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GPR 415


18TH MAY, 2016

The primary aim of this contribution is to provide the reader with an overview of the current state
of the law in Kenya with regard to products liability.While doing so, this part of liability law is, at
least to a certain extent, contrasted with the rules governing the liability of service providers. The
main reason for this approach is that there appears to be a growing tendency to cross the border
between these two areas within liability law, in order to learn about possible solutions for common
problems. Whether or not this tendency is indeed present in Kenya, and whether or not there is
something to be learned from developments in services liability, are questions that need to be

Product Liability

Product liability is the area of law in which manufacturers, distributors, suppliers and retailers
are held responsible for any injuries products cause. Regardless of any contractual limitations of
liability, if a product or any of its component parts are defective its manufacturer may be liable
for damage under the Consumer Protection Act (CPA) or the common law of negligence.
An action under the CPA or for negligence can be brought for death, personal injury and damage
caused to private property as the result of a product defect. Neither type of action can be used to
compensate for pure economic or consequential loss.When a product has an unexpected defect or
danger, the product cannot be said to meet the ordinary expectations of the consumer.


A 'product' can include goods, electricity and the component parts of any product. Where a
component of or raw material incorporated into a finished product is defective both the
manufacturer of the component and the manufacturer of the finished product are potentially


Defective Product

A product is defective for the purposes of the CPA if its safety, including not only the risk of
personal injury but also the risk of damage to property, is "not such as persons generally are
entitled to expect". A product will not generally be considered defective just because a safer
version is later put on the market.
1.3 Types of Product Defects
Under any theory of liability, a plaintiff in a product liability case must prove that the product
that caused injury was defective, and that the defect made the product unreasonably dangerous.
There are three types of defects that might cause injury and give rise to manufacturer or supplier
1. Design Defects - Present in a product from the beginning, even before it is manufactured,
in that something in the design of the product is inherently unsafe.
2. Manufacturing Defects - Those that occur in the course of a product's manufacture or
3. Marketing Defects - Flaws in the way a product is marketed, such as improper labeling,
insufficient instructions, or inadequate safety warnings.
The doctrine known as "res ipsa loquitur" shifts the burden of proof in some product liability
cases to the defendant(s). Translated, this Latin term means "the thing speaks for itself," and
indicates that the defect at issue would not exist unless someone was negligent. If the doctrine is
successfully invoked, the plaintiff is no longer required to prove how the defendant was
negligent; rather, the defendant is required to prove that it was not negligent.
The second rule that helps plaintiffs in product liability cases is that of strict liability. If strict
liability applies, the plaintiff does not need to prove that a manufacturer was negligent, but only
that the product was defective. By eliminating the issue of manufacturer fault, the concept of nofault, or "strict" liability allows plaintiffs to recover where they otherwise might not.

1.4 Unavoidably Unsafe Products

By their nature, some products simply cannot be made safer without losing their usefulness. For
example, an electric knife that is too dull to injure anyone would also be useless for its intended
purpose. It is generally believed that, as to such products, users and consumers are the best
equipped to minimize risk. Thus, while a product might not be deemed unreasonably dangerous,
manufacturers and suppliers of unavoidably unsafe products must give proper warnings of the
dangers and risks of their products so that consumers can make informed decisions regarding
In assessing the safety of the product the court will take into account all of the circumstances,
specifically including:

all aspects of the marketing of the product;

the use of any mark in relation to the product;

instructions and warnings;

what might reasonably be expected to be done with the product at the time the product
was supplied.

This last factor allows the court to take account of the 'state of the art' at the time of supply.
1.5 Responsible Parties
For product liability to arise, at some point the product must have been sold in the marketplace.
Historically, a contractual relationship, known as "privity of contract," had to exist between the
person injured by a product and the supplier of the product in order for the injured person to
recover. In most states today, however, that requirement no longer exists, and the injured person
does not have to be the purchaser of the product in order to recover. Any person who foreseeably
could have been injured by a defective product can recover for his or her injuries, as long as the
product was sold to someone.

Liability for a product defect could rest with any party in the product's chain of distribution, such

The product manufacturer;

A manufacturer of component parts;

A party that assembles or installs the product;

The wholesaler; and

The retail store that sold the product to the consumer.

For strict liability to apply, the sale of a product must be made in the regular course of the
supplier's business. Thus, someone who sells a product at a garage sale would probably not be
liable in a product liability action.
When a defective product causes injury, the manufacturer of the product, the distributor, the
wholesaler and the retailer who sold the product may all be liable to the plaintiff. The difficulty
in analyzing products liability cases is that liability can arise from one of four legal theories,
Donogue v Stevenson
(1) intentional torts, in this case typically battery,
(2) ordinary negligence,
(3) strict liability negligence or,
(4) breach of warranty.
The consequences of suing under one legal theory over the other three will be felt in defenses
available and damages recoverable. Certain defenses will be available to the defendant under
certain legal theories while they will not be available under others. Further, certain damages
(punitive damages) will be recoverable under certain legal theories and will not be recoverable
under others.

The laws of products liability determine liability of manufacturers, distributors, wholesalers and
retailers for physical harm suffered by the plaintiff or his property that are caused by defects in
the product. As we will see later purely economic loss is not recoverable.
As with most areas of the law, products liability law has evolved. Originally a manufacturer or
supplier was only liable for injuries to plaintiffs with whom he was in privity of contract. If there
was no privity there was no liability. Thus, unless the plaintiff was the actual purchaser of the
product, he had no legal recourse against the manufacturer or supplier for the injuries he
suffered. Eventually the courts began to reject this privity requirement and started holding
manufacturers and suppliers liable for injuries suffered by plaintiffs with whom they were not in
privity of contract.
Intentional Tort
If a manufacturer or supplier sells a product that he knows is defective or dangerous or where he
believes that injuries are substantially certain to result from the using of the product, he may be
liable for battery to any plaintiff injured by the product. Huset v. J.I. Case, 120 F. 865 (8th Cir.
Cases involving manufacturers or suppliers intentionally placing dangerous products into the
stream of commerce are relatively rare. The more common scenario is where manufacturers and
suppliers are sued for unintentional injuries their products have caused.
The general rule regarding these negligence cases is that if it is reasonably foreseeable that a
product will create a risk of death or injury to a plaintiff if the product is not carefully made or
supplied, the manufacturer and supplier have a duty to carefully manufacture and supply the
product. Further, now that the concept of privity does not apply, this duty is owed to any
foreseeable user of the product. MacPherson v. Buick, 217 N .Y. 382 (1916).
Over the years the courts have extended this general rule. For example, while the general rule
creates a duty of care in manufacturing and supplying the product, the courts have extended this
to include a duty of care in designing the product as well. Boeing Airplane Co. v. Brown, 291
F.2d 310 (9th Cir. 1961). Also, while the general rule dictates that the duty of care is owed to all

foreseeable users of the product, the courts have extended this to include all plaintiffs foreseeably
within the scope of use of the product. Flies v. Fox Bros. Buick, 218 N.W. 855 (Wis. 1928). For
Bill purchases some fireworks from a local dealer. As Bill is walking home with his purchase, the
fireworks, which are defective, explode, injuring Bill and injuring Al, a pedestrian who is
walking on the other side of the street. Under the general rule, Al probably could not sue the
fireworks manufacturer because he was not a foreseeable user of the product. However, under the
case law establishing that the duty of care extends to all plaintiffs foreseeably within the scope of
use of the product, Al will be able to sue the fireworks manufacturer.
Further, while the general rule allows for recovery where the plaintiff has been injured
personally, case law has extended recovery to include property damage as well.
Finally, case law has extended the general rule to include assemblers of parts manufactured by
others. That is to say, where Company X takes different components from different
manufacturers and assembles those components into a final product, which it sells under its own
name, Company X may be liable if a plaintiff is harmed by a negligently manufactured
component. For example:
Cool Breeze Inc. sells refrigerators. However, it does not manufacture any of the refrigerator
parts. Rather Cool Breeze purchases the parts from other manufacturers and assembles their
refrigerators from these parts. Bill is injured when a negligently manufactured cooling unit
explodes in his refrigerator. Bill will be able to sue both the manufacturer of the cooling unit and
Cool Breeze itself even though Cool Breeze did not manufacturer the defective cooling unit.
Even though all Cool Breeze did was assemble the refrigerator from component parts and supply
the refrigerator to Bill, liability will attach because any assembler who takes another
manufacturer's product (in this case, the component parts) and markets it as its own, is subject to
liability as if he himself had manufactured the product.
Assemblers are liable even if they could not have detected the defects through a reasonable

Finally, case law has allowed plaintiffs to use res ipsa loquitor to bring their cases to the jury by
showing that the defect in the product that caused their injuries does not usually occur without
some negligence on the part of the manufacturer.
While most products liability cases determine the question of a manufacturers and suppliers
liability, there are situations in which middlemen may be liable to the plaintiff as well.
Typically, the duty owed by a middleman is the duty to inspect and test the products or, at the
very least, to warn the plaintiff as to the potential danger involved in using the product. However,
the middleman is only required to fulfill this duty when he has reason to know that the product
may be dangerous to a plaintiff in its normal use. Kirk v. Stineway, 187 N.E.2d 307 (Ill. 1963).
This duty will arise in instances where, for example, the middleman has purchased goods for
resale from an unreliable source, where the danger that the product poses is not labeled on the
packaging, where the middleman has received complaints about the product from other
customers, or where the product is the type of product the buyer normally relies on the
middleman to inspect before buying. The middleman however owes no duty to inspect, test or
warn if he has no reason to know that the product may be dangerous in its normal use. A
middlemans liability usually has no bearing on the manufacturers liability. Therefore, if a
middleman breaches his duty by failing to inspect, test or warn, his liability will not cancel out
the manufacturers liability. In fact, the plaintiff may be able to sue both the middleman and the
manufacturer. Ellis v. Lindmark, 225 N.W. 395 (Minn. 1929). However, where the manufacturer
unintentionally sold a defective product to the middleman and the middleman actually knows
that the product is defective, sells it to the plaintiff anyway and fails to warn the plaintiff about
the defect, the middlemans actions here will cut off the manufacturers liability. Stultz v.






As we mentioned before, in cases involving negligence, the plaintiff can recover for injuries he
suffered himself or for property damage caused by the product. However, purely economic loss
is not recoverable.

Finally, as in all other negligence cases, contributory negligence and assumption of risk can be
used as viable defenses. Therefore, if the plaintiff knowingly uses a defective product, he will be
barred from recovering for his injuries. Alternatively comparative negligence will reduce the
plaintiffs recovery as well.
Strict Liability
Today, most jurisdictions hold manufacturers and suppliers strictly liable for the injuries their
defective products cause. Strict liability in these cases was established as a matter of public
policy because of the danger involved in placing damaged or defective products into the stream
of commerce. Greenman v. Yuba Power Products, 59 Cal.2d 57 (1963).
There are several rationales for imposing strict liability. First, the manufacturer is in a much
better position to avoid a risk of loss than the consumer is. Second, more often than not,
negligence is too hard to prove in products liability cases and strict liability represents the only
way an injured plaintiff could recover for his injuries and, third, the threat of liability without
fault hopefully acts as an incentive for manufacturers to make sure that their products are safe.
In order for a manufacturer to be found strictly liable, the plaintiff must prove that the product
was defective, that the defect was caused by the manufacturer or supplier and that the defect
caused the plaintiffs injuries. Kerr v. Corning Glass, 169 N.W.2d 587 (Minn. 1969).
Further, whether or not strict liability is imposed instead of ordinary negligence may hinge on the
type of defect that caused plaintiffs injuries. For example, while strict liability will attach in
cases involving manufacturing defects, ordinary negligence will be applied in cases involving
design defects or warning defects.
There are three types of defects that are covered by products liability law: manufacturing defects,
design defects and defects in the sufficiency of warnings that accompany a product. We examine
these in detail in the next chapter
Disadvantages for Companies
Strict liability is a type of product liability that holds the selling company liable for
defective or inadequate products. Strict liability is liability without fault, meaning that the
seller of the product is responsible for damages even if the tort wasnt the companys

fault. Strict liability only applies to businesses officially engaged in selling or leasing
products; private sales are not applicable. Strict liability is only enforced in some states
and each state that has strict liability might have variations on the law.
Advantages for Companies
All parties in the products chain of distribution can be held liable for the products tort.
This includes retailers, manufacturers, distributors and wholesalers. This means that in
some cases the liable company might share or transfer the burden of damages by suing
other members of the chain of distribution. However, the liable party must prove the
negligent party among the members of the chain of distribution. Companies under
government contract are usually exempt from strict liability tort damages.
Advantages for Consumers
Under strict liability, injured users can sue for property and personal damages. Strict
liability covers the purchaser and all users of the product. Users include anyone who
actively or passively enjoys the benefits of the product. Users might include the
purchasers family, friends, neighbors or colleagues. In some cases, even bystanders can
recover damages as users.
Disadvantages for Consumers
In several situations, the purchaser and users cannot sue for strict liability tort. A known
general danger is one such situation. Sometimes, the inherent danger of a product -such as a knife or a gun -- is general knowledge. Companies are not responsible for
failing to warn consumers of generally known dangers. Companies are also not liable in
situations where the consumer has misused or modified the product in such a way as to
cause an injury.
1.6 Applicability
The CPA applies to all consumer products and products used at a place of work. The inclusion of
'products used at a place of work' extends the scope of the law to include sales of products
between businesses rather than just sales to consumers if such products are used in a place of

A claim may be brought under the CPA by any person who is injured by a 'defective product',
regardless of whether that person purchased the product. A claim may be brought for death,
personal injury or damage to private property. However, no claim may be brought for damage to
business property or for 'pure' economic losses. In particular, the CPA provides that a claim
cannot be made for the loss of or damage to the defective product itself. Other than these
restrictions, the CPA imposes no financial limit on the producer's total liability.
1.7 Defences to a claim under the CPA
A defense often raised in product liability cases is that the plaintiff has not sufficiently identified
the supplier of the product that allegedly caused the injury. A plaintiff must be able to connect the
product with the party(ies) responsible for manufacturing or supplying it. There is an exception
to this rule, known as the "market share liability" exception, which applies in cases involving
defective medications. Where a plaintiff cannot identify which of the pharmaceutical companies
that supply a particular drug supplied the drug he/she took, each manufacturer will be held liable
according to its percentage of sales in the area where the injury occurred.
Another defense a manufacturer might raise is that the plaintiff substantially altered the product
after it left the manufacturer's control, and this alteration caused the plaintiff's injury. A related
defense is that the plaintiff misused the product in an unforeseeable way, and that his/her misuse
of the product cause the injuries alleged.
Although liability under the CPA is strict , the producer has a number of defences available if a
claim is made. It is a defence to show:

that the product is defective in order to comply with domestic or European law;

the party the claim is being made against did not supply the product;

that the product was not manufactured or supplied in the course of a business;

that the defect did not exist at the time the product was put into circulation;

if the party is being sued because it manufactured a component - that the defect is a
defect within the finished product, and came about because of the way the finished
product was designed or because of instructions given by the manufacturer of the finished

The CPA also includes a 'development risks' defence, which creates a defence if the "scientific
and technical knowledge" at the time the product was manufactured was not such that the
producer of a similar product might have been expected to discover the defect. This could be
particularly important in relation to innovative and high-tech products.
1.8 Duration of Producer Liability
The basic limitation period for claims under the CPA is three years from the date of damage or
injury. However, since damage may not be immediately apparent, an alternative period of three
years from the date when the producer knew - or could reasonably have known - of the claim, is
provided. Since a product may remain in circulation for many years, a claim cannot be made
more than ten years after the product was put into circulation.
Donoghue v Stevenson
In 1932 there was a significant change in law when the House of Lords heard the case of
Donoghue v Stevenson. It was held that the manufacturer can be liable in tort if it can be proven
that he was negligent and if personal injury or damage to property was suffered by a consumer of
the manufacturers product. This precedent establishes the fact that a third party may have a
claim against the person in tort even if there is no contractual relationship between them. Some
damage must be caused in order to have a claim in tort. However as in accordance with
Consumer Protection Act 1987 negligence is no longer a requirement to be proven in relation to
death, personal injury, consumer property. It is only necessary to prove that the Defendant
produced defective product which caused damage to the Claimant. Similar liability is imposed by
European convention on Products Liability in regard to Personal Injury and Death. Consumer
Protection Act however does not cover all types of damage or loss which may be caused be
defective products. Consumer Protection Act also sets out significant limitations and it does not
have retrospective effect.

Thalidomide Case
All over the world, children whose mothers had taken the drug were born with serious
deformities between 1959 and 1962. More than 10,000 children were born with no limbs and
other serious deformities. This was a classic example of design defect yet when the parents
brought claims in negligence they experienced difficulties in showing that the manufactu8rere
had failed in taking reasonable care in producing the drug. An action in negligence required the
parents in the state of their scientific knowledge and at the time of marketing the drugs before the
effects on the babies, the manufacturer should have recognized the risk and thus the plaintiffs
had to make their case in the dark. Every attempt to gain discovery of reports of tests and experts
reports was fought to the last degree. Negligence action will not succeed if the plaintiff is unable
to establish that the defendant failed to exercises reasonable care and there will be no negligence
if the defendant would not have known of possible dangers because of lengths of existing
scientific or technical knowledge. However if the dangers become apparent after the product
have been put out of the market, a manufacturer has a duty to warn potential users in the
extereme3 cases to operate a system of product recall by Lord Atkins.
A and Others v National Blood Authority and others
The Claimants sought damages after being infected with Hepatitis C from blood and blood
products through blood transfusions from March 1988. The claims were brought under the
Consumer Protection Act 1987 (CPA), implementing the European Product Liability Directive
(Council Directive 85/374).
The Claimants submitted that the defendant National Blood Authority, which had taken up
responsibility for the administration of blood transfusions, was strictly liable under Article 6 of
the Directive, without consideration of the history of testing and despite the absence of fault. The
Claimants contended that on the proper construction of Article 6, the blood was defective, the
defendants having no basis to claim the development risk within article 7(e) of the Directive. It
was common ground of both parties that the Hepatitis C virus had not been discovered or
identified at the date when the claims were commenced, and that no screening test to discover
the presence of such a virus in a donor's blood was available until 1989.

The defendant Blood Authority submitted that, while such a risk was known to the medical
profession, the public were not entitled to expect 100% clean blood. Further, it was contended by
the Defendant that the most the public were entitled to expect was that all legitimately expectable
precautions had been taken, in light of the fact that no screening tests had been undertaken. The
Defendant also submitted that they were required to produce the product and, contrary to the
position of commercial producers, had no option of withdrawing the product from the market
rather than incurring liabilities.
It was held that the term "all considerations" in Article 6 of the Directive meant "all relevant
circumstances". It was accepted by both parties that the Directive's aim was to eliminate proof of
fault or negligence in order to make life easier for Claimants to prove their case. Thus, a
consumer would neither have to prove the producer failed to take reasonable steps to comply
with his duty of care, or the producer failed to take all legitimately expectable steps.
Furthermore, it was stated that avoidability, impracticality, benefit to society, utility of the
product, cost and difficulty in taking precautionary measures were not relevant considerations to
be taken into account under Article 6 of the Directive. This was because such considerations did
not align with the purpose of the Directive; if they were so then they would have been included
in derogation from it. Thus any issues of fault, negligence or conduct of the producer were for
consideration under the limited Article 7(e) development risk defence of the Directive.
The infected blood products were deemed non-standard products, the Court stating that the
primary issue for such a product was to whether the public at large accepted its non-standard
nature. It was found however to be immaterial as to whether such products would have been
categorised as manufacturing or design defects, as they were in any event, different from the
norm which the producer intended for public use. Moreover, it was stated that even in the case of
standard products like drugs, some side effects were capable of being "socially acceptable"
where they were made known to the customer.

Richardson v LRC Products Limited

In this case a female claimant brought an action for damages for personal injury suffered when a
condom manufactured by the defendant failed and she became pregnant. The claimant argued
that the condom was defective, as it had been weakened due to damage by ozone while at the

defendant's factory. The defendant agreed that ozone damage had occurred, but contended that it
must have occurred after the product had been used by the claimant, when it had been left in a
cupboard pending the claimant's complaint.
The judge held that the claimant had failed to prove that the condom was defective under the act.
He reached his decision after listening to the evidence of both parties' experts on rubber and the
evidence regarding the defendant's manufacturing process. He preferred the evidence of the
defendant's expert and therefore concluded that the ozone damage had occurred after the condom
had split during sexual intercourse. Moreover, the judge held that it was impossible to be certain
why the condom had split, as scientific research showed that condoms occasionally burst for no
readily discernable reason.
The judge explained that the user's expectation was that the condom would not fail, taking into
account the safety that persons generally were entitled to expect in all circumstances. However,
in terms of Section 3 the defendant had not claimed that a condom would never fail; nor had
anyone ever supposed in the circumstances that any method of contraception would be 100%
Despite having found that the claim would fail because the claimant had failed to prove that the
condom was defective within the meaning of the act, the judge also commented that the
development risks defence would not have been available, as "this provision is, to my mind, not
apt to protect a defendant in the case of a defect of a known character merely because there is no
test which is able to reveal its existence in every case".
These comments - although made obiter (ie, in passing) - demonstrated the courts' increasing
reluctance to afford the development risks defence to defendant manufacturers. They also paved
the way for the most comprehensive UK decision on the development risks defence under the
Abouzaid v Mothercare
The claimant in this case was injured while helping his mother to attach a fleece-lined sleeping
bag to his younger brother's pushchair. The product was purchased from one of the defendant's

shops. While the claimant was fastening the product to elasticated straps at the back of the
pushchair, one of the straps slipped from his grasp and the buckle fastener hit him in the left eye.
As a consequence, the claimant almost entirely lost his sight in that eye. The Court of Appeal
held that although the case was "close to borderline", the product was defective within the




As part of its defence, Mothercare argued that:

the product had not been defective when supplied because there had been no previous
instances of this type of injury and, in 1990, consumers could not reasonably have
expected the product to be designed differently so as to avoid risk of such an injury;

even if the product were defective, the defendant was entitled to use the development
risks defence in Section 4(1)(e); and

the claimant had acted carelessly in trying to attach the product and was therefore partly
responsible for his own injury.

The expert engineer retained by the parties concluded that in 1990, when the product was
manufactured, no manufacturer of childcare products could reasonably have recognized the
potential risk of this type of accident, since the potential risk had not been recognized even by
experts in childcare product safety. However, he would have to advise a manufacturer of such a
product that it would have a safety defect unless (i) the potential risk of injury were eliminated
by design, or (ii) consumers were warned of the possible risks and how to avoid them. The expert
engineer said that such advice would have to include instructions on fitting the product that
avoided the difficulties which the claimant and his mother were evidently having before the
The court found that it was the risk, which arose from the propensity of the elastic straps to
spring back, that caused the product to be defective within the meaning of the act. Furthermore,
it held that Mothercare was not entitled to rely on the passage of time as a factor in deciding
whether the product was defective. As the expert considered that the product was defective in

1999 when the case was heard at first instance, the defect had also existed in 1990, when the
product had been manufactured. It was found that the product was to be judged by the
expectations of the public at large as determined by the court.
The court accepted the respondent's argument that public expectations had not altered between
1990 and 1999. Elasticated products had been in use for many years and there was no suggestion
of relevant technical advances that might reasonably affect public expectations. The court
therefore held that members of the public were entitled to expect better from Mothercare. It
commented that the vulnerability of the eye and the serious consequences that may follow from
an eye injury from a blunt object were factors in such expectation.
The court also considered the development risks defence. Mothercare argued that as there had
been no reported incidents of this kind, the state of scientific and technical knowledge at the time
was such that the risk could not have been identified.
In rejecting this argument, the court stated that the defect (as defined) was present whether or not
previous accidents had occurred. The court held that knowledge of previous accidents was not a
precondition of finding that a defect existed within the meaning of Section 3. Moreover, it
doubted whether the state of scientific knowledge could be wholly inferred from an absence of
previous in-cidents or accidents.
Lockett v Charles
The wife and husband ordered food and ate in a restaurant. The lady contracted food poisoning
from contaminated food. It was held that the husband was an agent to the wife and contracted on
her behalf therefore she could sue on contract for injuries suffered because of contaminated food.
Priest v Last.
In that case the mother had bought a hot water bottle but it was defective and because of that the
child was defected. She will recover the cost to her of caring for her injured child but the child
will be unable to recover in contract for the pain and suffering. Any action by the child must be
in the tort of negligence.

a) The Sale of Goods Act provided a statutory protection by implying terms into contract for the
sale of goods the breach of which gives rise to certain remedies conditions implied into
contract of sale that the goods should be merchantable and if the purpose for which the goods
were bought had been made known to the supplier the goods must be fit for the purpose.
b) The liability under the Sales of Goods Act is strict. It is irrelevant that the retailer is in no
way to blame for the defect and may lack opportunity to discover the defect nor is it limited
to protection against injury to person or property. That means in appropriate circumstances
there can be a liability for economic loss also.
c) Merchantable quality is defined as the goods must be fit for the purpose or for purposes for
which they are normally bought as it is reasonable to expect having regard to the description,
the price and or the surrounding circumstances. So for example if a Person Godley v Perry
the catapult case where a child raptured his eye with a stone after using a catapult that had

been sold through sale by sample buys an electric blanket he can sue the retailer if it is
unmerchantable because its faulty wired and the person suffers electric shock and also if it is
useless and fails to heat the bed at all.
Daniels and Daniels v R White & sons ltd & Tarbard
(1) Consumers have the right:
(a) to goods and services of reasonable quality;
(b) to the information necessary for them to gain full benefit from goods and services;
(c) to the protection of their health, safety, and economic interests; and
(d) to compensation for loss or injury arising from defects in goods or services.
(2) Parliament shall enact legislation to provide for consumer protection and for fair, honest and
decent advertising.
(3) This Article applies to goods and services offered by public entities or private persons.


An action for breach of competition law can be brought under:

The Competition Act, 2011


The Constitution

The Constitution has empowered county governments to regulate markets at county level.
Market regulation decisions by county governments can give rise to competition law claims. In
Thuku Kirori & 4 others v. County Government of Muranga [2014] eKLR, the petitioners
argued that county government subsidy programme on artificial insemination services would
lessen competition in the artificial insemination services industry. Thuku Kirori stands for the
principle that it is possible to frame a competition claim as a constitutional question under
Kenyan law.

Sector-specific market regulation

There are regulations on competition law that are captured at sector-level statutes. For instance,
the Cooperatives Act regulates market conduct by cooperative societies. In Republic v. the
Commissioner for Cooperative Development ex-parte Thika Coffee Mills Limited & another,
coffee millers sought a writ of certiorari at the High Court to quash a government circular whose
effect was to lessen competition in the coffee industry by shrinking market conduct between
coffee millers and coffee cooperative societies. The government circular in Thika Coffee Mills
was held to be contrary to the pro-competition objective in the Coffee Act. A competition law
claim can be founded on ultra vires government conduct under writs for certiorari, prohibition,
and/or mandamus.

Regional and international law

A competition law claim can also be brought under regional and international treaties to which
Kenya is a signatory. These include the East African Community (EAC) Competition Act and
the COMESA Competition Regulations that apply to merger transactions in more than one
member state. Kenya is also a WTO signatory, and, as such, market access rules under the WTO
regime can be applicable in national industry regulation.
For bilateral treaties to form a basis for competition law claims, they must be domesticated in
accordance with the Treaty Making and Ratification Act, No. 45 of 2012.
Section 64 of the Competition Act states that:

Liability for defective goods

Where a person, in trade supplies goods manufactured by it, and such goods are found
to have a defect as a result of which an individual suffers loss or injury, such person is
liable to compensate the individual for the loss or injury suffered.
An individual who suffers loss or damage may recover compensation through court


The Consumer Protection Act (CPA) provides for punishment of businesses that knowingly sell
sub-standard goods and lie on pricing. It also provides for warranties for damaged or injurious
Kenya's CPA also requires regulators to involve consumers when making major decisions about
services and products.
According to the Act, firms which have been proven to have supplied sub-standard or injurious
products will be liable to a raft of punitive measures including recalling such products from the
market, repairing defects, replacing faulty products or issuing refunds to aggrieved customers.
Such firms would also be required to publicly disclose the nature and danger of defects on their
products in conjunction with a newly created regulatory agency, The Competition Authority.
The CPA lists banks, consultancies, and insurance firms as service providers. It also includes all
those involved in the provision of, or the use or enjoyment of facilities for amusement,
entertainment, transport, broadcasting, tourism, recreation, education or instruction. Analysts say
that banks and insurance firms are expected to improve disclosure of information to customers.
The law prohibits unfair trade practices and transactions that affect consumer rights like undercutting and over-pricing of goods and services. The law will also seek to create consumer
awareness on goods and services in the market to ensure they are of high quality and meet health
The law also prohibits use of misleading information to sell goods and services, which is
expected to make companies more responsible in designing advertisements.
The new law also seeks to curb unhealthy business competition through stringent vetting and
monitoring of key undertakings such as mergers and acquisitions.


The Act penalises counterfeiting and offences under the Act include a prison term of up to five
years and/or to a fine not less than three times the value of the prevailing retail price of the goods
in case of a first conviction. In case of a second or subsequent conviction, the prison term is 15
years and the fine is not less than five times the value of the prevailing retail price of the goods.
It is noteworthy that the fine is not pegged on a fixed amount but on the prevailing retail value of
the legitimate goods. 10% of the fines imposed by the court for offences under the Act shall
award to the complainant, 40% to the government of Kenya and 50% to the agency. Standads Act
(1) The Bureau may where it is satisfied that the holder of a permit:
(a) has not complied with any condition specified therein; or
(b) has not manufactured any commodity to which the permit relates to the relevant
Kenya Standard of approved specification, as the case may be; or
(c) has ceased to manufacture the commodity to which the permit relates, cancel, or
suspend the operation of, a permit; and suspension under this subsection may be for such
period, not exceeding one year, as the Bureau deems fit.
(2) The provisions of subsection (1) shall be in addition


A false trade description can be applied to goods by word of mouth, label, notice or
advertisement. An offence can be committed by what is called an implied false trade
Description. E.g. the case where a customer asks for something specific and a shopkeeper
supplies him with something else without telling the customer that it is not what he asked for.
E.g. Penadol Extra instead of Neladol.
Protection against Misleading Statements on Services and Accommodation? Section 6 of the Act
relates to the provision of services and accommodation. It is an offence for any person to make a
statement which he knows to be false or to recklessly make a statement which is false.


It entirely covers product liability through capacity and protection of the consumers.

Following the trend in products liability cases or not, it is sure is that the liability of service
providers has in a sense grown up. The area has gained more, although not nearly enough,
attractive force for researchers in the last couple of years, and the rules have developed
enormously. This development, which was foreseeable given the importance of services in the
current day and age, has largely aimed at achieving greater protection for customers. We have seen
a similar development in products liability in the past. At this point in time, the trend in products
liability seems to be that the development of the rules has reached stand-still, with a slight tendency
to wind back towards rules that are less consumer-oriented -elements of fault liability seem to
emerge. It remains to be seen whether this analysis is entirely correct and whether the same will
happen with regard to services.

Arnokouros (2001): G.I. Arnokouros, Product safety and product liability in Europe: A time for
revision, TvC 2001, p. 10-15
Asser-Hartkamp I: A.S. Hartkamp, Mr. C. Assers handleiding tot de beoefening van het
Nederlands burgerlijk recht. Verbintenissenrecht. Deel I. De verbintenis in het algemeen, 11e druk,
Tjeenk Willink, Deventer 2000
Asser-Hartkamp II: A.S. Hartkamp, Mr. C. Assers handleiding tot de beoefening van het
Nederlands burgerlijk recht. Verbintenissenrecht. Deel II. Algemene leer der overeenkomsten, 11e
druk, Tjeenk Willink, Deventer 2001
Howells and Weatherill: Markets and the law consumer.
Prosser and Keeton on Torts, 5th Edition, West Group, 1984`
The Legal Environment of Business and Online Commerce; Henry R. Cheeseman
Van den Akker (2001): E.J.A.M. van den Akker, Beroepsaansprakelijkheid ten opzichte van
derden, Ph.D. diss. KUB, BJu, Den Haag 2001