Consumer Protection

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Monday, February 28th, 2013

CONSUMER PROTECTION

INTRODUCTION

There is no single Act of Parliament that deals with Consumer Protection, only Common

Law and Statutory Law are applicable.

The most important texts to consider for the course are:

1. Christine Mpaka, Consumer Protection (Oxford University Press)

2. Ben Sihanya, Consumer Protection

3. Oketch Owiti and Okello

4. Brian Harvey and Deborah Perry, Consumer Protection and Fair Trading

5. Robert Law and Woodroggle, Consumer Law and Practice

6. R Crestan, Consumer Law and Practice

7. David and John, Textbook on Consumer Law

Consumer Laws are private law measures as well as public law measures

The Law of Contract is important in Consumer Protection.

The relevant areas from the Law of Contract that are relevant to Consumer Protection include:

i. Misrepresentation. This relates to false presentation or false statements. This is

remedied by voidability of the contract.

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ii. Mistake. Where a consumer enters into a contract due to some type of mistake. It

can either be a unilateral mistake or a bilateral mistake (also called common

mistake) or a mutual mistake. A contract concluded due to mistake is void

iii. Terms of the contract. These may be express or implied terms. Express terms are

terms expressly agreed upon by the parties. Implied terms are by customs or uses,

or by courts in order to give business efficacy, or by statutes.

iv. Exemption or exclusion clauses { completely excluded; limitation of liability}

v. Standard form contracts

The Law of Tort is also important in Consumer Protection.

The relevant areas include:

i. Negligent misstatement. Under such, a liability arises. Liability arises when there is:

 Physical injury to person or property

 Economic loss (Hedley Byne vs. Hells Perk LTD)

ii. Tort of deceit. Arises where a person makes a wrong statement intentionally or

carelessly and recklessly.

iii. Product liability. (Donoghue vs. Steveson) If goods supplied are defective, there is

liability

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A. PRIVATE LAW MEASURES (STATUTORY

LAW)

1. Sale of Goods Act

It deals with the specific types of contract that relates to goods only.

It protects the consumer buyer; it is between individuals, thus a private law measure

It has several provisions that are important.

The terms implied under the Sale of Goods Act are;

 Conditions (terms vital to the contract) it is of essence or which goes to the root of the

contract. The remedy for breach is to repudiate the contract and also to claim damages.

 Warranties. Terms not that vital. The remedy for breach is damages only

 Samuel vs. Davies

Husband went to a dentist and asked the dentist to prepare dentures for his wife. The dentist

prepared them but it was found that the dentist did not fix the wife’s jaws. The dentist argued

that the agreement was whether the dentist to fix the jaws and therefore not liable. The husband

refused to pay. The dentist went to court to recover the price. There were two issues before the

court:

 What type of contract was this? Was it for services or for goods? (The test to be applied

is what the main purpose of the contract is?)

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The judge did not decide this issue but said “if the contract of service, then it is the implied term

of general supply of services that the services must be fit for the purpose they were acquired”. In

this context the dentist was in breach.

In this case, the court implied terms.

If a contract is one for sale of goods, such goods must also be fit for the purpose they are bought

for.

Under the Kenyan Sale of Goods, the implied terms are:

a) Terms as to title
There is an implied condition as to right of sale. This means that a seller has a right to sell the

goods, if he has no right, then he is in breach of this condition. (Rowland [Link])

There are also implied warranties; the goods must be free from any charge or encumbrances. The

buyer shall enjoy quiet possession of the goods. The remedy for breach of such a warranty is

damages.

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b)Condition as to description
The goods must correspond to the description, if not; the seller is in breach of the condition.

 Grant vs. Australian Knightgate LTD

 Beale vs. Tayler

c) Condition as to merchantable quantity

This relates to quality. The goods sold must be of quality. Liability arises if they are not.

Merchantable quality means that goods must be fit for the purpose(s) for which they are usually

bought.

 Wilson vs. Robert, Cockrell and Company

An old lady bought coal sold by the brand name (coalitey). The coal contained some explosives

and it was also contaminated. When she put the coal on the fire place, it exploded and she

suffered injury. She sued the seller. It was held that the seller was in breach of the condition as to

merchantable quality.

These conditions apply under the Sale of Goods Act, if:

 The seller sells the goods in the course of his business.

 The seller shall not be liable for the defects which have been specifically brought to the

buyer’s attention before the contract was made.

 If the buyer has examined the goods, then this condition shall not apply if the

examination was/is to reveal defects.

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d)Condition as to fitness for the purpose

It is an implied term that the goods must be fit for the purpose for which they are bought.

This condition applies only if the seller sales in the course of the business but can also apply if

under a contract of private sale.

 Ashington piggeries LTD vs. Christopher Hills & Co LTD

Person (Z) was a breeder of Mink coats; he went to Y who was a breeder of animal feed. Z told

Y he wanted feed for his minks. Y went to X who were manufacturers of animal feed and told

them that he wanted Herring Meals supply plus preservatives. Herring Meals and the

preservatives became poisonous after chemical reactions and the minks died of poisoning. Z sued

Y for breach of the fitness of the purpose for the feeding of the minks. The feed supplied by Y

was not fit, therefore he was in breach. Z could sue for damages. As y had told X that he wanted

Herring meals, the goods supplied were Herring meals and therefore was in breach of

merchantable quality.

Monday, March 5th, 2013

e) Condition as to sale by sample

There is an implied term that goods must correspond to sample.

 Godley vs. Perry

A boy, 6 years old, bought a catapult from stationery. The stationery had bought a bulk of

catapults from wholesaler ‘W’. The stationer’s wife tested the sample and placed order for it.

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When the boy was using the catapult, without any negligence on his part, the catapult broke as a

result of which the boy’s eye was ruptured.

It was held that the wholesaler ‘W’ was in breach of implied condition as to sale by sample

because the bulk supplied did not correspond with the sample in quality.

The boy sued the stationer for breach of an implied condition as to merchantable quality and the

stationer in turn sued the wholesaler for breach of implied condition as to sale by sample.

The stationer was in breach of implied condition as to merchantable quality and therefore the boy

could recover damages from the stationer. Also, the wholesaler was in breach of implied

condition as to sale by sample and therefore the stationer could also recover damages from him.

f) Condition as to sale by sample and

description

Where there is a contract for sale by description, here there is an implied term or

condition that the goods supplied must correspond both to sample and description.

 Nichol vs. Godfs

A seller sold some oil by showing a sample and describing it as “foreign, refined rape oil”. The

oil supplied corresponded with the sample in quality but it was not “foreign, refined rape oil”. It

was held that the seller was in breach of implied condition as to sale by sample as well as

description.

Under the Sale of Goods Act, there are other implied terms as well:

a) Sale by non – owner

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“Nemo dat quod habet”, that is, a non owner cannot pass ownership

There are however exceptions to the rule which are intended to protect the consumer buyer.

i. Sale under Statutory Law

Sometime a statutory law may provide sale by non owner. Here, the buyer obtains a good title.

ii. Sale under Common Law

For example, goods not collected from the port, the authority after sometime can sell the goods.

Also lost property in the railway not collected or lost items at airlines or from hotels or inns.

iii. Sale under a court order

A court may order the sale of certain goods, for example, goods sold by auction for payment of

rent arrears.

iv. Under the doctrine of estoppels

A person or owner of the goods by conduct or words gives an impression to a 3rd party that the

seller has authority to sell his goods, then he later is stopped from denying the seller’s authority.

v. Sale by seller in possession

If a seller is in possession of goods or title to goods with the consent of the buyer who is the

owner, any sell, pledge or other disposition of the goods by the seller will give good title to the

new buyer or the pledge; provided the new buyer has obtained the goods in good faith for the

price and without notice of the previous sale.

vi. Sale by a buyer in possession

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Where there is a sale of goods in possession of the buyer or title to the goods in possession of the

buyer with the consent of the seller who is the owner any sale, pledge or other disposition will

give good title to the new buyer provided s/he buy’s in good faith and without notice of the

defect in title of the buyer.

vii. Sale by mercantile agent or factor

When the mercantile agent is in possession of goods or documents as to title with consent of

owner, any sale, pledge or disposition by mercantile agent gives the buyer a good title provided

the buyer buys in good faith without notice that the mercantile agent has no authority to sell the

goods.

b) Sale under voidable title

Where a person is in possession of goods to which there is voidable title, if the title is not

avoided up to the time of sale, the person can pass a good title to the buyer provided the new

buyer buys the goods in good faith and without notice that the seller has voidable title to the

goods.

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B. PUBLIC LAW MEASURES

The most important laws are:

1. The Trade Descriptions Act

2. The Standards Act (which establishes KEBS, Kenya Bureau of Standards)

3. The Weights and Measures Act

4. The Food and Drugs Act

5. The Anti-Counterfeit Goods Act

6. The Competition Act, 2010

7. The Consumer Protection Bill, 2007

8. Pharmacy and Poisons Act

9. Public Health Act

10. Law Society of Kenya Act

11. Medicals Practioners and Dentist Act

12. The Nurses Act

DEFINITION OF CONSUMER

In a literal sense, a consumer is one who purchases goods and services. The Molony

Committee on consumer protection in Britain regarded a consumer as one who purchases or hire-

purchases goods for private use or consumption.

This definition includes any person who purchases goods or services supplied by another with

the result that a construction company purchasing building materials for use in the constructing

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of a house estate would be acting as a consumer. Similarly, a manufacturer who buys raw

materials to be used in manufacturing other goods would fall under this definition.

However, for purposes of consumer protection law, the term consumer has a narrower

meaning which is based on the capacity in which the consumer acquires goods or services and

the supplier supplies them.

The general view of the consumer or that given by modern consumer legislation is often

individual dealing with a commercial enterprise.

The term consumer can also encompass a person who makes use of the goods or services

provided by the public sector undertakings or private monopolies subject to public control.

On this basis, Consumer Protection Law would also cover complaints by individuals about the

services provided by the KPLC, the City Council and the Kenya Railways.

Christine Mpaka defines a consumer as any person who uses any goods or services and

can be any person who is affected by the use of those goods and services provided by other

persons.

This definition is wider than the other definition because it covers both contractual as well as

non-contractual consumers.

It seems that this definition may cover such consumers as manufacturers acquiring goods to

manufacture other goods.

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.

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The American guru of consumerism Ralph Nader has taken the view that the term

consumer should be equated with the word citizen and that the Consumer Protection Law should

be regarded as an aspect of protection of civil rights.

The earlier definition, that is, that the consumer is a person who purchases goods or services, is

narrow and also broader at the same time.

It is narrower in the sense that the consumer is defined as the person who purchases goods or

services. In that situation, the definition covers only consumers who have a contractual set up

with the supplier of goods and services.

At the same time, it is broader in the sense that it also applies to those consumers who consume

goods in manufacturing other goods.

The definition given by ISO is wider in the sense that it covers both contractual as well as non-

contractual consumers. This means that it covers those consumers who have no contractual

relationship with the supplier of goods and services such as the plaintiff in Donoghue vs.

Stevenson where it was said that a manufacturer is liable for defective products to the ultimate

consumer even if there was no contractual relationship between them.

Limiting the term consumer to purchasers if they are both undesirable because many people use

goods that they have not bought and if those goods occasioned a harm to a user as opposed to a

purchaser he would be left without a remedy.

Also in the case of services such as medical services may be availed free of charge. In that

situation, if the term consumer covers the purchaser only, then the user who availed services free

of charge would not be able to seek redress in the event of any harm caused to him.

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Why protect a consumer?

The term consumer protection covers a wide range of areas including:

a) Unsafe products and goods.

b) Quantitively deficient goods and services.

c) Fraudulent misleading or unfair trade practices

d) Insufficient information to exercise a product buying decision or a product decision to

use the goods or services.

e) Economic exploitation due to lack of competition protection from excessive prices or

charges

f) Protection from short measures.

g) Protection from formal nuisances and other activities relating to public health and

covered by consumer protection law.

The term consumer protection has been taken to mean those measures which contribute (in)

directly to consumer assurance that he will buy goods of specific quality appropriate to his

purpose. That they will give him reasonable use and that if he has a just complaint there will be

means for redress. (Report of The Molony Committee, 1962)

The term Consumer Protection therefore involves two aspects: a preventive one and a

remedial one.

The former encompasses measures that regulate the supply and quality of goods and services

ensuring that the consumer is not reaped off. It also includes the education of a consumer to

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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 Standards Act and Kenya Bureau of Standards (KEBS) established there-under is a

preventive measure for consumer protection in the sense that no goods below certain standards

can be supplied in Kenya whether locally manufactured or imported.

The remedial or restorative measure is concerned with the measures of interest for those

consumers whose interests and rights have been adversely affected.

Such redresses may either be civil or criminal in nature. For example, under the Sale of Goods

Act, if a seller is in breach of an implied term under the Act, the buyer can repudiate the contract

and/or can sue for damages. Whereas under the Trade Descriptions Act, a seller of goods may

commit an offence if he is in breach of the provisions of the Act.

Given that nobody is compelled to use a service supplied to him or use goods available in

the market, the question arises as to whether a consumer needs to be protected. It is clear that

most people find themselves in a situation where they have to purchase or use items and goods or

services the buyer or user is not always at par with the seller or provider of services. Also the

monopoly enjoyed by certain providers of goods or services makes it easy for such providers to

dictate the terms to the consumer. A good case is the supplier of electricity or water.

The other issue that needs to be addressed is; what would comprise the consumer interest or

rights?

The Constitution of Kenya in Article 46 provides certain rights. It reads:

Consumers have the right—

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(a) To goods and services of reasonable quality;

(b) To the information necessary for them to gain full benefit from goods and services;

(c) To the protection of their health, safety, and economic interests; and

(d) To compensation for loss or injury arising from defects in goods or services.

The consumer expects that the products or services are suitable and appropriate for the intended

purpose. These expectations can be illusive especially where products or services are

quantitively deficit or unsafe or falsely described. The consumer can only find out the defects in

the goods or deficits in quality of goods and services once he has acquired them or uses them.

The consumer is also concerned, particularly in Kenya, about the availability of goods and

services that he needs.

Price is also an important factor in relation to consumer protection because this generally

regulates what a consumer considers to be his needs. The cheaper the product the better for

consumer particularly the prices of essential goods such as food and clothes must be supplied to

the consumer at reasonable prices.

Also in the case of prepaid goods, the consumer wishes to be sure that the marked quantity is the

actual quantity of goods supplied. If concerned about the safety of the goods and services in this

respect, he would like to have adequate information about the use of any product and service to

avoid endangering the life and the lives of others.

In Kenya there are a number of private law and public law measures to protect the consumer.

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Monday, March 12, 2013

The Trade Descriptions Act CAP 505

This Act is based on the U.K Trade Description Act. The UK Act came about as a

proposal by the Moloney Committee which was tasked with giving measures for consumer

protection. The committee proposed the Trade Description Act to deal with goods.

This is an Act of Parliament to:

 Prohibit mis-descriptions of goods, services, accommodation and facilities

provided in the course of trade;

 To prohibit false or misleading indications as to the price of goods;

 To confer powers to require information or instructions relating to goods to be

marked on or to accompany the goods or to be included in advertisements.

Equivalent sections in the Kenyan Act to the

English Law

S3 of the Kenyan law is equivalent to S1 (1) of the UK law. This section deals with

Prohibition of false trade descriptions. The offence created there-under is one of strict liability.

S4 of the Kenyan law is equivalent to S11 (2) of the UK law. This section deals with

False or misleading indications as to price.

S6 of the Kenyan law is equivalent to S14 of the UK law. This section deals with False or

misleading statements as to services.

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S8 of the Kenyan law is equivalent to S2 of the UK law. This section deals with

definition of "Trade description".

S9 of the Kenyan law is equivalent to S3 of the UK law. This section deals with

definition of "False trade description".

S10 of the Kenyan law is equivalent to S4 of the UK law. This section deals with

applying a trade description to goods.

S11 of the Kenyan law is equivalent to S5 of the UK law. This section deals with trade

descriptions used in advertisements.

S18 of the Kenyan law is equivalent to S23 of the UK law. This section deals with trade

offences due to fault of other person.

S19 of the Kenyan law is equivalent to S24 of the UK law. This section deals with

defenses.

S3 of the Kenyan Trade Description Act states that:

Any person who, in the course of any trade-

a) applies a false trade description to any goods; or

b) supplies or offers to supply or has in his possession for supply, any goods to

which a false trade description is applied,

Shall be guilty of an offence

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1. “Any Person”

The term “any person” includes not only a natural person but also a corporation.

S16 of the Act contains special provisions dealing with offences by corporations; making any

director, manager, secretary or other similar officers jointly liable with the corporation if the

offence is committed with their consent or connivance or are attributable to any neglect on their

part.

Also, any person will normally be the seller of the goods. It is also possible for the buyer to

apply a false description.

In Fletcher vs. Budgen, a car dealer told a private customer that his car was irreparable

and fit only for scrub. The dealer then bought the car for £2, carried out repairs costing £56,

obtained a test certificate and advertised it for sale at £135.

It was held that an offence would be committed by a buyer who applied a false trade description

to goods.

In this case, the false description was that the car was only fit for scrub.

2. “Goods”

S2 (1) defines goods to include ships and aircraft, things attached to land and growing crops.

This means that the definition of goods is wider than the definition given under the Sale of

Goods Act.

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3. “Exposing Goods” by S2 (2) (a)

It is provided that a person exposing goods for supply, or having goods in his possession for

supply, shall be deemed to offer to supply them.

This means that goods displayed on a shop window or a supermarket may amount to an offer

under the Trade descriptions Act and even goods in possession for supply may amount to an

offer.

This definition is quite different from that under the Law of Contract where exposition of goods

for supply is not an offer but an invitation to treat.

However under S2 (2) (b) a trade description or statement published in any newspaper, book or

periodical, or in any film or sound or television broadcast, shall not be deemed to be a trade

description applied or statement made in the course of a trade unless it is or forms part of an

advertisement

4. “In the course of his business or trade”

The Act is intended to penalize the dishonest business persons rather than imposing strict

liability on private sellers who may or may not be strictly honest.

This expression is familiar in any other laws such as the Weight and Measures Act and the Food

and Drugs Act.

There have been a number of decisions on this meaning. There is no definition of this phrase in

the Act.

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In John vs. Mattheus it was held by the Divisional Court that it was not possible to commit an

offence under S11 of the Act, which was concerned with misleading indication of price of goods,

where the supplier of goods was a working mens club to a member since the Act was designed to

protect the public, not a husband from his wife or a club and its members.

The provision only related to transactions of a commercial nature.

In Havering London Borough Council vs. Stevenson a car sold by a car hire firm had a false

description as to mileage. Though not car dealers, the firm regularly sold its cars after a period of

use. It was held by the Divisional Court that the sale was in the course of its trade or business as

a car hire firm.

In Fletcher vs. Stedmore the Defendant was a panel beater who ‘repaired and sold cars’. A

dealer and his prospective customer visited him and he falsely stated that the car was ‘with good

little engine’. The panel beater sold the car to the dealer and he then sold to the customer who

was influenced by the panel beater’s remarks.

Despite the lack of any contractual relationship between the eventual buyer and the panel beater,

the latter was directed to be convicted of applying a false trade description in the course of his

trade or business contrary to S1 (1) (a) {S3 (a) of the Kenyan Law}.

In the civil context, the Court of Appeal in R and B Customs Brokers Co LTD vs. United

Dominion Trust LTD a similar issue arose. The plaintiff, a company carrying on the business of

forwarding agent, purchased a car both for business use and for the private use of its directors. It

was alleged that the defendant was in breach of implied terms under the Sale of Goods Act that

the car could be fit for the purpose for which it was bought, namely, “driving it in English

weather conditions” since the roof had leaked. The defendant finance company sought to rely on

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an exclusion clause in the contract. The Unfair Contracts Terms Act (1977) provided that the

liability for breach of implied terms cannot be excluded where the buyer deals as a consumer.

The Court of Appeal held that since the purchase of the car was only incidental to the business or

trade, the transaction would not be seen as an integral part of the business carried on by the

plaintiff as there was no degree of regularity in the type of purchase concerned. It was therefore

followed that the company had purchased as a consumer and the provisions of the Unfair

Contracts prevented the exclusion clause from taking effect.

5. “Applies”

This provision is amplified by other sections of the Trade Descriptions Act via S10 (1).

For the purposes of the Act, a person shall be taken to apply a trade description to goods if he-

a. Affixes or annexes it to, or in any manner makes it on, or incorporates it with-

i. the goods themselves; or

ii. anything in, on, or with which the goods are supplied; or

b. Places the goods in, on, or with anything which the trade description has been affixed or

annexed to, marked on, or incorporated with, or places any such thing with the goods;

or

c. Uses the trade description in any manner likely to be taken as referring to the goods.

Donnely vs. Rowlands

A milk retailer sold milk in bottles, the foil caps of which read “untreated milk produced from

TT cows” followed by his name and address. The bottles themselves were marked with the

names of various well known suppliers to whom the actual bottles belonged. The prosecution

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appealed the magistrate’s dismissal of the information alleging that he had showed bottles of

milk to which the false trade description had been applied.

Dismissing the appeal, the Divisional Court held that the marks on the caps were accurate trade

descriptions. The words on the milk bottles would have been a false trade description had the

public been misled into thinking that the names thereon had something to do with the production

of the milk.

Here the public was not misled and therefore the defendant was saved by the wordings on the

foil cap.

S10 (2) says that an oral statement may amount to the use of a trade description.

In Rees vs. Munday it was unsuccessfully argued that where a vehicle was falsely described as

first class condition and 12 yard capacity in a trade journal.

The operating trade description occurred when the vendor stated to the purchaser orally that the

vehicle he was buying was the one advertised.

Even though the trade description can be deemed to have been applied to goods in accordance

with the Act, it is necessary that the offender should have knowledge at the time of supply or

offer to supply goods that a trade description is applied to them.

In Rees vs. Munday it was held that the trade description was applied when the advertisement

was applied.

In most cases, the trader has clearly described the goods and thus applied a trade description to

them.

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In Tarleton Engineering Co LTD vs. Naffrass a dealer sold a car with a false odometer reading.

He had not altered the odometer himself. He did not know it was false nor did he repeat the

reading.

It was held he had applied a false trade description to the car.

It is difficult to justify such a wide interpretation of any expression used under the Act. It

would have been preferable to bring a prosecution under S3 (b) which provides that where a

trader supplies or offers to supply or has in his possession for supply, any goods to which a false

trade description is applied, shall be guilty of an offence.

Nevertheless it seems that a person applies a trade description even in the absence of a

written or oral statement if the fails to take steps to correct a misunderstanding which is induced

by a description more than by the goods themselves.

Thus in Davies vs. Sumner the Defendant applied a false description to the car. He

represented that it had travelled only 18,100 miles when the true mileage was 118,100 miles by

merely standing by and not disclosing the truth.

No offence is committed under S3 where the description is applied to goods after they

have been supplied.

Thus in Hall vs. Wickens the Divisional Court upheld the acquittal of a motor vehicle dealer who

had falsely described a car as not being in need of repair 40 days after supplying it to the

customer.

The description must precede or be made with the supply of goods.

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Supplying goods with false trade description [S3 (b)]

The second of the two offences contained in S3 is committed when the person supplies or

offers to supply any goods to which a false trade description is applied.

The offence is most likely to occur where the retailer sells goods with the description applied by

a manufacturer, importer or another distributor. Earlier in the commercial trade, to resolve the

problem where goods in a shop window or on a supermarket shelf or put up at an auction, no

offer for sale is made in a contractual sense by the prospectful supplier but it is an invitation to

treat to customers who then makes an offer to buy.

However to resolve this problem, S2 (2) (a) provides that a person exposing goods for supply or

having goods in possession for supply shall be deemed to offer them for supply.

It appears from Cottee vs. Douglas Seaton LTD that a supplier does not commit this offence if

he neither applied the description to the goods nor knew that it is a false, for example, selling a

car with inaccurate odometer.

In this case, ‘A’ a dealer patched up body work of a car which he sold to dealer B. The repair

was so skillfully done that B could not discover it. B then sold it to C.

It was held that B had not committed an offence under S1 (1) (b) [S3 (b)] as he was unaware of

the defects. Accordingly, A was acquitted of an offence under S23 [S18 of the Kenyan Law]

which depended upon the commission of an offence by ‘B’.

In short, knowledge of the existence of description is a prerequisite but not the knowledge of

falsity.

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Monday, March 19th 2013

Meaning of Trade description

S8 of the Trade Description Act defines what is meant by trade description.

Under S8 (1), "trade description" means:

“Any indication, direct or indirect, and by whatever means given, of any of the following

matters with respect to any goods or parts of goods –

(a identity, quantity, size or gauge;

(b) method of manufacture, production, processing or reconditioning;

(c) composition;

(d) fitness for purpose, strength, performance, behavior or accuracy;

(e) any physical characteristics not included in the preceding paragraphs;

(f) testing by any person and results thereof;

(g) approval by any person or conformity with a type approved by any person;

(h) place or date of manufacture, production, processing or reconditioning;

(i) person by whom manufactured, produced, processed or reconditioned;

(j) their being subject to an existing patent, trademark license or copyright license;

(k) other history including previous ownership or use.

a) identity, quantity, size or gauge;

For the purpose of this Act, quantity includes matters such as length, height, area, width, volume

and capacity.

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In the Astral Case (unreported) A&F Pears LTD was convicted of S1 offence (that is, S3

Kenyan Law) for selling jars of facial cream 30% larger in volume than their contents which

were correctly given as 54 grams on the labels, presumably the goods described themselves by

their packaging.

There is some overlay between this section and short weights offences in the Weights and

Measures Act but technically it would be an offence under the Trade Description Act to supply

greater quantities than indicated as was seen in the Astral Case.

b)method of manufacture, production, processing or

reconditioning;

This clause covers statements to the effect that consumer goods have been made or processed

in a particular manner such as home grown or handmade.

Whether this provision would apply to a claim that “eggs are free range” is possibly doubtful

although the word “production” is broad enough to cover the method and in either case

paragraph 8 (1) (e) will apply. It will also cover statement as to size of shoes, shirts, dresses and

other clothing.

c) composition;

This paragraph covers materials from which an article is made, for example, a statement to

the effect that bread is made of whole meal grain or a knife is made of Sheffield steel or that the

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content of a specified product include sardines or that a shirt is made up of 60% polyester and

40% cotton; all would fall under S8 (1) (c).

Similarly, a manufacturer who claims to produce vegetable lard also represents the

composition of this product since the word lard without further specification denotes the use of

pig fat but if the qualifying word is vegetable, then the composition is different, it is purely made

of vegetable (Wolkind vs. Pura Foods LTD)

Similarly, the term “composition” includes mis-description such as natural mineral water, a

mixture of cotton and linen described as linen, artificial silk stockings described as silk are all

covered by this paragraph.

A modern case illustrates that composition includes component parts.

In British Gas Corporation vs. Lubock a gas board brochure stated with regards to gas cooker

for sale; “ignition is by hand held battery torch supplied with the cooker”. This was held to be a

trade description relating to composition of the goods and an offence was committed when the

cooker was sold without a torch despite a notice that specification might be changed without

notice.

This description could also be regarded as coming within clause (e) which deals with ‘any

physical characteristic not included in the preceding paragraphs’

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d)fitness for purpose, strength, performance,

behavior or accuracy;
The matters listed here are all of qualitive nature which arguably is likely to produce

problems since the required quality of goods will depend on a range of factors including the price

paid for the goods, for example, where a car dealer makes an extravagant statement about the

physical performance of a second hand car, S8 (1) (d) may apply. So in

 Robertson vs. Daccicco it was held that to describe an un-road-worthy motor vehicle

as “beautiful as a good little runner” or as “having a good engine” was held to

amount to the application of trade description relating to the quality of its

performance.

The question to consider is what interpretation would the ordinary man place on the words

used in the description.

Many a times these statements might appear remarkably similar to trade puffs.

We do not attach liability for mis-representation under the Law of contract.

However, less difficulty had been encountered in respect of objectively quantifiable statements

about performance.

For example, in Sherrat vs. Geralds a diver’s watch was described as “water proof”. However it

was held to be a false trade description because water proof watch was one which did not fill

with water when immersed in a body of water for an hour and to describe a watch as such when

it leaked was a false trade description.

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Similarly in Dixons LTD vs. Barnett a microscope was described as capable of magnifying

up to 455 times. When it was found that its maximum useful magnification was 120 times, it was

held to be a false trade description which represented the performance capabilities of the article

to which the description is applied.

In Shopshire County Council vs. Simon Dodley LTD it was noted that many breaches of

contract under the provisions of Sale of Goods Act as to fitness of the purpose would also be

technical breaches of the Trade Description Act and therefore prosecutors need to use their

discretion to decide whether the case warrants intervention of the criminal law instead of seeking

a civil remedy.

e) any physical characteristics not included in the

preceding paragraphs;
In case anything is omitted from the list of physical characteristics in S8 (1) (a) to (d), this

paragraph provides a safety net in relation to such physical characteristics.

It would appear that statements relating to component parts such as free gifts or a car to which

additional accessories such as; tool kit or a sun proof roof is fitted, are best explained as relating

to physical characteristics not covered by the earlier paragraphs of S8 (1).

f) testing by any person and results thereof;

The words of this paragraph seem to cover a statement to the effect that goods have been

tested and that they have passed the test.

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A statement that a car has been to the AA Test without further indication that the test has been

passed would probably not be sufficient and in that case the defendant cannot be convicted.

This is a defect in the Act and it has been proposed that where there is a reference to testing, it

should be presumed in absence of a statement to the contrary that there is an indication that the

test has been passed.

In Corfield vs. Sevenways Garage LTD a statement to the effect that a car has a motor certificate

would fall within this paragraph since the grant of certificates is conditional of the goods

satisfying the Ministry Of Transport requirement. But it was held in that case that the seller of

the car was guilty of an offence but the contents of the certificate is not to be taken as trade

description applied by the garage providing the certificate is clearly stated that it is not to be

relied upon. In any event, the statement is not associated with the sale or supply of goods.

g) approval by any person or conformity with a type

approved by any person;

A statement to the effect that goods conforms to the standard set by KEBS or merely display

a kite mark would fall under this provision.

Similarly, a claim that the goods are approved by a particular body, for example, the AA or a

Trade Union or a trade Association would also suffice.

It may also be the case that the use of trademarks of a manufacturer with national reputation can

be said to imply conformity with the type approved by another person

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False representation of government approval or claims that the goods have been supplied to

another person, for example, to the president, constitutes the commission of offences in their

own right.

This paragraph was introduced to prevent false claims such as; that certain encyclopedias were

approved by a well known educational institution.

h)place or date of manufacture, production,

processing or reconditioning;

For example, a description that particular goods are made in Japan is a trade description

under this clause

There are many types of trade description. A description of a commodity as, “Norfolk King

Turkey” would appear to fall under this clause but conventional trade description arising out of

trade uses probably do not. Thus “frozen Yorkshire Pudding” or “Cheddah Cheese”are not

required to be produced only in the area their name suggests.

The paragraph also covers false statements about the date of manufacture.

In Ront Ledge vs. Anza Motors a car was remodeled in 1975 but was manufactured in 1972 and

sold as a new 1975 model. It was held to fall under this paragraph.

Even qualified statement of the age of the vehicle may not be sufficient to escape liability. For

example, in R. vs. Coventry City Justices Farrand exparte it was held that a car dealer’s

statement that the approximate year of manufacture of the car is 1987 though he was not sure

how old the car was, is unwise.

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Similarly in Hollowy vs. Cross a motor vehicle dealer bought a car which had an odometer

reading 716 miles although unknown to him the true mileage was over 70000 miles. He told an

interested customer that he would make inquiry as to the true mileage. Later he told the customer

in his opinion it was probably 45000 miles and wrote on the invoice “recorded mileage 716,

estimated mileage 45000 miles.” He was convicted of an offence under S 1 (1) (a) and (b) [that

is, S3 (a) and (b) Kenyan Law] and the estimate was an opinion and was not an indication falling

under this paragraph.

i) person by whom manufactured, produced,

processed or reconditioned;

The Act covers, goods deemed to be manufactured in the country in which they last

underwent a treatment or process resulting in a substantial change. Prosecution founded on this

paragraph would also be brought by or on behalf of manufacturers in respect of passing off of

their goods by liable manufacturers.

In Horner vs. Kinley Clothing Co LTD where sweat shirts bore a mark or polo name across

the front but were not genuine marks of polo garments made by a company in Denmark which

had registered the trademark.

In Roberts vs. Seven Petroleum Trading Co LTD it was held that a false trade description

was applied where a petrol filling station advertised its products as “esso petrol” when it was

trading in another product.

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j) their being subject to an existing patent,

trademark license or copyright license;

Cases such as Horner will also fall under this provision.

k)Other history including previous ownership or

use.

This deals with such descriptions as; railway lost property, army surplus or export quality

goods and one lady owner vehicle and the like, an indication of the vehicles age by reference

to date of registration or a suffix letter or number plate are covered by this provision.

The majority of cases which have fallen within this paragraph include inaccurate

odometer reading on a motor vehicle but other matters relating to past history of goods made

available for supply will also be relevant, for example, statements to the effect that goods are

shop-soiled or fire-damaged or salvaged stock would relate to past history of the goods in

question.

MATTERS NOT COVERED BY S8 (1)

One of the major problems of the list of prohibited statements is that there could be

circumstances in which a statement may mislead but which does not fall within any of the listed

categories of trade description. For example a statement to the effect, “are worth a particular

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amount” or “represent extra value” cannot amount to a trade description as their assertion is

not factual and therefore incapable of precise ascertainment.

For example, in Cudbury Company LTD vs. Hellday the statement was that the chocolate

supplied had extra value though it was not true. It was held it was not a trade description under

the Act.

However, it is arguable that a reasonable person might regard a statement such as extra value as

implying extra chocolate for the same price and therefore may fall within S8 (1) (a).

Other matters which may not be covered by S8 (1) and which may give a misleading information

include;

 Indication of the identity of the supplier or a distributor of goods,

 Statements concerning the commercial standing of the manufacture, supplier or

distributor of goods such as ability to provide an after sale service,

 A false statement about the content printed and recorded material.

IMPLIED TRADE DESCRIPTION

The Trade Description Act provide that statements in respect of one of the listed matters

may be made directly or indirectly but this still requires the specific words or expression or oral

statement to have been made about the goods to which the description applies.

It would appear that in addition to express statement, a trade description may also be implied

from the conduct of a defendant.

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Support from this view can be gleaned from the act itself which extends the definition of a trade

description to include anything likely to be taken as an indication of a matter disturbing S8 (1).

The fact that there may be liability for implied trade description is gathered from a number of

falsified odometer readings. In each of these cases, there was strictly no express statement but

the courts have no difficulty in applying the provisions of the Act to them. However this

statement cannot be taken too far.

Monday, March 26th, 2013

False trade description under S9 of the Trade

Descriptions Act

A person commits an offence under the Act only when the statement is false.

S9 (1) defines "false trade description" to include-

(a) Any trade description which is false or misleading in a material aspect as regards to the

goods to which it is applied;

(b) Any trade description which, though not false, is misleading, that is to say, is likely to be

taken for such an indication of any of the matters specified in section 8 as would be false to

a material degree;

(c) Anything which, though not a trade description, is likely to be taken for an indication of any

of those matters and, as such an indication, would be false to a material degree;

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(d) Any false indication, or anything which would be false which is likely to be taken as an

indication, that any goods comply with a standard specified or recognized by, or implied by

the approval of, any person, where there is no such person or no standard so specified,

recognized or implied.

(e) Any mark made to so nearly resemble a registered trade mark or monogram as to be likely

to deceive.

By virtue of S9 of the Trade Descriptions Act, a false trade description is one which is false to a

material degree.

This definition is based on the requirement that the description must be of such substance that

it is capable of inducing a purchaser. Thus, a statement which amounts to nothing more than a

trade puff will not be treated as a false trade description on the basis that such a statement is not

capable of inducing a purchaser.

Where a statement is capable of verification, it will attract liability only if it is false to a material

degree. This suggests that a statement can be technically false; it is not likely to mislead anyone

hence no offence is committed. For example, in Cadbury vs. Halliday a statement stated that a

chocolate contained extra value. It was held that such a statement is not capable of verification

hence it would not attract liability.

The last four words in S9, that is, “false to a material degree” came for consideration before the

divisional court in Donnelly vs. Rowlands.

The test applied appears to be objective in that it is necessary to consider whether a reasonable

consumer had been misled.

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Accordingly, if the statement is objectively misleading, it doesn’t matter that the actual customer

had not been misled (Chidwick vs. Beer)

A statement may also be false to a material degree not only by virtue of what it says but by virtue

of what it leaves out. For example; to describe a motor vehicle manufactured in 1972 but

registered in 1975 as new 1975 model is materially false since an average person would take the

description to mean that the vehicle was manufactured in 1975 (Routledge vs. Anza Motors

LTD)

However, to call a car new when it suffered superficial damage which have been repaired using

new part does not amount to commission of an offence (R vs. Ford Motors LTD)

It is clear from these cases that whether or not a description will be held to be false to a material

degree will depend on the context in which the words are used. For example; if what has been

done to a new car is likely to diminish its value, the description new may be regarded as false.

Similarly, the language used by the defendant will also matter. For example; one word taken on

its own may be materially false but if it is qualified by other words it may become accurate. In

Wolkind vs. Pura Foods LTD it was held that the word “lard” implies the presence of pig fat

but the words “vegetable lard” implies a different commodity when the statement on the

packaging is that “100 per cent vegetable oil is used”.

S9 (1) (c) was considered by the Court of Appeal in Holloway vs. Cross.

Sometimes a misleading statement may not amount to a trade description but by virtue of S9 it

can still have liability if false to a material degree and likely to be taken as indication of one of

the matters listed in S8 (1).

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False trade descriptions relating to services under the

Trade Descriptions Act

S6 of the Trade Descriptions Act lays down provisions to control statements about

services, accommodation or facilities provided by any person in the course of any trade.

S6 (1) provides that:

It shall be an offence for any person, in the course of any trade –

(a) to make a statement which he knows to be false; or

(b) recklessly to make a statement which is false, as to any of the following matters-

i. The provision in the course of any trade of any services, accommodation or

facilities;

ii. The nature of any services, accommodation or facilities provided in the

course of any trade;

iii. The time at which, manner in which, or persons by whom, any services,

accommodation, or facilities are so provided;

iv. The examination, approval or evaluation, by any person of any services,

accommodation or facilities so provided;

v. The location or amenities of any accommodation so provided

It may be noted that a consumer is just as much concerned with the quality of the services as

with the quality and safety of the goods which he acquires.

In some cases, the purchaser of many consumer goods will also involve making arrangements for

services in the form of maintenance agreements.

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The term ‘services’ is used in a wider sense to include accommodation and facilities also. These

terms are not defined or fully defined in the Act. However, S6 (3) states that;

In relation to any services consisting of or including the application of any treatment or

process or the carrying out of any repair, the matters specified in subsection (1) shall be

taken to include the effect of the treatment, process or repair.

Conditions of application of section 6

Not all mis-descriptions of services are covered by the provisions of the Trade

Descriptions Act since:

Firstly, there is a detailed list of matters in respect of which an offence may be committed.

Secondly, there is a mens rea requirement as to the facts of the offence committed.

These matters apart, S6 (1) provides that it is an offence for any person, in the course of any

trade or business to make a prohibited statement. It follows as in the case of S3 an offence may

be committed by someone who is not the supplier but has an interest in the outcome of the

transaction entered by the consumer.

S2 (1) defines trade as including business and profession. Therefore it includes activities of a

profession. For the purpose of S6 this is important as many services are provided in a

professional capacity and it should follow that such services fall within the scope of the

provision.

The position regarding profession in Kenya is different than in the U.K which does not have this

express provision of “profession”. But in R vs. Breeze it had been held that S14 of the U.K Law

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(S6 of the Kenyan Law) was capable of applying to false statements concerning qualification

since such an indication was likely to be taken to refer to the quality of services.

Also for the purpose of S6, the statement must have been made.

One obvious example arises when it is communicated to another person. It is possible for a

statement to be made without it being communicated to another. For example; a statement is

made when it is published in brochures which are posted to clients or when the information is

made by the person to whom it is communicated (Wings LTD vs. Ellis)

S6 is not concerned with statements that induce a contract. It does not matter that an offending

statement is made after the conclusion of the relevant contract. For example; in Breed vs. Cluett

a builder built a bungalow, sold it and afterwards falsely stated that it was covered for 10 years

guarantee by NHBRC (National House Buildings Regulatory Commission). The Divisional

Court held that this was a statement as to the provision of services within S14 of the UK Act

(that is, S6 of the Kenyan Act)

The distinction between this case and Hall vs. Wickens is that the provision of services may

involve continuing obligation and had there been no NHBRC guarantee, the builder would have

been called upon to provide services during the guarantee period.

This connection between the supply of services and the defendant’s statement was emphasized

by the Court of Appeal in R vs. Bevelectric LTD.

The three defendants were a company carrying on a washing machine repair business, a director

and an employer. The statement that motors needed to be replaced implied that a genuine

statement had been made on the extent of any necessary repairs.

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They argued that the word provided in S14 (1) (b) [S6 (1) (b) (ii) of the Kenyan Act] covered

statements as to services which the traders were offering to supply or when in the course of

supply but not those which had been provided in the past.

The Court of Appeal disagreed with their argument and upheld their conviction on the ground

that a false statement about services already provided is within the section if it was connected or

associated with the supply of the services in question.

Thus, a mechanic who makes a false statement about the work he has carried out on his client’s

car may still be guilty of an offence under S6 where he has already been paid for the work done.

Mens rea required

It is clear from S6 (1) of the Act that the knowledge of the falsity of a statement or

recklessness in making the statement are alternative requirements.

S6 (1) provides that it shall be an offence in any course of trade:

(a) To make a statement which he knows to be false; or

(b) Recklessly to make a statement which is false.

Knowledge of the falsity of a statement

At first sight, the wording used in S6 (1) (a) would appear to suggest that it is a mens rea

offence.

However, the House of Lords in Wings LTD vs. Ellis were called upon to consider the wording

of S14 (1) (a) of the UK Act [S6 (1) (a) of the Kenyan Act] to make a statement which he knows

to be false.

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The question for the opinion of the court was whether a defendant may be properly convicted of

an offence under S14 (1) (a) of the Trade Descriptions Act where the defendant had no

knowledge of the falsity of the statement at the time of its publication but knew of the falsity and

at the time when the statement was made by the complainant.

The facts of the case were as follows: for 1981-82 winter season, the appellant tour operator had

distributed to travel agent a brochure giving details of accommodation provided for customers.

Shortly after, the brochure was distributed, the tour operator discovered that the brochure

contained a statement which was false to a material degree, namely, that the accommodation

provided in a hotel in Sri Lanka was furnished with air conditioning in bedrooms. This was

untrue but the respondents at the time believed it to be true. In June 1981 on discovering the

error, the respondents took steps to prevent potential customers from reading the false statement.

Even so, in January 1982, a customer read a copy of the brochure in its original form and booked

a holiday on the strength of it.

The respondents argued successfully in the Divisional Court that no offence was committed

because when the brochure was published they did not know that the statement was false and

when it was read by the customer, they honestly believed that a member of the public would read

it in its corrected and accurate form. So they did not knowingly make the false statement.

The House of Lords unanimously upheld the prosecutors appeal against the Divisional Court

decision. The ingredient of an offence under S14 of the Act were thus compounded in view of

the House of Lords to hold otherwise would be to emasculate S14 and to place a premium of

carelessness by the respondent.

It was pointed out that although the tour operators never intended to make a false statement to W

an offence had been committed under S14. According to the court, that the subsection says not it

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is an offence knowingly to make a statement but it is an offence to make the statement. There is

therefore an important difference between S6 (1) (b) under which an offence is committed only if

the trader recklessly makes a statement and S14 (1) (a) [S6 (1) (b)] where an offence may be

committed even though a statement is not made knowingly.

Lord Branden in a concurring speech added that he would have regarded the false statement

about air conditioning contained in the respondent brochure as having been a continuing false

statement, that is, as a false statement which continue to be made so long as such brochure was in

circulation without effective correction.

From this decision it appears that the House of Lords in this case held that the offence created

under S14 (1) (b) [S6 of the Kenyan Act] is in fact one of semi-strict liability.

Recklessly

Another distinction between this offence and S3 offences is that S6 also requires that the

person makes the false statement recklessly.

A reckless statement is defined by S6 (2) as; a statement made regardless of whether it is true

or false and whether or not the person making it had reasons for believing that it might be

false.

Lord Parker C.J in Sunair Holidays LTD vs. Dodd stated obiter that the Act imported the

Common Law definition of reckless.

In this case, travel agents in their brochure described accommodation at a hotel as twin-bedded

rooms with private bath, shower, WC and terrace. They had a contract with the hotel to provide

such accommodation. Two persons booked a holiday with them on this basis but on arrival were

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given rooms without terraces. It was held by the divisional court that no offence had been

committed. At the time the statement was made the accommodation existed and the statement

was perfectly true.

Nothing which happens afterwards would alter the accuracy of the description when it was made.

Further, the definition of reckless does not include negligence.

However, a different view was taken by the Divisional Court in MFI Warehouse vs. Nattrass.

Here a mail order company advertised goods for 14 days free approval and carriage fee. These

offers were intended to cover only some of the goods in the advertisement but appeared to relate

to all of them. The company’s conviction for recklessly making the false statement as to the

provision of facilities was upheld on appeal. The court considered that the chairman of the

company had given insufficient care to his perusal of the advertisement so that the company had

been reckless as to its content.

While the above case to an extent throws doubt on the dictum of Lord Parker and appears to give

a wide meaning to the word “recklessly”, the point of Sunair Holidays LTD still stands.

No offence is committed merely because the trader fails to provide services with the description,

provided that the services or accommodation existed when the statement was made and provided

that he then had intended on providing them.

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Monday, April 2nd, 2013

A False Trade Description

A major problem under S6 of the Act is deciding where the line should be drawn in

distinguishing what is merely a breach of contract not within the meaning of the Act and

statements which are false or misleading within S6 as well as being breach of a warranty.

In R vs. Sunair Holiday LTD tour operators had published a brochure in 1969 for the 1970

season relating to a Spanish hotel in the course of which they made a number of drawing

references to hotel facilities including a swimming pool, posh chairs for hire at the hotel and

special dishes for children. The Court of Appeal allowed the appeal against conviction on the

ground that S14 (S6 Kenyan Law) dealt with statements of which it could be said that they were

false at the time they were made, that is, statements of fact, past or present but not promises or [

] about future as such.

In Beckett vs. Cohen a builder agreed to build for a customer a garage like his neighbor’s within

10 days and did not do so. The Divisional Court upheld the Magistrate’s Court dismissal of

information. This was a statement made in regard to the future. The Act could not be used to

make a breach of contract into criminal offence.

In British Airways Board vs. Taylor a prospective passenger was booked by BOAC on a flight

to Bermuda, a Caribbean island, and a letter confirming the reservation had been received by the

passenger. BOAC in common with many other airlines operated an overbooking policy usually

on correct assumption that some passengers will fail to arrive. At the time of the letter, the flight

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was not overbooked but subsequently it became so and no seat was available for the passenger

when he arrived at the airport. The House of Lords held that the statement in the letter was false

within S 14 (S 6 of the Kenyan Law). Lord Edmund Davies in particular stated that the facts

illustrated that an assumption of existing facts and a promise of future conduct may both be

found in one and the same statement. The factual statement here was that booking would be

confirmed when the overbooking policy made it impossible to do this. However, the appeal was

in fact allowed in the airline’s favor on the technical ground that the British Airways were not

criminally liable for the act of its predecessor BOAC.

Services, Accommodation and Facilities

Making a false statement about services includes a person stating falsely in the

course of trade or business that he has such professional qualifications and since these affects the

likely quality of services and therefore covered by the Act.

In R vs. Breeze a person who had passed only the intermediate stage of an architect qualification

falsely described himself as an architect. However, the court in this case rejected the argument

that S14 (S6) applies to trade and business and not to professionals.

However, the term “services” does not include anything done under the contract of service.

It was also made clear by the Divisional Court in Newell vs. Hicks that where an advertisement

offered a video cassette recorder absolutely free with every registration of Renault car ordered

within a specified period. It was held not to be a false statement as to provision of services,

accommodation or facilities within the meaning of S14 (S 6 of the Kenyan Law). This was

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because the provision could only be read as being concerned with the fact of providing services,

accommodation or facilities not as relating to the terms upon which they are provided.

In other words, this section does not comprehend statements as to price in relation to services,

accommodation or facilities.

Similarly, it was held in Dixons LTD vs. Roberts that a statement “refund the difference if you

buy Dixons deal products cheaper locally at the time of purchase and call within 7 days” was not

capable of giving rise to liability under this section since the offer of a refund on the part of the

price of goods could not be taken as an offer to provide services.

Similarly, in Westminister City Council vs. Ray Alen (Mainshoip LTD) it was held that a

suspect closing down was not offering facilities within the meaning of S14 (S6 Kenyan Law)

Product Liability

Under Common Law, liability for damage caused by defective products is an

amalgam for liability in contract and the tort of negligence.

In early times, contract tended to predominate in judicial matter of tort. This produced what

came to be known as Privity of Contract policy. The Sale of Goods Act provided statutory

protection by implying terms into contracts for the sale of goods. The breach gives rise to certain

remedies. In case of breach of a condition, the consumer buyer can repudiate the contract and/or

can sue for damages whereas for breach of warranty he can only sue for damages.

The liability under the sale of goods is strict. It is irrelevant that the retailer is in no way to blame

for the defect nor is it limited to protection against injury to person or property.

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However, the limitation on effectiveness of contract as a means of general consumer protection

against defective goods arise from the rules of Privity of Contract, that is, a person who is not a

party to the contract cannot benefit from the contract. So for example; if a mother bought an

electric blanket and gave it to a person as a present, he cannot sue the retailer in contract if it

proves to be faulty even if he suffers serious injuries. Also the person has no claim in contract

against a wholesaler or manufacturer because in that situation Vertical Privity denies him the

benefit of merchantability or fitness for the purpose.

Horizontal Privity denies a person remedy in contract where the contract with the retailer is

practically valueless, for example, if the retailer has gone out of business.

The courts in certain cases device certain rules to mitigate the consequences of the rules of

Privity of Contract. They developed what has come to be known as the doctrine of agency.

In Lockett vs. Charles a husband and wife took a meal together in a restaurant. The husband

ordered the food and paid for the bill. The wife contracted food poisoning from the contaminated

food. It was held that the husband acted as his wife’s agent and contracted on her behalf thus she

could sue on contract for the injuries she suffered because of contaminated food.

However, the circumstances which allow an inference of agency will be strictly limited. For

instance, in Priest vs. Last a mother bought a hot water bottle and her small child was scalded by

the hot water bottle. It was held that the mother could sue on her contract with the retailer but the

child could not. She recovered the cost incurred to her for caring for her injured child but the

child was unable to recover in contract for his pain. Any action in such case must be in tort of

negligence.

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Product liability under the Tort of Negligence

Prior to 1932, Tort Law had a very limited application to defective products. The

development of liability in negligence for defective goods was for the first time established in the

case of Donoghue vs. Stevenson. In this case the majority of House of Lords discarded the

Privity of Contract policy. The court saw no reason why the same set of facts should not give one

person a right in contract and another a concurrent right to sue in tort. In that case, Lord Atkin

concluded by finding for the Plaintiff the following proposition which gave birth to a new age of

consumer protection when he said:

“a manufacturer of products which he says in such a force as to show that he intends them

to reach the ultimate consumer in the form in which they left him with no reasonable

possibility of intermediate examination and with the knowledge that the absence of

reasonable care in the preparation or putting up of the products will result in an injury to

the consumers life or property owes a duty to the consumer to take that reasonable care.”

In other words, a manufacturer owes a duty of care to the ultimate consumer.

Lord Thankerton found for the plaintiff on the ground that the manufacturer in a case like this

brought himself in such a direct relationship with the consumer that a duty of care was imposed.

Lord MacMillan also distinguished earlier cases and stressed that the categories of negligence

would be extended and held that there was a duty of care towards the intended consumer on the

part of him who manufactures food and drinks intended for the consumption by members of the

public in the form in which he issued them.

Donoghue vs. Stevenson has since been extended in its range of application to goods and the

principle of negligence derived from that judgment remains of utmost importance even now.

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Range of defendants

Lord Atkin imposed liability on manufacturers. The latter case law extended liability to

assemblers, repairers, fitters, erectors, suppliers of drinking water, suppliers of goods and

services with the retailers of goods have been held liable where their functions went beyond

mere distribution.

For example; a car dealer selling vehicles reconditioned by him and a retail chemist failing to

observe the manufacturer’s instructions to test the products before labeling, were both found

liable to insure users. Where a manufacturer of a finished article buys any component from

another, he is under a duty to consider their suitability and cannot rely blindly on the other to

produce a good design. The manufacturer’s duty extends to taking steps, for example, warning

concerning the dangers which are discovered only when the product has gone into circulation. A

mere distributor or supplier had not actively created the danger in the same way as the

manufacturer but he too may be under a duty to make inquiries or carry an inspection of the

product and if it is dangerous for some reason of which he should have known his failure to warn

of it will then amount to negligence.

In Andrews vs. Hopkinson under arrangement with the Plaintiff, the Defendant sold a second

hand car to a finance company and the company hired the car to the Plaintiff under a hire

purchase agreement. The car was over 18 years old and the Defendant who was a dealer in

second hand cars had taken no steps to see that it was in a road worthy condition. Also the car

was not in his possession for a week. In fact that car had a defective steering mechanism which

caused the claimant to have an accident a week after he took delivery of the car. The defect in

question could have been discovered by a competent mechanic. The court held that the

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Defendant was liable since he was guilty of negligence in failing to make the necessary

examination or at least in failing to warn the Plaintiff that no such examination had been carried

out.

Similarly, suppliers may be liable if a chemist represents the goods to be harmless without

making any adequate tests. For example, in Watson vs. Buckley, Osborne, Garrent and Co

distributors of a dangerous hair dye were held liable because they advertised it positively

harmless and requiring no test.

But it should not be thought that such cases impose a general duty to suppliers to subject all their

goods to an exhausting examination. The duty to examine will only arise if in all the

circumstances they could be reasonably expected to carry out an examination. A second hand car

dealer may be expected to discover the fatal defect in the steering mechanism of one of his cars

and a manufacturer and supplier of chemicals must take reasonable care to discover and give

warning of industrial methods arising out of the chemicals he supplies. BUT a retail grocer, for

example, cannot be expected to institute inspection to discover whether his tinned food is

contaminated. He may be obliged to satisfy himself as to the reputation of his consumers (Fisher

vs. Herrods)

If a third party becomes ill for eating the contaminated food, his remedy, if any, is against the

manufacturer.

The principle in Donoghue vs. Stevenson has been extended from articles of food and drink and

has been applied to kiosks, tombstones, hair dye, industrial chemicals, lifts and motorcars.

Likewise, the term “consumer” includes the ultimate user of the article or anyone who is within

the close proximity to it.

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It follows that the term “consumer” now covers any user of product, thus a child scalded by the

faulty of hot water bottle purchased by her mother can sue in negligence but less obvious person

at risk may also be within the scope of the manufacturer’s duty.

In Barnett vs. H.J Parket & CO the proprietor of a sweet shop was injured by a piece of metal

protruding from a sweet. He was able to recover damages from the sweet manufacturer.

Similarly, in Stennet vs. Hancock a by-stander was held to be within the rule in Donoghue vs.

Stevenson

The duty of reasonable care extends only to the manufacturer’s election, repairs of product but

also to any container, package or pipe in which it is distributed and to the labels, directions or

instructions for use that a company create.

Sale

There seems to be no reason why the rule should not apply where there are no goods distributed

in the course of business, for example, free samples provided by the manufacturer.

The liability of goods supplied in the domestic social context is more disputable, for example,

would a housewife who baked fish pie for a charity be liable to a family who bought it and ate

the pie and suffered food poisoning?

It appears that the narrow rule in Donoghue vs. Stevenson is inapplicable to gratuitous transfers.

There are cases where liability has been established in respect of dangers known to the

transferees.

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Monday, April 16th, 2013

Intermediate Examination

Intermediate examination as originally formulated by Lord Atkin, the principle applies

where there is no possibility of intermediate examination or interference. This means that

Donoghue vs. Stevenson applies to products intended to reach the ultimate consumer in the form

in which they left him with no intermediate examination. To find the Defendant liable, the Court

must be satisfied that the caused the defect and that it was not due to the fault of another party in

the supply chain or even the plaintiff.

The article in Donoghue vs. Stevenson was a sealed opaque bottle of ginger beer but it was soon

established that the goods need not reach the ultimate consumer in a sealed package.

In Grant vs. Australain Knitting Mills LTD the Plaintiff contracted dermatitis, a type of skin

disease, due to excess sulphide present in a pair of underwear. He had not washed the

underwears before wearing them. Lord Wright delivering the judgment of the Privy Council said

that the essential factor was that the consumer must use the article exactly as it left the

manufacturer in all material features and used it as it was intended to be used. The fact that it was

not in a sealed package was irrelevant if it reached the consumer subject to the same defects as it

had when it left the manufacturer. It was not contemplated that the underwears should be washed

before they are worn so that the presence was just as such a much a latent defect as were the

remains of a snail in a opaque bottle.

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The mere opportunity of inspection of the product after it has left the hands of the manufacturer

will not release the manufacturer.

Lord Atkins terms reasonable possibility of intermediate examination had been interpreted to

mean “reasonable possibility of inspection.” So the manufacturer is liable if he had no reason to

contemplate that an intermediate inspection will occur whether by a third party or consumer. But

if he had given warning, For example, to test the product before use, this may be sufficient to

discharge the liability of the Defendant.

In Holmes vs. Ashford the manufacturer of a hair dye were held not liable when a hair dresser

disregarded an instruction to test the product before using it on a consumer.

Similarly in Kuback vs. Hollands the manufacturer of a chemical was held not liable to a school

girl injured in an explosion having warned the retailer to examine and test the chemical before

use. The retailer did not test the chemical or warned the teacher who purchased it that it should

be tested.

In both these cases, the warning did not reach the ultimate consumer but there was nonetheless a

reasonable contemplation of intermediate examination.

In Griffiths vs. Arch Engineering the Plaintiff borrowed from the first defendant a portable

grinding tool which had been lend to them by its owners, the second defendant. The tool was in a

dangerous condition because an incorrect part had been fitted to it by a servant of the second

defendant and the plaintiff was injured in consequence. Although the first defendant had an

opportunity of examining the goods, the second defendant had no reason to suppose that an

examination would actually be carried out and they were liable to the Plaintiff. The first

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defendant were also liable but that does not mean that the second defendant had a defence to the

plaintiff’s claim.

Also in Evans vs. Triple X Safety Glass Co LTD E had bought a car which had been fitted with

a Triple X toughened safety glass windscreen. One year later, the windscreen certainly shattered

for no apparent reason while E was driving the vehicle injuring himself, his wife and his son. In

an action against the manufacturers of the safety glass, it was held that E had not given sufficient

evidence to satisfy the Court that the manufacturer was at fault. The Court suspected that the real

fault lay with the fitting of the windscreen into its frame. In addition, E had owned the car for a

year before the accident and either E or his supplier must have reasonably inspected the

windscreen prior to the accident.

By contrast in Carroll vs. Fearon although the tire the bursting of which caused the accident was

7 years old and three-quarters worn, there was evidence of a manufacturing defect and the action

against the manufacturer succeeded.

The use of the article by the plaintiff for a purpose materially different from that for which the

maker designed it or which he might reasonably be taken to have contemplated will also defeat a

claim but use of a different but similar purpose does not absorb the Defendant from liability.

Nature of loss

Liability under Donoghue vs. Stevenson clearly covers personal injury and damage to

other property. If, for example, a defective heater causes a fire which burns down the consumers

house, he could sue for the value of the house.

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It does not, however, normally cover the financial loss caused by the failure of a product to

fulfill the function for which it was acquired. Such loss is properly claimable only in action by

the buyer against the seller in contract, that is, under the Sale of Goods Act. In other words,

Donoghue vs. Stevenson is about dangerous products. The court are prepared to infer negligence

in respect of manufactory defects placing the burden on the Defendant to rebut this inference by

giving evidence that the defect had been caused by the fault of another party.

Tort is not concerned in defects to quality in goods as compared to defects which give rise to

danger to health and safety to consumer. Although there was an attempt to extend liability in

negligence to cover damage to the manufacturers of the product itself, that is, defects in quality.

This type of loss, that is, pure economic loss is no longer recoverable since Murphy vs.

Brentional District Council. However, it may still be possible to recover in negligence by

claiming that the damage is separate from product which was manufactured by the defendant.

Continuing Duty

Negligence depends on foreseeability of injury at the time the product was put on the

market. A different defect unknown to the manufacturer at that time does not impose liability on

the manufacturer but if the danger became apparent or ought to have been discovered it will be

negligence to continue to produce the same unmodified products or at least to do so without

attaching a warning. In other words as was held in Wright vs. Dunlop Rubber Co LTD even

though originally the design of the product may have complied with all due care but once the

design defect becomes known, the manufacturer is liable in negligence if he continues in making

the unsafe product.

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In respect of unsafe products already in circulation, then according to the rule in Walton vs.

British Leyland (UK) LTD a continued duty of care is owed to whoever is responsible to recover

the defective products and warn users of the risk the defect may cause to their health or property.

Disadvantages of Tort

1. Quality of Goods.

Tort is not concerned with defects in quality of goods as opposed to defects which give rise to

dangers to health and safety to consumers

2. Prove of fault

Tort requires prove of fault. It is extremely difficult to obtain evidence that the manufacturers are

at fault as it would require evidence from internal source and detailed knowledge of the

manufacturing process used.

However to some extent this limitation was eroded by the doctrine of res ipsa loquitor which

means that the facts speak for themselves. It applies with increasing frequency to consumer cases

these days.

The classic example of difficulties caused in proving negligence can be found in Thalidomide

Cases. 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 or other

physical deformities. This was a classic example of designed defect yet when the parents brought

claims in negligence they experienced difficulties in showing that the manufacturers had failed to

take reasonable care in producing the drug. An action in negligence required the parents to prove

that in their state of scientific knowledge, at the time of marketing the drugs before the effects on

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babies, the manufacturer should have recognized the risk. Thus the plaintiffs had to make their

case in the dark. Every attempt to gain discovery of reports of tests and experts report was fought

to the last degree.

The negligence action will not succeed if the Plaintiff is unable to establish that the Defendant

failed to exercise reasonable care and there will be no negligence if the Defendant would not

have known of possible dangers because of the length of existing scientific or technical

knowledge.

However if the danger becomes apparent after the product has been put into the market place, a

manufacturer has a duty to warn potential users and in extreme cases to operate a system of

product recall.

The Role of Common Law in Protecting Consumers in

the Services Sector

Services encompass a wide range of activities. The service sector of the economy has

expanded enormously during the modern times and the range of services offered to the public is

extremely varied. There are repairs, maintenance and servicing of motor vehicles, repairs of

electricity, plumbing, supply of electricity and water, laundry and dry cleaning, furniture

removal, home improvements, education services and professional services. While the service

sector has expanded in economic terms, legally it has somewhat been neglected. A frequent

cause of consumer complaint is that a service provider has not come up to the standard. In most

instances, the service will have been contracted for. Accordingly, the consumer remedies will

depend on the terms of his contract with the supplier. However, in most cases, services may be

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provided independently of any such contract, for example, medical services provided in the

government hospitals is free of charge. In such a case, the principle remedy for the consumer will

lie in tort. Similarly, a purchaser of a house who relies on a building society valuation of a

property he proposes to purchase may not have directly dealt with the surveyor who provides the

valuation in which case no contractual relationship exists and therefore the purchaser’s remedy

will lie under the law of tort.

Sometimes services may be associated with the supply of goods or materials. Usually if the

goods or materials are provided with services, there is a contract for working material but if in a

government hospital, the services are provided free of charge as well as the medicine are

provided without any charge. The liability may be in tort. In such cases, if a product is defective

then a case of product liability is raised but if the case is defective service, then liability may

either be in contract or tort. However in all cases, the provider of services will owe a duty to

exercise reasonable care and skill in the provisional services. Such services provided by the way

of bailment such as repair or garage services will often be subject to contract which includes

implied terms to take reasonable care.

However in the case of gratuitous services, the provider nonetheless owes a duty to take

reasonable care of the consumer’s property and to exercise reasonable care. This means that a

person is responsible for exercising his skill in a trade, business, profession or occupation and the

lack of such a skill will be regarded as a breach of implied terms under the contract if a contract

is in place or breach of duty to take reasonable care.

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Monday, April 23rd, 2013

If there is a contract between the supplier of services and the consumer, then the liability

can be in contract or in tort and the supplier can be sued both in tort and contract if the services

provided are inefficient or defective. But he can recover damages only in one. When there is no

contract, the liability can only be in tort. However, both in contract and in tort, the supplier of

services is required to exercise reasonable care and skill.

In McIntyre vs. Galagher G was a plumber who had been employed to carry out plumbing work

in a row of tenements. This included sealing of some pipes. One of the pipes was not properly

sealed and after some time it leaked causing damage to property on the lower floor for which the

landlord was liable. Evidence proved that the proper method of sealing a pipe was to shoulder it.

Here, G or one of his workmen had only hammered the end of the lead pipe together which

eventually leaked. He was held liable for carrying out the job without the requisite level of skill.

In Brett vs. Williamson a building contract was entered into on a fixed price basis where the

plaintiff had undertaken to lay terrazzo tiles. Having done so in a manner in which the defendant

regarded it as unsatisfactory, the defendant refused to pay. He brought an action against the

defendant on the payment. It was argued for the plaintiff that since such tile laying was a

specialist job, but had been entrusted by the defendant to him and since the defendant did not

claim to be a specialist, the defendant could not therefore claim that the work was not up to the

standard of a specialist. It was held that the standard of care required was that of the type of

practitioner the client believed he was dealing with.

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In Dickson vs. The Hygienic Institute it was held that what is needed is that the contractor must

attain the skill he professes. If he is short of that skill, then he may be liable.

In Makintosh vs. Nelsen the court applied the case of Brett vs. Williamson to slightly different

circumstances where B claimed damages for loss sustained when seriously defective building

work was carried out at her house. The defendant had been an art teacher for several years before

going into business on his own account as an industrial cleaning contractor who also undertook

window cleaning, external paint work and large scale gardening. The plaintiff had admired a sun

lounge which the defendant had built at his own home and inquired whether he could build a

similar lounge at her house. It was clear from the evidence that the defendant held himself out as

capable both of drawing the necessary plans and carry out the building work in a work-man-like

manner but the defendant argued that in the circumstances of the case, he should be judged

according to the standards of an amateur builder. It was held that where a person, even though

not a tradesman, contracts to do work for another he must be held to have professed the requisite

skill to do the job which he had undertaken.

In certain cases, the terms may be implied or inferred in a contract by judges to reinforce the

language of the parties and realize their manifest intention.

In Samuels vs. Davies the plaintiff was a dentist who agreed with the defendant to make a set of

false teeth for the defendant’s wife. The teeth were made and delivered but the defendant refused

to pay for them on the ground that they were so unsatisfactory that his wife could not use them.

There was a controversy as to whether the contract was for the sale of goods or for working

materials. But the Court of Appeal held that in the circumstances of the case, the question was

irrelevant. If it were the former, the provisions of the Sale of Goods Act applied and if it was the

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later they would import into the contract, then the teeth would be reasonably fit for the purpose

for which they had been acquired.

Other terms have been judicially applied in a number of sections. The courts have imported into

contractual transactions for lease of a house that it shall be reasonably fit for habitation.

In Smith vs. Marable it was held that if the house was infested with bugs or a former occupant

suffered from T.B, the tenant would be entitled to repudiate the contract and recover damages.

In Liverpool City Council vs. Irwin the defendant were tenants of a place on the ninth floor of a

fifteen floor tower block owned by the L.C.C, the plaintiffs. There was no formal tenants’

agreement. There was a list of tenants obligations prepared by the Council and signed by the

tenants and there was no express undertaking of any kind by the landlord. Owing to vandalism,

amenities of the block were seriously impaired so that the lifts were not working, the stairs were

unlit and the rubbish shuts did not work. The defendants withheld payment of rent alleging that

the Council was in breach of the implied terms of contract of tenancy. But the House of Lords

rejected this argument. It was considered necessary what obligations the nature of contract itself

implicitly requires and since it was not possible to live in such buildings without access to stairs

and the provision of lift services, it was necessary to imply an absolute obligation on the landlord

to take reasonable care to maintain the common parts in the state of reasonable repairs. However

in this particular case it was not shown that the landlords were in breach of that implied term.

In Reed vs. Dean the plaintiff had hired the defendant’s motor launch for a holiday on a river.

Two hours after he had set out, the launch caught fire. The fire fighter was out of water and the

plaintiff suffered personal injuries and lost his belongings on the boat. The defendant was held

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liable for his failure to make the launch as fit for the purposes of hiring and as reasonable care

would make it.

The principle that the provider of services should exercise reasonable care and skill has also been

applied to professional services.

Lord Clyde in Hunter vs. Henley said that the true test for establishing negligence in diagnosis

or treatment on the part of a doctor is whether he had been proved to be guilty of such failure as

no doctor of ordinary care and skill would be guilty of, acting with ordinary care. This has been

interpreted to mean that if any other professional can be found to agree with the actions of the

doctor or other professional field, then there is no negligence.

The test for professional negligence was provided in Bolam vs. Friem Hospital Manangement

Committte McNair J. proposed the test for professional negligence when he stated the standard

required of a doctor. He said “it is sufficient if he exercises the ordinary skill of an ordinary competent

man exercising that particular art.”

This test is still applied in cases of professional negligence. However, a professional person does

not give an absolute undertaking to achieve a particular result. In most cases of professional

services, for example, a doctor in nature of things cannot undertake to cure his patients and a

lawyer cannot give warranty to his client that he will win his case.

In Eyre vs. Misday Mr. and Mrs. Eyre decided that they did not wish to have any more children

and consulted a gynecologist to discuss sterilization of Mrs. Eyre. The defendant explained the

nature of operation and emphasized that it was irreversible and it must be regarded as permanent

procedure. He did not explain that there was a small risk of failure. The Eyres believed that the

result of the operation would be to render Mrs. Eyre incapable of having more children. However

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after the operation, Mrs. Eyre did become pregnant and had another child. She sued the

gynecologist alleging that there was an implied term that she would be rendered sterile by the

operation. It was held that the defendant had undertaken to carry out a particular type of

operation rather than to render Mrs. Eyre absolutely sterile and that his statement that the

operation was irreversible was not an express guarantee that the operation was bound to achieve

its objective.

A case involving professional services that a standard higher than that of due skill and care can

be expected in certain circumstances.

In Greaves and Co. Contractors LTD vs. Bynum Mekle and Partners the plaintiffs who were

the building contractors had agreed to design and build a warehouse for a customer. They

employed the defendants who were structural engineers to design a warehouse and advised them

that it was essential that it should be capable of permitting materials to be moved around on fork

lift trucks. Shortly after the warehouse was handed over to the customer the floor started to crack

due to vibrations caused by the fork lift trucks. The plaintiff accepted that they were liable to the

customer and paid damages. They in turn brought an action to recover by way of indemnity from

the structural engineers the cost of repairs of the building. It was held that on the facts of the

case, there was a term to be implied into the contract that the engineers would design a building

that would be fit for the purposes which the defendant had stipulated.

A different aspect of the problem of the standard of the work arises where the issue is not the

competence which the person professes but the advice or warning he gives to his customer

before carrying out the job.

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In Terrett vs. Murphy the owner of a furniture shop engaged a painter to paint an extension of a

shop. He was eager to have the work completed and when the painter defaulted, the surplus

primer he was to use was not available for several days. He persuaded the painter to carry on

with the job. This was done despite warning from the painter that the extent of the absence to

primer could result in problems later on. The problems in fact did arise and the owner of the shop

withheld payments. Finding in favor of the painter it was pointed out by the court that if a house

owner merely asks for a job to be done then the contractor would be liable if he did not draw

attention to a particular risk but despite the lack of an earlier warning from the painter then the

work should be executed in a particular manner and the house owner instructions to proceed in a

different manner then the house owner is not entitled to say that the warning was not loud

enough or that he did not appreciate the full measures of the risk.

THE WEIGHTS AND MEASURES ACT CAP 513

The Weights and Measures Act is an important consumer protection law in ordinary

commercial transactions.

Weights and Measures law ensure that during the sale of any goods in loose form, the actual

quantity delivered to the buyer is not less than the quantity contracted for and paid for. In the

case of goods made up in advance, ready for the purpose of sale, the goods are marked with the

correct statement of the net quantity in such a manner that the statement of the net quantity is

readily visible to the purchaser.

The main purpose of the Weights and Measures Act is to provide for the introduction of

International System of Units (S.I) and for the connected purposes.

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Weights and Measures services are also known as Legal Metrology Services.

The Weights and Measures Act recognizes 5 levels of physical standards of measurement. They

are discussed below:

1. The legal units of measurements

In order that the buyers and sellers of goods may understand each other, they should have a

common language of communicating. This common language is upheld by an uniform system of

units measurements. The Weights and Measures Act establishes the Uniform System of Units

based on the International System of Units which is the device and modern form of the matrix

system. The Act further defines the 7 units of measurements in the International System of Units,

namely, the meter, the kilogram, the second, the amphere, the Kelvin, the candela and the mole.

Supplement units, derived units and other units may be added to the basic units by prescription.

It is expressly made an offence by the Act to use falsely any units of measurement not

authorized.

2. The Standards of Measurement

Legal units per se cannot be used to make any measurement in order that the legal units are

translated into practice for the application in various fields. The units must be physically

realized. Physical standards of the legal units are realized by preparing such objects or

instruments as may be necessary for the purpose. Standards are therefore the physical

representations made to specifications of the legal units of measurement. For example, the

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unit of mass in the kilogram which is defined as equal to the mass of international prototype

of the kilogram which is a plain cylinder of diameter equal to the height with slightly

rounded edges which is made of an alloy of 90% platinum and 10% iridium.

The Weights and Measures recognize five levels of physical standards of measurements:

a) Kenya Primary Standards

S12 of the Act provides that the Minister shall procure and cause to be maintained standards of

the meter and the kilogram which has been the Kenya Primary Standards by reference to which

the accuracy of all other standards of those units and of any other unit of measurement directly

related to any of those units shall be maintained. These standards are at the highest level of the

hierarchy of standards in Kenya.

b) Kenya Primary Reference Standards

The Kenya Primary Reference Standards are copies of Kenya Primary Standards together with a

set of measures of capacity, a set of measures of weights, a set of measures of volumes and a set

of carat weights. These standards are the next in hierarchy. S13 of the Act provides that the

Minister shall procure and cause to be maintained copies of the Kenya Primary Standards and

copies shall be designated the Kenya Primary Reference Standards.

c) Kenya Secondary Standards

These copies of the Kenya Primary Reference Standards are third in hierarchy of standards. They

are authenticated as such and cannot be used anywhere other than the premises approved by the

director of weights.

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S14 of the Act provides that the Minister shall procure copies of the Kenya Primary Reference

Standards as he may think fit and shall provide for verifying the same and shall cause such

copies to be authenticated as secondary standards in such manner as he may think proper.

Monday, April 30th, 2013

d) The Kenya Secondary Reference Standards

These are fourth in the hierarchy of standards. Their accuracy is asserted by reference to the

secondary standards at least once in a year. These standards may be used by inspectors in their

day to day duties under the Act.

By S15 (1) it is provided that the Minister shall provide secondary reference standards of the

measures and rates as the director may from time to time recommend.

By S15 (2) the director is required to ascertain the accuracy of the secondary reference standards

by reference either directly or indirectly to secondary standards at least once a year

S15 (3) provides that a secondary reference standard measure of length or a measure of a

capacity may:

a) Be provided as either separate standards or by means of division marked on a larger

measure; or

b) Be either part in whole or in part with subdivision representing any multiples or fractions

of measurement.

e) Working standards and testing equipment

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These are last in hierarchy and consist of such measures and rates as are contained in the

first part of the Fourth Schedule of the Act.

They are used by inspectors in testing and verifying the accuracy of the traders’ equipments

which are used in the ordinary commercial activities between buyers and sellers of goods by

quantity.

S16 (1) of the Act provides that the Minister shall provide for use by inspector and cause to be

maintained working standards of the measures and rates set out in Part 1 of the Fourth Schedule.

By S17 of the Act, it has been provided that the director may, on the application of any person,

government or institution, accept for testing as to the accuracy or compliance with any

specifications.

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Control of Weighing and Measures Equipment in use

for trade

By S 18 (1) the expression “use for trade” means used in connection where:

a. The transaction is by reference to quantity or in the transaction for purposes in which

there is made or implied a statement of the quantity of the goods to which the transaction

relates.

The Act provides for control on weighing and measuring equipment, these controls include:

 Approval of pattern or types of equipment.

In pattern of approval, one or two weighing or measuring instruments before mass production or

importation into the country and are subjected to vigorous tests.

The purpose of such tests is to ensure that instruments will be able to maintain its accuracy and

other qualities and characteristics such as sensitivity, durability, repeatedibility et cetera for a

prolonged period and under varied conditions of use.

 Initial verification

Initial verification means the verification of a weight, measure, weighing or measuring

instrument which had not been verified earlier under the Weights and Measures Act, every such

instrument is required to be duly verified and stamped by inspector before being released for

sale.

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Generally, the accuracy requirements for acceptance on initial verification are stringent. If the

equipment is suitable for trade uses, it is approved and a Certificate issued to that effect. Such

equipment conforming to that pattern can then be allowed to be used for trade purposes.

This test also ensures that the instrument cannot be easily used to perpetrate trade in abnormal

use and where fraud is not intended, the instrument will give consistent results at all times.

 Annual or Periodical Verification of weighing and measuring equipment

Subsequent verification of the equipment after the initial verification is known as periodical

verification or re-verification and is required to be carried out at the prescribed intervals of one

year.

A weighing or measuring equipment is required to be verified every time it has been repaired

even in the period of validity of the period of verification has not expired.

Inspection is carried out to check on the compliance with any of the requirement of the law. It is

an important element of meteorological control from the viewpoint of consumer protection and is

done without notice.

Inspections are usually done without notice but are also carried out as a result of complaints of

the public.

It is illegal to use for trade or having in possession for use in trade, any item which is either false

or unjust. Through these provisions, the Act ensures that consumers purchase goods measured

with proper equipment so that a consumer gets value for his money.

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Control on the sale, manufacture and repair of

measuring equipment

The Act also provides for the control of manufacture, repair and sale of weighing and measuring

equipment.

Manufacture, repair and sale of weights, measures, weighing and measuring equipment falling

within the purview of legal metrology are carried out only by authorized persons who are

required to abide by the law.

A manufacturer or repairer must submit all instruments which he has manufactured or repaired to

an inspector for inspection or stamping before such instrument is sold or returned to be used.

Control on the sale of goods

There are a number of unfair trade practices that dealers in prepaid goods tend to engage in.

These includes:

i. Insufficient information on the label about the contents on the package.

The Act requires every package to carry thereon all or on a label securely affixed there, the

information pertaining to the net quantity of the goods therein together with the name and the

address of the manufacturer on the paper. The information should be conspicuous, legible and

prominent so as to be readily seen and understood by a prospective purchaser. The law also

requires this information to be on the part of the package or label which is likely to be seen by

the customer under normal conditions of display of the package. This information is vital to the

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consumer as it lets him to know what quantity is being paid for in addition to the identification of

the manufacturer or [ ] in case of any complain pertaining to the goods.

ii. Standardization of packages

An important provision made in the law is the standardization of the package sizes to help the

consumer make price comparison without difficulty.

The standardization is also in the interests of the industry as it is one of the factors preventing

unfair competition in trade in the access of standardization.

There would be a possibility of using all sized packages as means of price cutting in order to take

unfair commercial advantage.

iii. Tests checking of packages

The Act provides for testing of a reasonable number of pre-tests in order to ensure that

packages are accurate in the statement of the main quantity.

The sale and labeling of goods rule go further to determine the simple size of such tests.

A detailed procedure for this purpose is prescribed in law and is designed in such a way that

while the legitimate interest of the manufacturer and packets are protected. The interests of the

consumers are also safe guarded.

The manufacturer or packer is required to control the filling of quantities in such a way that the

average content is not less than what is marked on the package.

iv. Deceptive Package

The law also contains suitable provisions to stop products and sale of deceptive packages.

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A deceptive package is a package which is so designed as to deliberately give the consumer an

exaggerated or misleading impression as to quantity of the goods contained therein except bigger

of the package can be justified on the grounds that such dimensions are necessary for giving

protection to the goods in the package or committing the requirements of the machine used for

filling the package.-

Examples of deceptive packages would be unfit space in the cardboard packages containing

soap, detergents or processed food and the use of jars and other containers with increasingly

thick walls in packaging cosmetic things.

S34 (1) (c) of the Act empowers the Minister to prescribe the size or capacity of containers when

pre-packaging goods as he may specify. This provision will regulate production and marketing of

deceptive packaging.

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Offences under the Act

In order to give teeth to law, the Weights and Measures Act has created several offences

with a view to protect consumers.

By S11, it is an offence to use unauthorized units of measurements.

Part II of the Weights and Measures Act details the different units of measurements which

according to the Act are 7 basic measurements. If a person uses for trade any unit of

measurement which is not authorized by the Act shall be guilty of an offence.

Offence for use or possession of certain weights, measures, weighing or measuring

instruments

S20 provides that any person who uses or who has in possession or control for use for trade a

weighing or measuring instrument not constructed to indicate in terms of some weight or

measure authorized by the Act shall be guilty of an offence and the weighing and measuring

instrument shall be forfeited.

S21 - offences relating to false or unjust weights, measures, weighing or measuring

instrument

Every person who uses or has in his possession or control for use for trade any weights,

measures, weighing or measuring instrument which is false or unjust shall be guilty of an offence

and the weights, measures, weighing and measuring instrument shall be liable to be forfeited.

False in this context means that the equipment has been altered or adjusted in some way so as to

make it incorrect outside the prescribed tolerances.

Unjust simply means that the equipment is incorrect outside the prescribed tolerances.

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In this case, the prostitution would not have to prove that the trader knew that the equipment was

incorrect. Its mere presence in the shop premises would be enough.

S22- mode of use of measuring of capacity

In using a measure of capacity, the same shall not be heaped or either shall be stricken with a

round stick or ruler straight and of the same diameter from end to end or in the article sold

cannot from its size or shape of the article permit.

Any person who uses a measure of capacity for trade otherwise than for the above provision shall

be guilty of an offence

S23 - offences relating to fraud in the use of weights, measures, weighing or

measuring instruments

Where fraud is committed in the use of any weigh, measure, weighing or measuring instrument,

the person committing fraud shall be guilty of an offence and the weight, measure, weighing or

measuring instrument shall be forfeited except however that where the court is satisfied that the

property of the person other than the person committing fraud or is a party to it, the court may

waive the forfeiture.

S25 offences for sale of incorrect weights, measures, weighing or measuring

instruments

A person shall not make for sale or cause to be made for sale or cause to be sold any false or

unjust weight, measure, weighing or measuring instrument and no person shall sell or expose for

sale any weight, measure, weighing or measuring instrument intended for use or trade unless it

bears a stamp of verification of a date not earlier than one year previous to such sell or exposure.

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S 26 offences in connection with stamping of weights, measures, weighing or

measuring instruments.

Any person who in cause of any weight, measure, weighing or measuring instrument used or

intended to be used for trade:

a) Not being an inspector or a person acting under the instructions of the inspector must in

any manner, any plug or seal used or designed for use for the inspection of a stamp;

b) Forges, counterfeits or in any way alters or defaces any stamp;

c) Removes any stamp and inserts it into any other weight, measure, weighing or measuring

instrument;

d) Makes any alteration in the weight, measure, weighing or measuring instrument after it

has been stamped such as to make it false or unjust; or

e) Severs or tampers with any wire, cord or other thing by manner of which a stamp is

attached to the weight, measure, weighing or measuring instrument, shall be guilty of an

offence unless such things are done in the course of adjustment or repair.

S28 - offences in connection with obstruction of inspector

Any person who refuses or fails to produce to inspector any weights, measure, weighing or

measuring instrument in his possession, custody or control for use for trade or who obstructs or

hinders or assaults an inspector in performance of his duties or who fails to comply with any

reasonable request made by the inspector shall be guilty of an offence.

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Monday, May 7th, 2013

Defenses under the Trade Descriptions Act

The trade Descriptions Act imposes criminal liability for offences under S3 (a) and (b)

for false trade descriptions under the Act. Also under S6, a person will commit a mens rea

offence if he makes a false trade description.

For both of these offences, S19 of the Act provides certain defenses.

S19 (1) applies to both types of offences and S19 (3) assists only in case of prosecution under S3

(b). S20 is confined to the publication of advertisement.

S 19 (1) provides that:

In any proceedings for an offence under this Act it shall, save as hereinafter provided, be a defence for

the person charged to prove-

a) That the commission of the offence was due to a mistake, or to reliance on information supplied
to him, or to the act or default of another person, or to an accident or other cause beyond his

control; and

b) That he took all reasonable precautions and exercised all due diligence to avoid the commission
of the offence by himself or any person under his control.

The defenses provided by S19 may be divided into five different defenses:

1. Mistake

The defence of mistake as far as is concerned is available only where the mistake is of the

defendant himself. It cannot be used where someone else is involved, for example, an employer

cannot plead the mistake of his employee as his defence.

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In Birkenread and District Cooperative Society vs. Roberts it was held that an employer would

not plead the mistake of an employee as a defence under S24 (1) [S19 (1) of the Kenyan Law]

2. Reliance on information supplied to him

This defence can be taken most of the times by the retailer who generally relies on the

information supplied to him by the manufacturer.

In case of odometer reading, the seller may rely on the information supplied to him by the

previous owner.

3. Act or default of another person

The defence mostly relied upon is that the offence was due to the act or default of another

person.

Where an employer is charged, he may rely on the defence of default of an employee.

More difficulties arise where the defendant is a company and the offence arises out of the act or

default of one of its servants.

The courts have held that the person alleged, for the purpose of the defence to be another person,

must be a person who is not the controlling mind of the company.

In Beckett vs. Kingston Bros (Butchers) LTD where a turkey labeled as “Norfolk King

Turkey” in fact came from Denmark. The mistake had been identified in the course of

consignment of which this was one and all area managers had been warned by the managing

director to alter the labels. One shop manager failed to comply with these instructions. In respect

of this turkey, the defendant company successfully established that the manager of the shop

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concerned was another person and therefore the defence was available to the company. The

Divisional Court stating that it was stultify the defence under S24 [S19 of Kenyan Law] it would

be the law that a person truly responsible for an offence is an employee, the employer provided

he had taken reasonable precautions and had shown due diligence was debarred from using the

defence.

The same issue arose in the House of Lords in Tesco Supermarkets LTD vs. Nattrass. One of

the chain supermarket whose staff had been efficiently trained displayed “a flash offer” on a

poster relating to money of the usual price of washing powder. The shop had run out of the

packets to which they intended to apply the reduced price and a shopper failed to get the price of

an ordinary packet reduced. This had occurred because the shop manager had failed to supervise

the actions of his assistant who had put on display only the remaining fully priced packets. The

company was charged under S 11 (2) giving an implication that goods had been offered at a price

less than at which they had in fact been offered. It was held that the branch manager was another

person from his employers. Lord Reid said that;

“the managers to whom functions are delegated by the company’s board of directors have been

capable of being part of the monument of the company but here the board had set up a chain of

command through regional and distinct supervisors but they remained in control. The branch

managers had to obey their general instructions and also take orders from their superiors.”

The acts or omissions of the branch managers were not acts of the company itself. Tesco was

therefore held to be entitled to the defence of actual default of another person.

4. An accident

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The defendant may rely on the defence of accident where he can prove that the cause of the

offence was an accident.

5. Some cause beyond his control

If the offence is committed because of some force or circumstances beyond the control of the

defendant, ha may rely on this defence.

In Bibby Cheshire vs. Golden Wonder LTD the case came under the Weights and Measures Act

which contained similar defence as S19. Here, a manufacturer successfully established that a bag

of crisps bore a wrong indication of its name owing to an unforeseen fault in the machine. The

manufacturer maintained a normally accurate machine and this was a cause beyond the

manufacturer’s control.

6. Reasonable precaution and due diligence

In addition to identifying grounds under S19 (1) (a) the requirements of S19 (1) (b) must also

be satisfied for a defense to succeed.

The defendant must prove in addition to any one or more of the 5 defenses under S19 (1) (a) that

he was within what is popularly known as the due diligence defence.

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A defence frequently found in consumer protection legislature namely that he took all reasonable

precaution and exercised all due diligence to avoid the commission of the offence by himself or

any other person under his control.

Reasonable precaution involves setting up a system to ensure that things will not go wrong and

due diligence means seeing that the system works properly.

An illustration of this is in Tesco Supermarket vs. Nattrass. In that case, company’s duly after

reasonable precaution and due diligence was to set up an efficient system of training and show

due diligence. In subsequent inspections to see that the law was complied with which Tesco had

done. In this case, the House of Lords rejected the argument that the employer had to show that

he and all other persons to whom he had delegated responsibility are blameless. The company

was held to have satisfied the requirements of S24 (1) (b) [S19 (1) (b) by having a chain of

command with a careful system of control and supervision.]

The second area where due diligence is of special significance relates to false odometer

reading.

Sometimes a car dealer honestly supplies a vehicle with an odometer reading which unknown to

him had been tempered with by an earlier owner. Assuming that he can prove that the offence

was due to reliance on information supplied or the default of another person, the question arises

whether he can also prove that he took reasonable precautions and was diligent. This normally

involves checking with the person from whom he bought the vehicle and if possible to verify the

mileage with the previous owners.

But in Naish vs. Gore the Divisional Court said that it was impossible to lay down as a general

principle that the dealer selling second hand cars must have the log book and check with

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previous owners. In that case, a car originally sold recorded a mileage of 83060 ended up after

several further sales with a recorded mileage of 35000. A charge was brought against the last car

dealer in respect of applying a false trade description as to the history of the car by means of an

innocent odometer reading. The defendant was able to establish a defence under S24 (1) [S19

(1)] when he showed that an independent opinion from an automobile association expert had

been obtained; that the car’s appearance and performance were consistent with the lower

mileage. Here the defence was that the defendant relied on the information supplied to him by

another person.

Also the defence under S24 (1) (b) [S19 (1) (b)] was available to a dealer who bought from

somebody with whom he had been doing business for years and he sold the car before receiving

the log book from his seller.

The defence of due diligence can also be applied in case of sampling, that is, where the goods are

bought by sample.

Ib Rotherham Metropolitan Borough Council vss. Raysum (UK) LTD the defendants, large-

scale importers of “Far East products” imported once in a year about 100000 packets of

children’s wax crayons from Hong Kong. Their agents there had samples analyzed and had to

send back only adverse reports but none of such reports was received. The defendants tested in

England a single package. They sold the crayons as poisonless. The black crayons contained

excessive amounts of toxic materials. The Divisional Court rejected their defence under S24 (1)

[S19 (1)of the Kenyan Act] because they had not checked that the Hong Kong analysis were in

fact taking place and their sample in England was very moderate.

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Suppliers’ Defence

This involves what may be called the defence of innocent supply of goods to a charge

under S3 (b) and is therefore more limited in scope than the defense under S 19 (1).

S19 (3) provides that:

In any proceedings for an offence under this Act of supplying or offering to supply goods to which a

false trade description is applied, it shall be a defence for the person charged to prove that he did not

know, and could not with reasonable diligence have ascertained, that the goods did not conform to

the description or that the description had been applied to the goods

In Barker vs. Hangreaves a second had car dealer advertised a car as being in good condition

throughout and sold it on that basis. The dealer had submitted it successfully for a Ministry of

Transport test and obtained the usual certificate containing printed warnings that the certificate

should not be accepted as evidence of the car’s condition. The car in fact badly corroded on the

under side though this was party hidden. On a charge under S1 (1) (b) [S3 (b)] of applying a false

trade description by advertisement, the defendant relied on S24 (3) [S19 (3)], that is, that he had

relied on the information of the test certificate. The District Court upheld the conviction of the

defendant. With reasonable diligence, some of the corrosion could have been discovered. Nor

could the defense under S24 (1) [S19 (1)] be pleaded.

Offences due to fault of another person

Although the so called by-pass provision in S18 is not a defense, it is appropriate here to deal

with it in view of its close interaction of the defense in S19 (1).

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S28 of the Act states; where the commission by any person of an offence under this Act is due to

the act or default of some other person, that other person shall be guilty of the offence and he

may be charged with and convicted on the offence by virtue of this section whether or not

proceedings are taken against the first mentioned person, for example, B a car dealer runs an

odometer back. He sells the car to another dealer A and A sells the car to a customer. On the

assumption that A had committed an offence under S3 (b), B can be prosecuted under S18

because A’s offence was due to the act or default of B.

Defense of Innocent Publication of an advertisement

S20 of the Trade Descriptions Act provides that in proceedings for an offence under the

Act committed by the publication of an advertisement, it shall be a defense for the person

charged to prove that he is the person whose business it is to publish or to arrange for the

publication of the advertisement and that the received the advertisement in the ordinary cause of

business and had no reason to suspect that its publication would amount to an offence under the

Act.

This defense is available to print and electronic media where they receive their advertisements in

the cause of their business. It may also be available to advertisement agencies who collect

advertisements for publication in the media in the course of their business.

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