Product Liability in Kenya: Manufacturer Obligations and Consumer Rights

Product liability in Kenya determines when manufacturers, importers and retailers must answer for goods that cause harm or fail to do what the buyer was entitled to expect. Kenyan businesses in manufacturing, retail and distribution face exposure under several overlapping statutes as well as the law of negligence and contract. This guide explains the main sources of product liability in Kenya, the defences available and the practical steps a business can take to manage its risk.

Product liability in Kenya: the Competition Act regime

The core statutory rules on defective goods sit in Part VI (Consumer Welfare) of the Competition Act (Cap. 504). Section 64 provides that where a person, in trade, supplies goods manufactured by it and the goods are found to have a defect as a result of which an individual suffers loss or injury, that person is liable to compensate the individual for the loss or injury. The individual may recover compensation through court action. The provision does not make the claimant prove fault in the manufacturer, which makes it considerably more favourable to a claimant than negligence.

Section 65 helps a claimant who does not know who made the goods. The claimant may serve a written request on a known supplier for particulars identifying the manufacturer, and if the claimant still does not know the manufacturer thirty days after the request, a supplier who did not comply is taken, for the purposes of the action, to have manufactured the goods.

Unsafe and unsuitable goods

Section 59 makes it an offence for a person, in trade, to supply consumer goods in respect of which there is a prescribed consumer product safety standard and which do not comply with it, goods declared unsafe by notice, or goods subject to a permanent ban. Where a person suffers loss because goods did not comply with the standard, the loss is deemed to have been caused by the supply of the goods. Section 58 requires the Competition Authority of Kenya to publish a notice where goods are under investigation to determine whether they will or may cause injury, or to warn of possible risks in the use of goods of a kind specified in the notice.

Section 63 addresses unsuitable goods. Where an undertaking supplies goods it manufactured for re-supply, the goods reach a consumer who acquired them for a particular purpose made known expressly or by implication, and the goods are not reasonably fit for that purpose, the undertaking is liable to compensate the consumer for the resulting loss or damage, subject to the exceptions in the section. Contravening a provision of Part VI is an offence under section 70, punishable by imprisonment for up to five years, a fine of up to ten million shillings, or both.

Defences to a defective goods claim

Section 66 sets out defences to an action under section 64. It is a defence to establish that the defect did not exist at the time of supply; that the goods had the defect only because of compliance with a mandatory standard; that the state of scientific or technical knowledge when the actual manufacturer supplied the goods was not such as to enable the defect to be discovered; or, for goods comprised in other finished goods, that the defect is attributable only to the design of the finished goods, their markings, or the instructions or warnings given by the manufacturer of the finished goods. A business relying on any of these defences needs the records to prove it, including testing data, technical files and supply documentation.

The Consumer Protection Act

The Consumer Protection Act (Cap. 501) works alongside the Competition Act. Section 5 provides that the supplier is deemed to warrant that goods or services supplied under a consumer agreement are of reasonably merchantable quality, and that the implied conditions and warranties applying to sales under the Sale of Goods Act (Cap. 31) apply with necessary modifications to goods supplied under a consumer agreement. Any provision purporting to negate or vary those implied conditions or warranties is void. A consumer who has a right to commence an action under the Act may do so in the appropriate court (section 84), and the court may, in addition to ordering recovery of the amounts due, order exemplary or punitive damages or other relief it considers proper. A general penalty of up to one million shillings, imprisonment for up to three years, or both, applies to offences under the Act for which no other penalty is provided (section 92).

Negligence and contract claims

A person injured by a product may also sue in the tort of negligence, which requires proof that the manufacturer owed a duty of care, that the product was defective in design, manufacture or warnings, that this breached the duty, and that the breach caused the loss. A buyer may also have a claim in contract against the seller for breach of the conditions implied by the Sale of Goods Act, which exists whether or not fault can be shown. These routes can be pleaded together with the statutory claims, so a business facing a complaint should expect exposure on several fronts at once.

Managing product liability risk

Practical protection comes from documented quality control and testing, accurate labelling and instructions for use, complaint and incident monitoring, clear recall and withdrawal procedures, and adequate insurance. Compliance with a standard or a licence does not by itself answer a claim, since the statutory defence for compliance is limited to defects that exist only because of compliance with a mandatory standard. Contracts with suppliers and distributors should allocate responsibility for defects and cooperation in an investigation. Our guide to manufacturing licences in Kenya covers the licensing side of the sector.