Section 19 provides that,

“A consumer may cancel a future performance agreement within one year after the date of

entering into the agreement if the consumer does not receive a copy of the agreement that

meets the requirements under section 18.” In the case of Lilian Wairimu Mute v Sleek

Trading Limited and Another, the court held that if a consumer cancelled a consumer

5
Gladys Karimi Musyimi v Fahari Cars Ltd and another [2021] eKLR
6
The Consumer Protection Act, 2012 s.18
 agreement the supplier shall unless contrary is provided for in the agreement in accordance

with prescribed requirements; refund to the consumer any payments made under the

agreement or any related agreements.7

A consumer has the right to retain a product or service upon default but after making a

payment of two- thirds as earlier seen in the case of Gladys Karimi Musyimi v Fahari Cars Ltd

and another.

A consumer has also the right to cancel a future performance agreement due to late delivery

or lack of a specified delivery/ commencement date as discussed in section 21.

2) Personal Development Services

Every personal development services agreement shall be—(a) in writing ;(b) delivered to the

consumer ;(c) made in accordance with the prescribed requirements.8 A consumer is obligated

to make a personal development services agreement for one year. A consumer is obligated to

have a different agreement for different services provided.

A consumer has the right to, without any reason, cancel a personal development services

agreement at different times as illustrated under section 29.9

7
Lilian Wairimu Mute v Sleek Trading Limited and Another (2019) eKLR

8
The Consumer Protection Act, 2012 s.24(1)
9
(1) A consumer may, without any reason, cancel a personal development services agreement at any time within ten
days after the later of receiving the written copy of the agreement and the day all the services are available.
(2) In addition to the right under subsection (1), a consumer may cancel a personal development services
agreement within one year after the date of entering into the agreement if the consumer does not receive a copy
of the

agreement that meets the requirements under section 24.

 3) Internet Agreements

On internet agreement, the consumer has the right to access the prescribed information and the

express opportunity to accept or decline the agreement and to correct errors immediately

before entering into it.10 The Advisory Committee has the responsibility of advising the Trade

Minister on emerging threats to consumer protection and the relevant action to be taken to

increase consumer protection. Section 2 defines an "internet agreement" to mean a consumer

agreement formed by text-based internet communications. Such online agreements are still

subject to essentials and formalities of contract although they are kind of different e.g. signing

of contracts online etc.11 For instance in the case of Rosenfeld v. Zerneck the New York

Supreme Court conceded that email is a valid form of communicating and accepting an

offer.12 Computer software program is also an example of a digital product but the category is

wide and goes beyond software. Computer software is itself a wide category, embracing

operating systems, utility programs, databases and games but the category of digital products

extends beyond this to include music, films, books and so on downloaded from the Internet or

supplied via some physical medium, such as the CD or DVD. Nor is the category of digital

products limited to those for use on a computer. An application for a mobile phone is a digital

product, as is a ring tone downloaded for the phone; indeed, both are computer programs, even

if they are not immediately recognized as such, and therefore digital products.13 A modern

development is so-called "cloud computing" which, rather than supplying the consumer with a

copy of the program, involves the software supplier allowing the consumer to access the

program supplier's server via the Internet. This sort of arrangement more closely resembles

10
The Consumer Protection Act, 2012 s.31
11
Stephen W. Makau, Rights and Obligations of Consumers with Respect to Specific Consumer Agreements in
Kenya
12
Rosenfeld v. Zerneck [2004] 776 N.Y.2d 458
13
Professor Robert Bradgate, Consumer Rights In Digital Products, 2010 p 12-13
 the supply of a service such as telephony, or rental of premises than a contract for the supply

of goods.14

It is worth noting that Internet Agreements can fall under Remote Agreements i.e. an

agreement entered into when the consumer and supplier are not present together.15

The internet agreement gives rise to the consumer's rights such as the right to disclosure of
information on Internet Agreement (section 31), the right to a copy of Internet Agreement (section
32) and the right to cancel Internet Agreement (section 33). The right to cancel an internet
agreement was emphasized in the case of Mr. Weldon vs. Gamcode Ltd (Betin Kenya) whereby
the complainant claimed that he placed a bet, and the outcome of the game was exactly as he had
predicted. However, Gamcode cancelled his bet immediately the results were known. The
Competition Authority of Kenya investigated the matter and the complainant was compensated.
Additionally, the Authority sent a warning letter to Gamcode and required them to ensure the
following: i) Consumers are informed of any changes/cancellation immediately an error is
detected by the company (Strictly before the start of the matches);
ii) Consumers have a right to cancel the Bet. The cash out feature should be available in the
published Bets in order to offer consumers an opportunity to cancel the Bet, in case they

change their mind; and

iii) In the event a Bet is cancelled, consumers should be refunded.

4) Direct Agreements

Every direct agreement shall be in writing, shall be delivered to the consumer and shall be

made in accordance with the prescribed requirements.16

A consumer has the right to cancel his/her direct agreements as expounded under section 35.

14
Ibid, p 14
15
Stephen W. Makau, Rights and Obligations of Consumers with Respect to Specific Consumer Agreements in Kenya

16
The Consumer Protection Act, 2012 s,34
 5) Remote Agreements

On remote agreement, a consumer has the right to prescribed information, a copy of the

agreement and the right to cancel the agreement. Misrepresentation of the goods can be a

ground for the cancelation of the contract.

Promotion and Enforcement of Consumer Rights under the Consumer Protection Act, 2012
The process of promotion of a right includes a goal, a process and an outcome.17 The goal being the
rights to be protected and enforced including all the processes of development cooperation with
regards to the right; The process being the standards and principles that guide the development
cooperation and programs in all relevant sectors; and the outcome being the contribution of the
capacities of stakeholders to realize their rights and/or of those stakeholders to claim for their rights.

Enforcement, on the other hand, is the act or process of compelling compliance with a law, mandate,
command, decree or agreement and includes discovering, deterring, rehabilitating or punishing people
who commit offences under the law.

1. The Aim
Consumer Rights
The Constitution of Kenya, 2010 that provides at Section 46 that consumers have the right to goods and
services of reasonable quality; information necessary for them to gain full benefit from goods and
services; protection of their health, safety, and economic interests; and compensation for loss or injury
arising from defects in goods or services.

Pursuant to the provisions of Section 46(2) of the Constitution, 2010, the Consumer Protection Act, 2012
(hereinafter “the Act”) seeks to provide for the protection of the consumer including the prevention of
unfair practices in consumer transactions.18 The Act provides for consumer rights19 including;

i. Quality Goods and Services20

17
United Nations Agencies Statement of Common Understanding on the Human Rights Based Approach to
Development Cooperation
18
Preamble, Consumer Protection Act No. 46 of 2012
19
Part II, Consumer Protection Act No. 46 of 2012
20
Section 5, Consumer Protection Act No. 46 of 2012
 The Act guarantees the consumers’ right to quality goods and services by providing
that the supplier of a good or service is deemed to warrant that the goods or services
supplied ate of a reasonably merchantable quality. 21 The Act does not define
‘merchantable quality’ but the Court of Appeal in Wood Products Limited v Rufus
Kithela Kobia [2019] eKLR noted that, as generally stated in legal textbooks, goods
are of ‘merchantable quality’ if they are reasonably fit for the purpose or purposes for
which goods of that kind are generally bought.
The Act further provides that the implied conditions and warranties applying to the sale
of goods under the Sale of Goods Act (Cap. 31) shall apply with necessary
modifications to goods that are leased, traded or otherwise supplied under a consumer
agreement.22

The Act also provides that any provision, whether part of the agreement or not,
purporting to negate or vary any implied condition under the Act is void;23 and that
such term is severable from the agreement and shall not be evidence of intent that the
implied warranty or condition does not apply.24

ii. Estimates25
Where there is an approximate of the total cost of work for goods or repairs to be done
on the goods, the Act provides that the supplier shall not charge the consumer an
amount that exceeds the estimated total cost by more than 10 percent; 26 and provides
that if the supplier charges more than 10 percent of the estimated price, the consumer
may require that the goods or services be provided at the estimated price.27

iii. Ambiguities28

21
Section 5 (1), Consumer Protection Act No. 46 of 2012
22
Section 5 (2), Consumer Protection Act No. 46 of 2012
23
Section 5 (3), Consumer Protection Act No. 46 of 2012
24
Section 5 (4), Consumer Protection Act No. 46 of 2012
25
Section 6, Consumer Protection Act No. 46 of 2012
26
Section 6(1), Consumer Protection Act No. 46 of 2012
27
Section 6 (2), Consumer Protection Act No. 46 of 2012
28
Section 7, Consumer Protection Act No. 46 of 2012
 The Act provides that any ambiguity allowing for more than one reasonable
interpretation of a consumer agreement provided by the supplier to the consumer or of
any information that must be disclosed under the Act shall be interpreted to the benefit
of the consumer.

iv. Charging Consumers for Assistance29

No person shall charge a consumer for assisting the consumer to obtain any benefit,
right or protection to which the consumer is entitled under this Act, unless, before the
consumer agrees to pay the charge, the person discloses the entitlement’s existence and
direct availability to the consumer and the cost, if any, the consumer would be required
to pay for the entitlement if the consumer obtained the entitlement directly.

v. Unsolicited Goods and Services30

These are goods or services that are supplied to a consumer who did not request for
them. The Act has provisions in relation to a consumers legal obligation/non-obligation
in respect to the use or disposal of unsolicited goods and services; no requirement for
payment if at the time of consumption, the consumer reasonably believed that the goods
or services were meant for his consumption; material changes in goods and services
that are received on an ongoing and periodic basis and there is a material change in
such goods and services; and demands for refunds for unsolicited goods and services.

Unfair Practices
The Act also aims to prevent unfair and deceptive practices. These include false, misleading or deceptive
representations.31 The Act provides non-exhaustive lists of what constitutes:

i. False, misleading or deceptive representations32;

- A representation:

29
Section 8, Consumer Protection Act No. 46 of 2012
30
Section 9, Consumer Protection Act No. 46 of 2012
31
Section 12(1), Consumer Protection Act No. 46 of 2012
32
Section 12 (2), Consumer Protection Act No. 46 of 2012
 That the goods or services have sponsorship, approval, performance
characteristics, accessories, uses, ingredients, benefits or qualities they do not
have;
 the person who is to supply the goods or services has sponsorship, approval, status,
affiliation or connection the person does not have;
 that the goods or services are of a particular standard, quality, grade, style or
model, if they are not;
 that the goods are new, or unused, if they are not or are reconditioned or reclaimed,
but the reasonable use of goods to enable the person to service, prepare, test and
deliver the goods does not result in the goods being deemed to be used for the
purposes of this paragraph;
 that the goods have been used to an extent that is materially different from the
fact;
 that the goods or services are available for a reason that does not exist;
 the goods or services have been supplied in accordance with a previous
representation, if they have not;
 that the goods or services or any part of them are available or can be delivered or
performed when the person making the representation knows or ought to know
they are not available or cannot be delivered or performed;
 that the goods or services or any part of them will be available or can be delivered
or performed by a specified time when the person making the representation
knows or ought to know they will not be available or cannot be delivered or
performed by the specified time;
 that a service, part, replacement or repair is needed or advisable, if it is not;
 that a specific price advantage exists, if it does not;
 that misrepresents the authority of a salesperson, representative, employee or
agent to negotiate the final terms of the agreement;
 that the transaction involves or does not involve rights, remedies or obligations if
the representation is false, misleading or deceptive;
 that misrepresents the purpose or intent of any solicitation of or any
communication with a consumer;
  that misrepresents or exaggerates the benefits that are likely to flow to a consumer
if the consumer helps a person obtain new or potential customers;
 Unconscionable representation.
Justice P.J Otieno, in the case of Lucy Wairimu Mute (supra) where he stated: -
“…13. The statute reveals its purpose at the preamble to be the protection of consumers,
prevention of unfair trade practices in consumer transactions and for related purposes. Thus
when it provides that no repossession of retaking of possession is permissible once 2/3 of the
purchase price is paid it leave no other interpretation than retaking is forbidden without the
leave of the court first sought and obtained.

14. Put in the context of this case does it matter not that the agreement between the parties
provided for repossession without regard to the level and extent of payment made…”

ii. Unconscionable Representation33

- A representation is unconscionable when the person making the representation or
the person’s employer or principal knows or ought to know:
 that the consumer is not reasonably able to protect his or her interests because of
disability, ignorance, illiteracy, inability to understand the language of an
agreement or similar factors;
 that the price grossly exceeds the price at which similar goods or services are
readily available to like consumers;
 that the consumer is unable to receive a substantial benefit from the subject matter
of the representation;
 that there is no reasonable probability of payment of the obligation in full by the
consumer;
 that the consumer transaction is excessively one-sided in favor of someone other
than the consumer;
 that the terms of the consumer transaction are so adverse to the consumer as to be
inequitable;
 that a statement of opinion is misleading and the consumer is likely to rely on it
to his or her detriment; or

33
Section 13 (2), Consumer Protection Act No. 46 of 2012
  that the consumer is being subjected to undue pressure to enter into a consumer
transaction.

Unfair trade practice also includes where a person uses his or her or its custody or control of a
consumer’s goods to pressure the consumer into renegotiating the terms of a consumer transaction.

2. The Process
The Kenya Consumers Protection Advisory Committee

The Consumer Protection Act, 2012 establishes at Section 89 the Kenya Consumers Protection Advisory
Committee. (hereinafter “the KECOPAC”) which is the main body charged with ensuring the realization
of and enjoyment of consumer rights recognized under the Act as well as monitoring the working and
enforcement of laws that directly or indirectly affect the consumer.

a. Membership of the KECOPAC34

The Committee consists of:

i. A Chairperson;
ii. The Permanent Secretary in the ministry for the time being responsible for matters relating
to trade and industry;
iii. The Attorney General;
iv. Four persons nominated by accredited consumer organizations in such manner as may be
prescribed;
v. One person nominated by the Kenya Bureau of Standards;
vi. One person nominated by the Kenya Medical Association;
vii. One person nominated by the Kenya Association of Manufacturers;
viii. One person with experience in banking, accounting, economics or insurance matters; and
ix. One person nominated by the Law Society of Kenya.

34
Section 89, Consumer Protection Act No. 46 of 2012
 b. Functions of the KECOPAC
The Committee is generally required to take any reasonable and practical measures to promote the
purposes of the Act and to protect and advance the interests of all consumers across all sectors of the
economy, whether of a private or public nature and to monitor, among others, conduct and trends
affecting consumer rights. 35 In order to realize the enjoyment of consumer rights recognized and
conferred under the Act, the KCPAC carries out the following roles36:

Advisory

i. Advise the Cabinet Secretary and ensure relevant action on all aspects relating to consumer
protection;
ii. providing advice to consumers on their rights and responsibilities under appropriate laws, and
making available to consumers general information affecting the interest of consumers;

Discovery

i. Formulate policy relating to the Act and legislative proposals in the interests of consumers
and the modification, consolidation or updating of legislation providing protection to
consumers in the areas covered under, or related to this Act.
ii. undertaking or commissioning any study or research which may be necessary to promote
consumer protection and thereby publish the State of National and County Consumer
Protection Annual Report;
iii. drawing up and reviewing consumer protection directives and minimum service standards for
submission to the Cabinet Secretary;

Consumer Education

i. promotion or participation in consumer education programmes, locally and elsewhere, and

activities, the dissemination of consumer issues with a view to proposing corrective measures;

Facilitation

i. The co-ordination and networking of consumer activities and the development of linkages
with consumer organizations and the competent authorities and agencies locally and outside
Kenya for the protection of consumer interests;

35
Section 3(5), Consumer Protection Act No. 46 of 2012
36
Section 90, Consumer Protection Act No. 46 of 2012
 ii. creating or facilitating the establishment of conflict resolution mechanisms on consumer
issues, investigation of any complaints received regarding consumer issues, and where
appropriate, referring the complaint to the appropriate competent authority and ensuring
that action has been taken by the competent authority to whom the complaint has been
referred;
iii. working in consultation with the Chief Justice, County governors and other relevant
institutions on the establishment of dispute resolution mechanisms

Monitoring

i. monitoring and keeping under review the trading and business practices relating to the supply
of goods and services to consumers and to activities related or ancillary thereto;
ii. monitoring the working and enforcement of laws that directly or indirectly affect the
consumer;
iii. examining and determining whether a consumer association has the requirements to be an
accredited consumer organization in accordance with this Act; and
iv. monitoring the development of consumer associations and drawing up and reviewing the
rules of practice for registered consumer associations;
v. doing anything or all things that are necessary, expedient or convenient for or in connection
with the performance of its functions under this Act.

3. The Outcome
The recognition of unfair practices by the Consumer Protection Act allows for the enforcement of
consumer rights by enabling there to be recourse for consumers through compensatory or punitive
damages. To that end, the Act provides:
a. Class Proceedings – Section 4
The Act provides that a consumer may commence a proceeding on behalf of a class of
persons or may become a member of such class of persons in a proceeding in respect of a
dispute arising out of a consumer agreement despite any term or acknowledgment in the
consumer agreement or other agreement that purports to prevent or has the effect of
preventing the consumer from commencing or becoming a member of a class proceeding.
b. Commencement of Action by Consumers – Section 10, 84
The Act provides at Section 84 that a consumer has a right to commence an action under the Act
in the appropriate Court and where successful the Court, unless in the circumstances it would be
inequitable to do so, shall order that the consumer recover-

i. That full payment to which he or she is entitled under the Act, and
ii. All goods delivered under a trade-in agreement or an amount equal to the trade-in
allowance.

In Safaricom PLC v Kafwa (Civil Appeal E191 of 2022) [2023] KEHC 19109 (KLR) (Civ) (21 June
2023) (Judgment) Safaricom PLC (appellant) was appealing a judgement in favor of Ronald
Kafwa (respondent) after the respondent successfully claimed against the appellant seeking a
refund for money which was withdrawn from his mpesa account after he had lost his mobile
phone and took necessary steps to block all the transactions.

The appellant argued that the monies lost by the respondent originated from the respondent’s
m-shwari account and that the m-shwari terms and conditions stated that the appellant was not
responsible for ensuring the security of funds in m-shwari as that is a service provided by NCBA
Bank to it’s customers. Further, that it did not jointly otherwise operate the Mshwari product or
its security protocols, and consequently, it bore no responsibility for third-party products that
are linked to its M-pesa service as indicated in its terms and conditions.

In dismissing the appeal, the Court held that the involvement of the appellants was
indispensable whether there was a 3rd party involved or not. That; the appellant owed the
respondent a fiduciary duty of care to act with diligence after the respondent reported the loss
of this telephone and took all the necessary steps to have all the transactions blocked.

We see in the case of Lucy Wairimu Mute v Sleek Trading Limited & another [2019] Eklr, Justice
P.J Otieno states that it’s “the defendant’s obligation first and foremost is the refund of all the
sums paid under the cancelled agreement. It being admitted that Kshs.2, 200,000/= had been
paid on the date the repossession was conducted that sum is due and payable to the plaintiff by
the defendant. I therefore find that under Section 80 and 84 of the Act, the plaintiff is entitled to
the remedy of refund and, therefore, I do entire judgment for the plaintiff in the sum of
Kshs.2,200,000/= together with interest at court rates from the date the defendant retook
possession till the date the sum shall have been paid in full.”
This right to commence legal action for enforcement of consumer rights has had the effect of making
companies and cooporations proactive in relation to consumer rights including ensuring compliance
with all relevant laws and regulations as well as the involvement of stakeholders in identifying and
addressing potential issues before they escalate into legal disputes.

TYPE OF LEGAL REDRESS IN THE CONSUMER PROTECTION ACT.

The Consumer Protection Act of 2012 in Kenya provides legal redress in the form of remedies
including compensation, replacement, repair, and refund for consumers affected by unfair trade
practices, defective goods, or substandard services.

REMEDIES UNDER SECTION 16 OF THE CONSUMER PROTECTION ACT

The Act prohibits ‘unfair trade practices’ and proceeds to provide for radical sanctions against a
supplier who engages in unfair practices. Under part III, Section 16, of the consumer protection
act, the consumer has the following remedies against unfair trade practices:

Where a consumer enters into an agreement, whether written, oral, or implied, after or while a
person has engaged in an unfair practice may be rescinded by the consumer, and the consumer is
entitled to any remedy that is available in law, including damages. Damages in this case will
generally equate to the cost of repair or replacement.

A consumer is entitled to recover the amount by which the consumer’s payment under the
agreement exceeds the value that the goods or services have to the consumer or to recover
damages, or both, if rescission of the agreement under subsection (1) is not possible—

a) because the return or restitution of the goods or services is no longer possible; or

b) because rescission would deprive a third party of a right in the subject-matter of the
agreement that the third party has acquired in good faith and for value.
The consumer may express notice in any way as long as it indicates the intention of the consumer
to rescind the agreement or to seek recovery where rescission is not possible and the reasons for
so doing, and the notice meets any requirements that may be prescribed. Notice may be delivered
in the manner used when entering into the contract. If notice is delivered other than by personal
service, the notice shall be deemed to have been given when sent.

The consumer may send or deliver the notice to the person with whom the consumer contracted at
the address set out in the agreement or, if the consumer did not receive a written copy of the
agreement or the address of the person was not set out in the agreement, the consumer may send
or deliver the notice—

a) to any address of the person on record with the consumer; or

b) to an address of the person known by the consumer.

If a consumer has delivered notice and has not received a satisfactory response within the
prescribed period, the consumer may commence an action.

In the trial of an issue under this section, oral evidence respecting an 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.

A court may award exemplary or punitive damages in addition to any other remedy in an action
commenced under this section. An example is the case of Gladys Karimi Musyimi vs Fahari Cars
Ltd & Another37 where the Plaintiff filed a suit seeking exemplary and punitive under Section 84
of the Consumer Protection Act as a result of breach by the Defendant in their agreement. The
Court found in favour of the Plaintiff stating that exemplary and punitive damages are normally
awarded to deter a Defendant from committing a future breach of the same kind that would make
him or her a profit exceeding compensation of the Plaintiff.38

37
Gladys Karimi Musyimi vs Fahari Cars Ltd & Another
38
Maurice Nzuki Munywoki, Consumer Protection regimes in Kenya with specific interest on the role of Competition
Law and Intellectual Property Law
<http://erepository.uonbi.ac.ke/bitstream/handle/11295/160475/Maurice%20Nzuki%20Munywoki%20-
%20Project.pdf?sequence=1&isAllowed=y>accessed 27 November 2023
Each person who engaged in an unfair practice is liable jointly and severally with the person who
entered into the agreement with the consumer for any amount to which the consumer is entitled
under this section.

If an agreement to which subsection (1) or (2) applies has been assigned or if any right to payment
under such an agreement has been assigned, the liability of the person to whom it has been assigned
is limited to the amount paid to that person by the consumer.

When a consumer rescinds an agreement under subsection (1), such rescission operates to cancel,
as if they never existed--

a) the agreement;
b) all related agreements;
c) all guarantees given in respect of money payable under the agreement;
d) all security given by the consumer or a guarantor in respect of money payable under the
agreement; and
e) all credit agreements, as defined in Part VII, and other payment instruments, including
promissory notes—

i) extended, arranged or facilitated by the person with whom the consumer reached the
agreement;
ii) otherwise related to the agreement.

REMEDIES UNDER PART IX, SECTION 76 – 80, OF THE CONSUMER PROTECTION

ACT.

As provided in Section 76(1), a consumer is required to give notice to a supplier to request a

remedy, the consumer may do so by giving notice in accordance with this section.
If a consumer is required to give notice under this Part in order to obtain a remedy, a court may
disregard the requirement to give the notice or any requirement relating to the notice if it is in the
interest of justice to do so. Unless the regulations require otherwise, the notice may be oral or in
writing and may be given by any means.

A consumer agreement is not binding on the consumer unless the agreement is made in accordance
with this Act and the Regulations.

Despite subsection (1), a court may order that a consumer is bound by all or a portion or portions
of a consumer agreement, even if the agreement has not been made in accordance with this Act or
the Regulations, if the court determines that it would be inequitable in the circumstances for the
consumer not to be bound.

If a consumer has a right to cancel a consumer agreement under this Act, the consumer may cancel
the agreement by giving notice in accordance with section 76. The cancellation takes effect when
the consumer gives notice.

The cancellation of a consumer agreement in accordance with this Act operates to cancel, as if
they never existed—

a) the consumer agreement;

b) all related agreements;
c) all guarantees given in respect of money payable under the consumer agreement;
d) all security given by the consumer or a guarantor in respect of money payable under the
consumer agreement; and
e) all credit agreements, as defined in Part VII, and other payment instruments, including
promissory notes—

i) extended arranged or facilitated by the person with whom the consumer reached the
consumer agreement; or
ii) otherwise related to the consumer agreement.

If a consumer cancels a consumer agreement, the supplier shall, unless the contrary is provided for
in the agreement, in accordance with the prescribed requirements: refund to the consumer any
payment made under the agreement or any related agreement; and return to the consumer in a
condition substantially similar to when they were delivered all goods delivered under a trade-in
arrangement or refund to the consumer an amount equal to the trade- in allowance.

Upon canceling a consumer agreement, the consumer, in accordance with the prescribed
requirements and in the prescribed manner, shall permit the goods that came into the consumer’s
possession under the agreement or a related agreement to be repossessed, shall return the goods or
shall deal with them in such manner as may be prescribed.

If a consumer cancels a consumer agreement, the consumer shall take reasonable care of the goods
that came into the possession of the consumer under the agreement or a related agreement for the
prescribed period.

Compliance with section 80 discharges the consumer from all obligations relating to the goods and
the consumer is under no other obligation, whether arising by contract or otherwise, to take care
of the goods.

If a consumer has cancelled a consumer agreement and the supplier has not met the supplier’s
obligations under section 80 (1), the consumer may commence an action.

If a consumer has cancelled a consumer agreement and has not met the consumer’s obligations
under this section, the supplier or the person to whom the obligation is owed may commence an
action.

REMEDIES AVAILABLE TO CONSUMERS UNDER SECTION 82-88 OF THE

CONSUMER PROTECTION ACT.

REFUND

Section 82 of the consumer protection Act states that If a supplier charges a fee or an amount in
violation of this Act, or receives a payment in violation of this Act, the consumer who paid the
charge or made the payment may demand a refund by giving notice in accordance with section 76
within one year of paying the charge or making the payment.
This particular section provides for a demand of a refund paid by the consumer as a remedy for
when he or she has been over or under charged.

A case example is that of Volkswagen of America, Inc. v. Young (1974): This case involved a
defective car, and it reinforced the idea that a consumer can seek remedies for breach of
warranty, including a refund or replacement of the product.

REVERSAL OR CANCELLATION

Section 83 covers the remedy available to a consumer who procures a service and pays using a
credit card. The said act specifies that consumer who has charged to a credit card account all or
any part of a payment described in subsection (2) may request the credit card issuer to cancel or
reverse the credit card charge and any associated interest or other charges.

This part however applies only in the following instances

1. in the event that a consumer agreement has been cancelled

2. where a supplier received payment contrary to the act
3. payment in respect of a fee or amount charged in violation of this Act;
4. where good or services where unsolicited and payment had already occurred

in order for the consumer to be refunded, he or she must loge a formal request as per section 1 of
the consumer act and the said request should be in written form and shall be subject to the rules of
section 76(2)

ACTION IN COURT

Section 84 gives room for a consumer to initiate an action before court. Such action may include
a full payment to which he or she is entitled to

The court may order for the consumer to recover all the goods purchased in the agreement or an
amount equal to the trade in allowance.

The court is also at liberty to exercise its discretion by allowing for punitive damages or offer other
reliefs as the court may see fit.

A case example is that of Henningsen v. Bloomfield Motors, Inc. (1960): where Henningsen
purchased a Plymouth automobile, manufactured by defendant Chrysler Corporation, from
defendant Bloomfield Motors, Inc. His wife, plaintiff Helen Henningsen, was injured while
driving it and instituted suit against both defendants to recover damages on account of her
injuries.

Another case example is that of

BMW of North America, Inc. v. Gore (1996): The trial court found in favor of Dr. Gore and
awarded him compensatory damages of $4,000 and punitive damages of $4 million. The jury
determined that BMW's nondisclosure policy was deceptive and fraudulent.

Each person who engaged in an unfair practice is jointly and severally accountable for any amount
to which the consumer is entitled under this section with the person who entered into the agreement
with the consumer.

However, section 85 states that the court while exercising its discretion may disregard the
requirement by the consumer to give notice as prescribed in the act or any requirements relating
to the notice all in the Interest of justice.

In spite of section 88 (1), following a disagreement over which a customer may file a complaint in
the high court is convened, the client, the vendor, and any other parties to the dispute may agree
to use whatever legal means at their disposal to settle the disagreement.

A settlement or judgement reached as a consequence of the process outlined in section 88(1) is as

binding on the parties, just as a settlement or decision of such nature made in connection with a
disagreement pertaining to a contract that is exempt from the Consumer Protection Act.

In as much as the Consumer Protection Act is a progressive statute, there is need for clarification
on some of the clauses regarding consumer dispute resolution in the act. For instance section 88
of the Consumer Protection Act requires that every acknowledgement in a consumer agreement
that requires that disputes arising out of the consumer agreement be submitted for arbitration is
invalid insofar as it prevents a consumer from exercising their right to commence an action in the
High Court given under the Act.39 There is need for a review of this section to allow parties to

39
Section 88 of the Consumer Protection Act
consumer disputes to choose their most favoured forums of resolving disputes and also provide
comprehensive alternatives to litigation and arbitration as it is the case in other jurisdictions such
as the UK.

THE PROHIBITION OF UNFAIR PRACTICES

This has been dealt with in part three of the consumer protection Act, 2012 from section 12-16.
The bearing of our discussion has been anchored in section 3 subsection 4 which in part (a)
speaks of establishing a legal framework for achievement of consumer markets that is fair,
accessible, responsible for the benefit of the consumer, in part (c), it also speaks of promoting
fair and ethical business practices and in part (d), emphasis on protecting consumers from all
forms of unfair, unreasonable, unjust or improper trade practices including deceptive,
misleading, unfair or fraudulent conduct has been put.40
In light of unfair practices, we need to understand what actions are deemed to be unfair
practices.
1. There is false representation.
This has been discussed in depth in section 12 and subsection one says, it is an unfair practice
for a person to make a false, misleading or deceptive representation and subsection 2 talks of
what constitutes a false or misleading representations. Just to mention a few, they include: a
representation that the goods and services have sponsorship, approval, performance
characteristics, accessories, uses, ingredients, benefits or qualities they do not have,41 a
representation that the goods or services are of a particular standard, quality, grade, or model,
if they are not42 also a representation that the goods or services are available for a reason that
do not exist.43
In the case of James Kuria v AG & 3 others, where the petitioner filed a petition that the 4th
respondent violated his constitutionally and statutory protected consumer rights, it was
concluded that the petitioner failed to prove that the respondents acted illegally or on breach
of the petitioner’s consumer rights also no evidence was presented to show that the
respondents failed to exercise their statutory mandate.44
In the case of David Taylor v Lawrence Fraser, the defendant supplied toys painted with
excessive lead and their defence was that the manufacturers had given them a written

40
The consumer protection act No. 46 of 2012
41
The consumer protection act No. 46 0f 2012, section 12(2)
42
ibid
43
ibid
44
James Kuria v Attorney General & 3 others [2018] eKLR
undertaking that the goods complied with the regulations but it failed as the court decided that
they should have had the paint analysed but failed also they could not delegate responsibility to
a trading standards department.45 The above case shows that the consumer interests and
protection comes first at any given circumstance.

2. Unconscionable representation
Section 13(1), it is an unfair practice to make an unconscionable representation. Section 13(2)
Without limiting the generality of what may be taken into account in determining whether a
representation is unconscionable, there may be taken into account that the person making the
representation or the person’s employer or principal knows or ought to know—
(a) that the consumer is not reasonably able to protect his or her interests
because of disability, ignorance, illiteracy, inability to understand the
language of an agreement or similar factors;
(b) that the price grossly exceeds the price at which similar goods or
services are readily available to like consumers;
(c) that the consumer is unable to receive a substantial benefit from the
subject-matter of the representation;
(d) that there is no reasonable probability of payment of the obligation in
full by the consumer;
(e) that the consumer transaction is excessively one-sided in favor of
someone other than the consumer;
(f) that the terms of the consumer transaction are so adverse to the
consumer as to be inequitable;
(g) that a statement of opinion is misleading and the consumer is likely
to rely on it to his or her detriment; or
(h) that the consumer is being subjected to undue pressure to enter into
a consumer transaction.46
In the case of CIS v Directors, Crawford international school and 3 others where the parents
sued the school for offering the online classes at a rate similar to when it was physical and they
termed that to be unfair, unconscionable and unlawful as it contravenes with their consumer
rights protected under article 46 of the constitution of Kenya. They further contested that they
were misled as they were not given information that they needed to make decision and they
termed that as unlawful contrary to section 13 of the CPA 2012. The court held that there was

45
David Taylor v Lawrence Fraser (Bristol) Ltd (1977)
46
The Consumer protection Act No. 46 of 2012, section 13(2).
adequate consultation before and during the implementation of the virtual learning program
hence the claims of the parents does not amount to unfair practices47
3. Renegotiation of price
This has been set out clearly in section 14 of the act as it 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.48
In section 15 of the Act, it emphasizes that no person shall engage in the unfair practices that
are mentioned in the above sections (12,13,14). In subsection (3) it separates on what should
not be deemed to be an unfair practice as it says, it is not an 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.49

On our second limb we look at what are the sanctions that are available for unfair practices as
we have discussed what constitute unfair practices.

In any agreement whether written, oral or implied, entered into by a consumer after or while a
person has engaged in an unfair practice may be rescinded by the consumer and the consumer
is entitled to any remedy that is available in law, including damages. Where rescission is not
possible, a consumer is entitled to recover the amount by which the consumer’s payment
under the agreement exceeds the value that the goods or services have to the consumer or to
recover damages, or both.
Each person who engaged in an unfair practice will be liable jointly and severally with the
person who entered into the agreement with the consumer for any amount to which the
consumer is entitled under section 16 of the consumer protection Act of 2012.

Commencing an agreement on an unfair practice.

The consumer may express notice in any way as long as it indicates intention of the consumer
to rescind the agreement or to seek recovery. The notice may be delivered in a manner used to
enter the contract. If the consumer has delivered notice and has not received a satisfactory
response within the prescribed period, the consumer may commence an action.
The Act also stipulates that a court may award exemplary or punitive damages in addition to
any other remedy in an action commenced under this section.50

47
CIS v Crawford International School & 3 others [2020] eKLR
48
The consumer protection Act No. 46 of 2012, section 14.
49
The consumer protection Act No.46 of 2012 section 15(3).
50
The consumer protection Act No. 46 of 2012, section 16(9).
Duty bearers

Duty bearers refer to individuals, entities or organizations that have a responsibility or duty to

ensure the protection of consumer rights and interests and to abstain from human violations.

Functions of duty bearers

1.Government agencies

The government has several duties to ensure that consumer’s rights and interests are protected.

They include: The government is responsible for creating and enforcing laws and regulations

related to consumer protection. According to article 46 of the 2010 constitution of Kenya, the

parliament shall enact legislation to provide for consumer protection and for fair, honest

and decent advertising. Government agencies also oversee market prices. Government agencies

may control prices to manage the affordability of certain goods and services .The government

agencies also have an obligation to ensure that products and services meet specified safety and

quality standards and taking action against businesses that violate these standards. It also

monitors the market to identify and address unfair trade practices and any violations of consumer

protection laws. The government can recall defective products from the market if they have

reason to believe they will cause harm to consumers.

2.Businesses and corporations

Companies that produce goods and provide services to consumers are duty bearers by ensuring

their products meet safety standards, provide accurate information and adhere to fair businesses

practices. They have a duty to implement quality control measures to maintain high product and

service standards .Businesses should also provide warranty terms and reliable after-sales services

to ensure the satisfaction of the consumer is met. This is provided in section 5 (2)of the

Consumer Protection Act which states that implied conditions and warranties applying to

the sale of goods under the Sale of goods Act shall apply with necessary modifications to

goods that are leased, traded or otherwise supplied under a consumer agreement.

Businesses and corporations should also educate the consumers on proper product use and

potential risks to ensure that the consumer is well informed and that there is transparency 1 . They
1 di Castri, S., Flaming, M., Owino, A., McKee, K., Jentzsch, N., Maina, B., Ochieng, M., Collins, D., &amp;
Ahern, B.

(2011). Consumer Protection Diagnostic Study: Financial Consumer Protection in Kenya. SSRN Electronic

Journal. https://doi.org/10.2139/ssrn.1843279

should also provide fair prices to the consumers and avoid deceptive pricing strategies. This is

provided in section 55 of the Consumer protection Act that makes it unlawful to make false

or misleading representation about products when supplying, offering to supply or

promoting these products or services.

3. Legal and Regulatory Bodies

Legal professionals, including lawyers and judges, play a role in upholding consumer rights by

interpreting laws, settling disputes, and ensuring justice in cases of consumer rights violations.

One of the regulatory bodies is the Consumer Protection Department which enforces section 55

to 70 of the Consumer Protection Act; its core function is to investigate complaints relating to

false or misleading representations, unconsiable conduct as well as supply of unsafe defective

and unsuitable goods. The department also promotes creation of consumer bodies and the

standards they should adhere to. The body sensitizes consumers about their rights and obligations

under the act. Courts also have a duty to solve disputes where dispute mechanisms have not

being provided and where they exists they should exercise restraint in entertaining the dispute as

stated in the case of speaker of the National Assembly vs. Njenga Karume.

4.Consumer Protection Agencies and organizations.

Organizations specifically dedicated to safeguarding consumer interests, providing guidance, and

addressing complaints or grievances. In section 94 of the Consumer Protection Act of 2012, it

recognizes consumer organizations which should be regarded when considering consumer

representation on all regulatory bodies. Consumer organizations examine and compare

products and services for advising people and give support to people if they have any problem
with products and services 2 . These organizations create consumer awareness and file suits on

behalf of the consumers who are unable to raise their voice against loss or damage

5.Media and Education Institutions

Media outlets and educational institutions contribute to consumer protection by disseminating

information about consumer rights, raising awareness about fraudulent practices, and educating

2 ibid

consumers about their rights and responsibilities. The media should play its role of empowering

consumers through consumer education and highlighting various unfair trade practices resorted

to by the traders and service providers. The media inform the government and other departments

on traders who exploit consumers.

In conclusion duty bearers help in educating the consumers about the safe and proper use of their

products and services as well as their rights. Article 46(1)(b) of the 2010 constitution of Kenya

states that consumers have the right to information necessary for them to gain full benefit

from the goods and services.

SIMILARITIES AND DIFFERENCES BETWEEN THE CONSUMER PROTECTION

ACT, 2012 AND OTHER STATUTES OF PUBLIC LAW MEASURES OF CONSUMER
PROTECTION
In collaboration with other statutes of Public Law Measures of consumer protection, the
Consumer Protection Act aims at providing protection for consumers to prevent unfair trade
practices in consumer transactions and to provide for matters connected with consumer activities.
Since they have a common objective, they have more convergences and divergences which are
discussed below.

Convergences

The overall objective between the Consumer Protection Act, 2012 and other statutes of public
law measures of consumer protection is to provide protection to consumers and prevent unfair
trade practices in consumer transactions.

They are enforced by government agencies which provide for mechanisms of enforcing
consumer protection laws such as investigations and remedies.

Divergences

1. Trade Description Act

a) Objectives: The Consumer Protection Act has a broader objective to protect consumers
from a wide range of harm while the Trade Description Act aims to protect consumers
from false or misleading trade descriptions, prices or services.

b) Scope: The Consumer Protection Act has a wide range of transactions such as consumer
contract, advertisement, marketing and sale of goods and services. On the other hand, the
Trade Description Act is limited to the sale of goods and services. It also abhors wrong
description of goods.

c) Enforcement: The Consumer Protection Act has a stronger enforcement mechanism. It

empowers the Competition Authority of Kenya to investigate consumers’ complaints.
The Trade Description Act is enforced by the Consumer Protection Committee which is
lesser than the Competition Authority of Kenya.

d) Remedies: The Consumer Protection Act has a wide range of remedies which include;
seeking compensation, refunds, replacement of products and an injunctive relief. Part IX of
 the Consumer Protection Act outlines the procedures for consumer remedies. Under the Trade
Description Act, the remedies available include compensation for damages. Moreover,

Section 15 of the act provides for penalties to those found guilty under the provisions of the act.

2. Standards Act

a) Focus and scope: The Consumer Protection Act generally focuses on three main areas:
protecting consumer rights, preventing unfair trade practices, and guaranteeing
transparency between consumers and businesses. By contrast, the Standards Act
emphasizes industry-wide adherence to established standards and sets and maintains
technical specifications and quality standards for goods and services.
b) Enforcement: The Competition Authority of Kenya enforces the Consumer Protection
Act, 2012. It promotes and protects effective competition in markets and prevents
misleading market conduct throughout Kenya. On the other hand, Kenya Bureau of
Standards (KEBS) enforces Standards Act by conducting inspections and issuing
certifications.

c) Rights and remedies: While the Consumer Protection Act frequently grants consumers
explicit rights, such as the right to information and redress, and provides remedies like
compensation or legal recourse. Part IX of the Consumer Protection Act outlines the
procedures for consumer remedies. The Standards Act may not always directly confer
rights on individual consumers, but it does focus on industry-wide compliance measures
and standards enforcement to ensure product quality and safety. It also ensures that
penalties as outlined in section 15 of the act are imposed for non-compliance.

3. Weights & Measures Act

a) Scope: The Consumer Protection Act has a broader scope covering a range of consumer
related activities such as consumer contract, advertisements, marketing and sale of goods
and services. It mainly focuses on consumer protection from unfair practices and
deceptive marketing. This is different from the Weight & Measures Act which focuses on
ensuring accuracy, safety and fairness of weights and measures used in trade. It
 specifically amends and consolidates the law relating to the use, manufacture and sale of
weights and measures as outlined in the case of R v Minister of Trade & 4 Others Ex
Parte Duran Sounds Investments Co. LTD & Another.51

b) Enforcement: The Consumer Protection Act is enforced by the Competition

Authority of Kenya by promoting and protecting effective competition in markets and
preventing misleading market conduct throughout Kenya. On the contrary, the
Weight & Measures Act is enforced by the Kenya Bureau of Standards by ensuring
that during sale of commodities, the quantity purchased is of the quantity and quality
required.

c) Remedies: The Consumer Protection Act seeks compensation, refunds, replacement

of products and injunctive relief. Part IX of the Consumer Protection Act outlines the
procedures for consumer remedies. The Weight & Measures Act primarily focuses on
ensuring product compliance and may result in penalties for non-compliance. For
instance, section 63 outlines the general penalties.

4. Public Health Act

a) Scope: The Consumer Protection Act has a broader scope covering a range of consumer
related activities such as consumer contract, advertisements, marketing and sale of goods
and services. The Public & Health Act, on the other hand focuses on public health and
safety with specific provisions for infectious diseases, food, drug safety and
environmental health through preventive measures, inspections and enforcement.

b) Enforcement: The Consumer Protection Act is enforced by the Competition Authority of

Kenya. It promotes and protects effective competition in markets and prevents misleading
market conduct throughout Kenya. The Public & Health Act is enforced by the Ministry
of Health of Kenya which plays a crucial role in shaping healthcare in our country.

51
R v Minister of Trade & 4 Others Exparte Durran Sounds Investments Co. LTD & Another [2011]eklr.
 c) Remedies: The Consumer Protection Act seeks compensation, refunds, replacement of
products and injunctive relief. Part IX of the Consumer Protection Act outlines the
procedures for consumer remedies. On the other hand, the Public & Health Act focuses
on preventive measures and enforcement actions to protect public health. Penalties are
given to those who do not adhere to the laws stipulated Penalties are given to those who
do not adhere to the laws stipulated in sections 28 (penalty for exposure of infected
persons and things), 29 (penalty for failing to provide for disinfection of public
conveyance), 30 (penalty for letting infected house), 121 (penalty for respecting
nuisance), 133 (penalty for respecting unwholesome food) and 164 (penalty where not
expressly provided) of the act.

5. Anti-Counterfeit Act

a) Scope: The Consumer Protection Act has a broader scope covering a range of consumer
related activities such as consumer contract, advertisements, marketing and sale of goods
and services. In contrast, the Anti-Counterfeit Act specifically prohibits trade in
counterfeit goods.52 It also focuses on combating counterfeiting on any item that bears
intellectual property rights.

b) Enforcement: The Consumer Protection Act is enforced by the Competition Authority of

Kenya while the Anti-Counterfeit Act is enforced by the Anti-Counterfeit Agency.

c) Remedies: The Consumer Protection Act seeks compensation, refunds, replacement of

products and injunctive relief and Part IX outlines the procedures for consumer remedies
whereas the Anti-Counterfeit Act focuses on seizure of counterfeit goods, fines and
imprisonment as stated in section 35 of the act.

6. Competition Act

a) Scope: The Consumer Protection Act has a broader scope covering a range of consumer
related activities such as consumer contract, advertisements, marketing and sale of goods
and services, with a focus on the relationship between service provider. On the other
hand, the Competition Act focuses on the service provider and makes the regulations to
ensure that the consumer as the final recipient of the services offered are protected and

52
Purity Nyakio Wachira v R [2020]eklr
 offered quality services. Moreover, it focuses on promoting competition in markets and
preventing anti-competitive practices that harm consumers.

b) Remedies: The Consumer Protection Act seeks compensation, refunds, replacement of

products and injunctive relief. The Competitive Act, on the other hand, focuses on
imposing fines, ordering businesses to take corrective action and breaking up
monopolies. Secondly, the Consumer Protection Act doesn’t make enough provisions or
provide necessary mechanisms to deal with anti-competitive behaviors in the market
which affect consumer rights. Part IX of the act outlines the procedures for consumer
remedies. The Competition Act on the other hand makes such provisions, maximizing
consumer social welfare by prohibiting abuse of dominance. It has inherent mechanisms
to curb anti-competitive behavior such as exclusion and compulsory licensing.

7. Fertilizers & Animal Foodstuffs Act

a) Focus and scope: The Consumer Protection Act is primarily focused on protecting the
rights of consumers, ensuring fair trade practices, and tackling problems such as unfair
competition and deceptive advertising. On the other hand, the Fertilizers & Animal
Foodstuffs Act primarily focuses on regulating the manufacture, marketing, and quality
standards of fertilizers and animal foodstuffs in order to guarantee the safety and
effectiveness of agricultural products.
b) Product standards: The Consumer Protection Act typically sets general product
standards, emphasizing safety and quality in various industries. In contrast, the Fertilizers
& Animal Foodstuffs Act specifically establishes standards for agricultural products,
focusing on composition, labeling, and safety to ensure the quality and efficacy of
fertilizers and animal foodstuffs in the agricultural sector.
c) Enforcement: The Consumer Protection Act is enforced by the Competition Authority of
Kenya while Fertilizers & Animal Foodstuffs Act is enforced by the Ministry of
Agriculture in Kenya.

8. Food, Drugs & Chemical Substances Act

a) Scope: The Consumer Protection Act has a broader scope covering a range of consumer
related activities such as consumer contract, advertisements, marketing and sale of goods
and services. Contrarily, the Food, Drugs & Chemical Substances Act focuses on safety
and quality of food, drugs and chemical substances.

b) Enforcement: The Consumer Protection Act is enforced by the Competition Authority of

Kenya while Food, Drugs & Chemical Substances Act is enforced by Pharmacy &
Poisons Board. The board ensures registration of medical products and health
technologies, inspections and enforcement of good practices for manufacturing and
distribution, post market surveillance, clinical trials, vigilance and appropriate use of
products to ensure their quality, safety, efficacy and economic value.

c) Remedies: The Consumer Protection Act seeks compensation, refunds, replacement of

products and injunctive relief. Part IX of the act outlines the procedures for consumer
remedies. On the other hand, the Food, Drugs & Chemical Substances Act covers a wider
range of remedies such as compensation, refunds, replacement products and injunctive
relief.