Consumer Protection Act

The Act may be cited as the Consumer Protection Act.

Section 2 sets out interpretation clauses defining categories such as a person to whom goods or services are marketed, a person who has entered into a transaction with a supplier, users or recipients of goods or services, and a franchisee.

Section 3 sets interpretive guidance and purposes: the Act must be interpreted to give effect to its stated purposes; it recognizes appropriate foreign/international law and consumer-related international instruments; it permits signing or initialing documents by any manner recognized by law (including electronic signatures); and it lists multiple consumer-protection purposes such as promoting fair markets, reducing access disadvantages, promoting ethical business practices, protecting consumers from unfair practices, improving awareness, promoting confidence and empowerment, and providing dispute resolution and redress systems.

A consumer who made payment under section 9(6) may commence an action to recover that payment.

Advertising internet gaming sites that operate contrary to written law is prohibited; arranging or facilitating such advertising (except by internet service providers) is also prohibited; advertising is treated as such when originating in Kenya or aimed primarily at Kenya residents; examples of advertising are listed.

Consumers may start or join class proceedings about disputes from consumer agreements even if a contract term tries to stop class proceedings; consumers, suppliers and others involved may agree to resolve such disputes by any lawful procedure; resulting settlements or decisions are binding on the parties.

Suppliers must warrant that goods or services supplied under a consumer agreement are of reasonably merchantable quality; implied Sale of Goods Act conditions apply with modifications; contract terms attempting to negate these warranties are void; certain terms are severable and not evidence that warranties do not apply.

If a consumer agreement includes an estimate, a supplier must not charge more than ten per cent above that estimate; if the supplier does, the consumer may require performance at the estimated price. The consumer and supplier may agree to amend the estimate or price if the consumer requires additional or different goods or services.

If a consumer agreement or required disclosure is ambiguous, interpret it in the consumer's favor.

Persons must not charge consumers for helping them obtain benefits, rights or protections available under the Act unless they first disclose that the entitlement exists, is directly available, and any cost the consumer would incur if they obtained it themselves.

Recipients of unsolicited goods or services have no legal obligation to use or dispose of them; suppliers must not demand payment or imply payment is required, and consumers who paid for unsolicited goods or services may demand a refund within one year.

It is an unfair practice for a person to make a false, misleading or deceptive representation.

Making an unconscionable representation is an unfair practice.

A person must not use custody or control of a consumer’s goods to pressure the consumer into renegotiating the terms of a consumer transaction.

No person shall engage in an unfair practice; specific acts in sections 12, 13 and 14 are deemed unfair practices; an exception allows certain good-faith publications on behalf of others.

A consumer may rescind an agreement entered into after or while an unfair practice occurred and is entitled to legal remedies, including damages; courts may award exemplary damages; those who engaged in the unfair practice are jointly and severally liable.

In prescribed circumstances, when a consumer cancels a consumer agreement, the effects of cancellation and the obligations that arise may be subject to limitations that are prescribed.

Future performance agreements must be in writing, delivered to the consumer, and made in accordance with the prescribed requirements.

A consumer may cancel a future performance agreement within one year if they do not receive a compliant copy of the agreement.

If a consumer has paid two-thirds or more under a future performance agreement, the supplier cannot retake possession or resell the goods for default without leave from the High Court; the court may grant or refuse leave and may impose terms.

Consumers may cancel certain future-performance agreements if the supplier does not deliver or commence within thirty days when no date is specified; if the consumer later agrees to accept delivery or authorize commencement after that period, the consumer may not cancel; attempted or refused deliveries/commencements or lack of available recipients are treated as exceptions.

Every time share agreement must be in writing, delivered to the consumer, and made in accordance with the prescribed requirements.

A consumer may cancel a time share agreement without reason during specified post-contract periods.

Agreements for personal development services must meet the subsection (1) requirements; suppliers may not take payment from a consumer unless they have such an agreement.

Section 25. An agreement is for one year Section 25(1) No personal development services agreement may be made for a term longer than one year after the day that all the services are made available to the consumer. Section 25(2) Any

A supplier must not enter into a new personal development services agreement with a consumer who already has one unless the new services are distinctly different; any new agreement that breaches this rule is void.

Prohibits charging a consumer more than one initiation fee.

Suppliers of personal development services must offer at least one installment payment plan for membership and initiation fees that lets consumers pay equal monthly amounts; suppliers must not offer plans that cause total installments to exceed the fee by more than twenty-five per cent.

A consumer may cancel a personal development services agreement within ten days after receiving the written copy or when services become available, and may also cancel within one year if they did not receive a compliant copy.

Trustees holding consumer payments must provide written confirmation on receipt, must refund or release funds in specified cases, and must not release funds to suppliers until services are available; suppliers must not take payment for unavailable services except where a consumer has agreed in writing to use an alternative facility.

Suppliers must disclose prescribed information before a consumer enters into an internet agreement, give an express opportunity to accept or decline and to correct errors immediately before entry, and consumers can retain and print the information.

A supplier must give a consumer who enters into an internet agreement a written copy of the agreement within the prescribed period.

A consumer may cancel an internet agreement within thirty days after it is entered into if the supplier fails to comply with a requirement under section 43.

Every direct agreement must be in writing, delivered to the consumer, and made in accordance with the prescribed requirements.

A consumer may cancel a direct agreement at any time without reason, and may also cancel within one year if they did not receive a compliant copy under section 34.

Before a consumer enters into a remote agreement, the supplier must disclose the prescribed information to the consumer and must satisfy the prescribed requirements.

Suppliers must give consumers who enter into remote agreements a written copy of the agreement within the prescribed period and that copy must include information that is prescribed.

A consumer may cancel a remote agreement within specified timeframes if the supplier fails to comply with certain supplier obligations.

This Part does not apply to remedies claimed for unfair practices under Part III.

A consumer may give notice to a supplier requesting a remedy in accordance with this section; the notice may be oral or written and may be given by any means unless regulations say otherwise.

A consumer is not bound by a consumer agreement unless the agreement is made in accordance with this Act and the Regulations.

A consumer who has a right to cancel may cancel a consumer agreement by giving notice following section 76; the cancellation takes effect when the consumer gives notice.

Cancellation affects: the consumer agreement; all related agreements; all guarantees given in respect of money payable under the consumer agreement; all security given by the consumer or a guarantor in respect of money payable under the consumer agreement; and extensions arranged or facilitated by the person with whom the consumer reached the consumer agreement or otherwise related to the consumer agreement.

When a consumer cancels a consumer agreement the consumer must allow repossession, return or otherwise deal with goods as prescribed and take reasonable care for the prescribed period; compliance discharges the consumer from further obligations, and either party may commence actions in stated circumstances.

If the consumer recovers an amount equal to the trade-in allowance under section 71(1) and the consumer still holds title, the title to the goods vests in the person entitled under the trade-in arrangement.

Consumers who paid a charge or made a payment in contravention of the Act may demand a refund within one year by giving notice under section 76; suppliers who receive such a notice must provide the refund within the prescribed period.

Consumers may request their credit card issuer to cancel or reverse charges (including interest) for certain payments; requests must be written and in prescribed form and period; issuers must acknowledge and either cancel/reverse or, after investigation, explain in writing; consumers may sue to recover amounts.

Consumers who have a right under this Act may start a court action in the appropriate Court; the court may order full payment, goods or trade-in allowance, and may also award exemplary or punitive damages or other relief.

A court may disregard a consumer's notice requirement if it is in the interest of justice.

Except in a proceeding under this Act, no person is exempt from being required to give testimony in a civil proceeding regarding information obtained while exercising a power or duty related to administering this Act or the Regulations.

Suppliers must ensure required disclosures are clear and comprehensible and must deliver consumer information in a form the consumer can understand.

Arbitration terms that prevent a consumer from suing in the High Court are invalid; after such a dispute arises the consumer, supplier and others may agree to resolve it by any lawful procedure, and any settlement from that agreed procedure is binding on the parties.

Every consumer agreement for loan brokering, credit repair or for the supply of prescribed goods or services must be in writing, delivered to the consumer, and made in accordance with the prescribed requirements.

Operators must not take security in contravention of subsection (1); any arrangement where an operator takes such security is void.

A consumer party to an agreement for loan brokering, credit repair or prescribed related goods and services may cancel the agreement without reason from the date of entering into it until ten days after receiving the written copy; additionally the consumer may cancel within one year if they do not receive a copy meeting section 65 requirements.

The officers and directors of an operator are jointly and severally liable for any remedy where a person may commence proceedings against the operator.

An operator must not communicate or cause to be communicated any representation that is prescribed as a prohibited representation.

A repairer must give a consumer an estimate that meets the prescribed requirements before charging for work or repairs, except in specified situations.

Repairers must tell a consumer in advance if an estimate fee will be charged and how much; they must not charge if the repairs are authorized and carried out, but may charge in specified reassembly/authorization-delay situations.

Repairers must not charge for repairs unless the consumer authorizes them; and if an estimate was given, a repairer must not charge more than ten per cent above that estimate.

If an authorization required by sections 44, 45 or 46 is not given in writing, it is not effective unless it is recorded in a manner that meets the prescribed requirements.

A repairer must post the prescribed signs in accordance with the prescribed requirements.

Repairers must offer to return parts removed during repairs and return them unless the consumer said they do not want them; they must keep removed parts separate and, if requested, return them in a clean container.

The repairer must deliver to the consumer an invoice, on completion of work or repairs, containing the prescribed information in the prescribed manner.

Repairers must warrant new or reconditioned parts and related labour for at least ninety days or five thousand kilometres (whichever comes first); consumers may recover repair costs and towing from the original repairer and must return defective parts on request; misuse voids warranty on that part; repairers may refuse reimbursement only with reasonable grounds.

Repairers must not give an estimate or charge more for a repair simply because the cost will (directly or indirectly) be paid by an insurance company.

Requires the borrower to pay in a single full payment within a set period after receiving a written invoice; prevents suppliers from assigning in the ordinary course except as security; and makes loan brokers (in specified circumstances) bear lender obligations instead of a non-lending creditor.

If a consumer applies for a credit card without signing the application form or receives a card without applying, the consumer is treated as having entered a credit agreement when they first use the card; until they use it they are not liable to pay the lender any amount for that card.

A borrower is not liable for any amount exceeding the prescribed maximum for unauthorized charges under an open-credit agreement.

Consequences concern the cost of borrowing under a credit agreement when the borrower receives no statements required by this Part.

If there is an error in a statement of account under an open credit agreement, the lender must correct the error in accordance with the prescribed requirements.

Borrowers required to buy insurance under a credit agreement may buy it from any lawful insurer, but lenders may disapprove an insurer on reasonable grounds; lenders who offer or arrange such insurance must disclose in writing that borrowers may purchase through their own agent or insurer.

A borrower may terminate an optional continuing service by giving thirty days' notice (or a shorter period if the agreement specifies) and, when terminating in this way, is not liable for charges for service not provided and is entitled to a refund of amounts already paid.

A lender who invites a borrower to defer a payment must disclose whether interest will accrue during the deferral and, if it will, must disclose the interest rate; if the lender fails to comply, the lender is deemed to have waived the interest that would have accrued.

Allows reasonable charges for legal costs that the lender incurs in collecting or attempting to collect a required payment by the borrower under the agreement.

Borrowers may pay off the full outstanding balance at any time without prepayment charges; lenders must refund a prescribed portion for full prepayment on fixed credit; borrowers may make limited partial prepayments without charge but such payments do not entitle them to the full-prepayment refund; the section excludes certain public borrowers and specified foreign lenders.

No lender may make representations about a credit agreement unless those representations comply with the prescribed requirements.

Where a loan broker delivers an initial disclosure statement to a borrower, the lender may either adopt that statement as its own or deliver a separate initial disclosure statement.

Every lender must give the borrower an initial disclosure statement for a credit agreement at or before the time the borrower enters into the agreement, unless the lender adopts the loan broker’s statement as their own.

Lenders must provide borrowers periodic and event-driven disclosure statements and notices relating to fixed-credit agreements, including annual disclosures for floating rates, thirty-day disclosures after certain rate increases or amendments, and written notice when scheduled payments no longer cover accrued interest.

For open credit, the lender must deliver monthly statements of account to the borrower; the lender must provide a free telephone inquiry number during ordinary business hours; if an amendment changes prescribed information the lender must provide a supplementary disclosure within thirty days (subject to subsection (7)).

Persons who assign negotiable instruments given to secure credit must give the assignee a copy of the section 65 statement and, if a supplier creditor, the consumer agreement; assignees who reassign must pass those documents on; the maker may be indemnified by assignors who did not comply.

When a lender assigns its rights under a consumer credit agreement, the assignee has no greater rights than the assignor and is subject to the same obligations and duties; the Act applies equally to the assignee. A borrower may not recover from an assignee more than the balance owing at the time of assignment, and if there have been multiple assignments may not recover from an assignee who no longer holds the agreement more than payments the borrower made to that assignee.

Section 70 allows the High Court (on convicting an assignor under section 65) to order that the convicted person must indemnify the maker; it permits filing of such an indemnity order to obtain a default judgment, requires the registrar or clerk to issue that default judgment on filing, and allows the court to set aside or vary the default judgment on application.

Statements of the terms of payment and the cost of borrowing must be based on the amount determined from the information provided by the consumer when a trade-in allowance is subject to adjustment.

Applies to leases for a fixed term of four months or more.

Any person who makes representations about the cost of a lease must do so in accordance with the prescribed requirements.

A lessor may charge a lessee compensation for early termination of a lease but the maximum amount may be limited as prescribed; the lessee's maximum liability at the end of a residual obligation lease is the amount calculated in the prescribed manner.

Establishes the Kenya Consumers Protection Advisory Committee, lists its membership categories, gives the Cabinet Secretary authority to prescribe its conduct in consultation with the Committee, and requires the Ministry to provide its secretariat.

The Committee must advise the Cabinet Secretary and must ensure relevant action on all aspects relating to consumer protection.

Aircraft are prohibited from flying within Kenyan airspace unless they meet the safety requirements under the Civil Aviation Act (Cap. 394); passenger air carriers must provide services such as overnight accommodation or meals to passengers whose flights are cancelled or subject to long delays.

If a person is convicted of an offence under this Act for which no penalty is provided, they are liable to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding three years, or to both.

The Cabinet Secretary must make regulations to better carry out the purposes of the Act.

Appointing authorities must have due regard to accredited consumer organizations and the Advisory Committee when making appointments to regulatory bodies.