For every purchase of a product, a consumer presumes that such product meets the expected quality and safety standards. This presumption may be based on various factors ranging from the nature of advertisements on the products, the assurances and representations by the manufacturer or supplier or simply because the very essence of production is that the products will be consumed by the end user and must therefore be fit for such consumption.
Despite this reasonable expectation, consumers have often found themselves at the short end of the stick when the purchased goods prove faulty, damaged, defective or materially different from what was advertised or when they receive poor quality services that result in loss or harm.
Previously, while a manufacturer could be found liable for violating safety standards and regulations in relation to a defective product, the consumer who suffered loss or harm in most cases could not recover their losses in terms of compensation or damages for such harm. The position changed with the promulgation of the Constitution 2010 (the “Constitution”) and the enactment of the Consumer Protection Act No. 46 of 2012 (the “CPA”) and the Competition Act No. 12 of 2010 (the “Competition Act”) which enable a consumer to bring a claim or cause of action either as an individual or on behalf of a class of consumers for any loss or damage caused by defective products.
What is product liability?
Product liability refers to the legal liability or responsibility of any or all parties that take part in the chain of the manufacture and supply of a product for any loss, harm or injury to a consumer caused by such product. A designer, manufacturer, seller, distributor, lessee, or supplier of the product may be accountable to a consumer for any loss or harm incurred from the use of the product and may, as a result, be required to compensate the aggrieved consumer and pay for his damages.
Where a defective good causes loss or harm, the legal liability is strict, that is to say that a manufacturer or supplier is responsible for goods which cause damages regardless of any act of negligence, fault or breach on their part. However, if the loss or harm is caused from a service being provided to the consumer, then the legal liability is fault based, and the consumer has to prove negligence or breach of contract by the service provider.
While there is no unified law in Kenya on product liability, there are a number of general and sector specific legislations that govern the sale of goods and provision of services thus defining the scope of product liability. These legislations operate concurrently and, depending on the facts of the claim, may be relied upon by a claimant to recover compensation and damages for loss caused by the use of defective goods or services.
Who bears the liability?
The 1973 Convention on the law Applicable to Product Liability (the “Convention”) to which Kenya is a signatory provides that such liability applies to the manufacturers of finished products or of a component part, the producers of a natural product, the suppliers of a natural product, and other persons in the commercial chain of preparation or distribution of a product, with such liability extending to their agents or employees. The CPA, the Sale of Goods Act (the “SGA”) and the Competition Act reiterate this position by holding the manufacturing entity or supplier of products in a consumer agreement or a contract for the sale of goods liable for any loss or damage suffered by a consumer due to a defective product.
What amounts to product liability?
Some of the common areas or reasons that product liability claims arise are:
- Production or manufacturing – where a product is damaged or contaminated during the manufacturing process.
- Design – where the design of the product is faulty and causes injury as a result.
- Implied warranties and conditions under the SGA – where a supplier of goods or services under a consumer agreement is deemed to warrant that the products are of a reasonably merchantable quality or fit for the intended purpose. These implied conditions and warranties cannot be excluded and any clause in a contract purporting to exclude or render them inapplicable is void.
- Disclaimers and Warnings – where a manufacturer fails to ensure that sufficient warnings are exhibited on the product packaging.
- Failure to recall warnings – where a manufacturer fails to recall a defective product despite knowing about it. If the defect later on injures a third party, the manufacturer can be held accountable.
- False representation - a claim arises as a result of a false, misleading or deceptive representation that the goods or services are of a particular standard, quality, grade, style or model that they are not.
Are there any bodies that promote consumer rights in relation to product liability?
Currently, the Consumer Federation of Kenya (“COFEK”) is the most active non-governmental consumer body in Kenya. It was established with a mandate to develop, promote and pursue consumer rights while ensuring that the consumers get value for their money.
On the regulatory side, the CPA further establishes the Kenya Consumers Protection Advisory Committee which is mandated to advise and ensure proper actions on all aspects related to consumer protection, formulate of consumer protection policies, accredit consumer organisations, 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.
Additionally, 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.
Finally, the Competition Authority of Kenya has a mandate under the Competition Act to ensure that consumers do not suffer loss or damage from the supply of defective goods or services. It consults with KEBS regarding the specifications and quality of goods. It also receives and resolves complaints from consumers and notifications from consumer bodies regarding any infringement or any conduct giving rise to product liability under the Competition Act and strives to advise and educate consumers on their rights and responsibilities.
What are the available remedies to an aggrieved consumer?
An aggrieved consumer is entitled to rescind or cancel a consumer agreement or a contract for the sale of goods which has resulted in loss or damage. The consumer can further seek compensation and damages for such loss before a competent court of law. The court may give a compensatory award for the loss suffered, in addition to a punitive award which is punishment for the action or practice that gave rise to the defective product. A breach of any regulation made by the CPA carries a liability upon conviction either to a fine not exceeding Kenya Shillings five hundred thousand (KES. 500,000) or imprisonment for a term not exceeding two (2) years or to both such fine and imprisonment.
Despite the absence of a unified legislation on product liability, the legal framework ensures the promotion and protection of consumer rights by requiring that products meet the expected quality and safety standards. Manufacturers are held accountable under the law not only by the various regulatory authorities, but by the very consumers they sell their products to.
 Section 10A of the Act.
Should you have any enquiries regarding this article or any general queries on the subject matter, kindly contact Waringa Njonjo, Partner, Linda Ondimu, Associate and Joy Kamau, Junior Associate, MMAN Advocates.
Disclaimer: This article has been prepared for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Nothing on this article is intended to guaranty, warranty, or predict the outcome of a particular case and should not be construed as such a guaranty, warranty, or prediction. The authors are not responsible for any actions (or lack thereof) taken as a result of relying on or in any way using information contained in this article and in no event shall be liable for any damages resulting from reliance on or use of this information. Readers should take specific advice from a qualified professional when dealing with specific situations