Topic 3: Public Law Measures in Consumer Protection

Public Law Measures refer to legislative frameworks that indirectly protect consumers by
regulating the actions of producers, sellers, and service providers. These laws aim to maintain
fairness, safety, and transparency in the marketplace.

Key characteristics:

● Prescriptive, Prohibitive, and Protective: These laws lay down specific rules and
practices that must be followed by providers.
● Sanctions and Prosecution: Violating these laws may lead to both civil and criminal
penalties.
● Positive Duties: Providers are required to take proactive measures to ensure compliance,
such as accurately describing goods or providing safe services.
● Regulation and Enforcement: These laws focus on regulatory standards and
enforcement through criminal penalties and civil remedies.
● No Compensation: While these laws protect consumers, they do not directly provide
compensation; they mainly impose penalties for breaches.

Key Aspects of Public Law Measures in Consumer Protection

1. Liberal vs. Restrictive Interpretation

Definition:
Courts may adopt different approaches when interpreting statutes, especially those related to
consumer protection. The liberal interpretation focuses on achieving the broad purpose of the
law, often favoring consumer welfare. On the other hand, a restrictive interpretation limits the
application of the statute, focusing on its strict wording.

Liberal Interpretation:

When courts adopt a liberal interpretation, they focus on the broader purpose of consumer
protection and ensure that statutes are applied in ways that benefit consumers. This approach
may involve stretching the meaning of legal provisions to cover situations where consumer harm
is evident, even if the statutory wording isn’t specific about that harm.

● Example:
Cadbury v Halliday [1975] (false trade descriptions) – A court might interpret the term
"false trade description" liberally to include not just outright lies, but also statements that
are technically true but presented in a way that misleads the average consumer (such as
exaggerated health benefits of a product). This protects consumers from being misled by
ambiguous or vague claims.
 ● Another Example:
Robertson v Dicicco [1972] – A liberal interpretation was applied where a car was
described as a "good runner" but was found to be unroadworthy. The court found the
statement to be misleading, even though it wasn’t technically false. The liberal approach
favored protecting consumers from being misled.

Restrictive Interpretation:

In a restrictive interpretation, the court strictly follows the language of the statute. This approach
tends to limit the application of the law, often benefiting businesses or reducing the extent of the
liability. Courts focus on applying the law exactly as it is written, rather than considering the
broader implications.

● Example:
R v Ford Motor Co Ltd [1974] – The court took a restrictive approach by ruling that
describing a car as "new" did not constitute a false description, even though the car had
been repaired after damage. The repairs were done with new parts, so the court found that
the description was technically correct, limiting the scope of what could be considered a
false description.
● Another Example:
Havering London Borough Council v Stevenson [1970] – The court held that although
the defendant was not a car dealer, selling hire cars was integral to his car hire business.
A restrictive interpretation of "in the course of trade" would have excluded such
activities, but the court’s interpretation allowed for broader application under the statute.

2. Procedural and Administrative Aspects

Definition:
Consumer protection laws often set out specific procedures and administrative frameworks that
providers of goods and services must follow. These laws include requirements for inspections,
enforcement mechanisms, and administrative steps like licensing or permits, ensuring that
providers adhere to standards of fairness and safety.

Procedural Aspects:

Procedural aspects of consumer protection laws dictate how providers must comply with certain
standards. They might establish detailed steps for businesses to follow, such as:

● Labeling: Ensuring that goods are correctly labeled with essential information like
ingredients or warnings.
 ● Testing: Requirements for businesses to test their products for safety before putting them
on the market.
● Example:
Standards Act, Cap 496:
This Act requires businesses to meet safety and quality standards as set by the Kenya
Bureau of Standards (KEBS). Section 9 requires goods to meet these standards and
obtain certification. KEBS inspectors have the authority to conduct inspections and take
samples to verify compliance, providing a procedural framework for enforcement.

Administrative Aspects:

Administrative aspects focus on the role of government agencies in overseeing the enforcement
of consumer protection laws. They may grant administrative powers to certain bodies (like
KEBS or the Anti-Counterfeit Agency) to regulate industries, issue permits, inspect products,
and take enforcement actions.

● Example:
Anti-Counterfeit Act, Cap 130A:
The Anti-Counterfeit Agency is empowered to inspect goods, seize counterfeit products,
and impose penalties. This is an administrative function designed to prevent the
distribution of fake goods and ensure that businesses operate within legal boundaries.
● Another Example:
Public Health Act, Cap 242:
Health authorities are granted administrative powers to ensure public health safety, such
as inspecting food vendors or factories. They can order businesses to clean facilities or
close down premises if they pose a health risk, acting on a procedural framework to
ensure compliance with health regulations.

3. Criminal and Civil Remedies

Definition:
Consumer protection laws often provide for both criminal and civil remedies. Criminal
consequences include penalties like fines and imprisonment for violations, while civil remedies
focus on the regulation of business practices and the imposition of corrective measures.

Criminal Remedies:

Criminal consequences are imposed on businesses or individuals who violate consumer

protection laws. These include fines, imprisonment, or both, and they serve as deterrents to
prevent future violations.
 ● Example:
Under the Trade Descriptions Act, Cap 504, providing false descriptions of goods or
services can lead to criminal sanctions. For individuals, this could mean fines of up to 2
million Ksh or imprisonment for up to 5 years. For corporations, the fines can be even
higher, as per Section 15.
● Another Example:
Anti-Counterfeit Act, Cap 130A:
Criminal penalties for selling counterfeit goods include fines of up to 10 million Ksh or
imprisonment for up to 5 years. These penalties are designed to prevent the proliferation
of counterfeit goods and protect consumers from harm.

Civil Remedies:

Civil remedies often focus on administrative sanctions or the regulation of business practices.
This might include the revocation of permits, orders to correct misleading practices, or requiring
businesses to comply with safety standards. Unlike criminal penalties, civil remedies don’t
involve imprisonment but can be just as impactful on businesses.

● Example:
Under the Standards Act, Cap 496, civil remedies include the ability for KEBS to
revoke permits or certifications for businesses that fail to meet safety standards.
Additionally, businesses may be required to recall products that do not comply with
established standards.
● Another Example:
In Beatrice Ndungu v Safaricom Ltd, the Competition Authority issued a civil
remedy by ordering Safaricom to create consumer awareness about the charges in its
"Lipa na Mpesa" service. Instead of imposing criminal sanctions, the remedy focused on
correcting business practices to protect consumers.

Conclusion

Consumer protection laws are multifaceted, with courts using different interpretations to apply
these laws, administrative agencies enforcing procedural standards, and both criminal and civil
remedies being available for breaches. Understanding the balance between liberal and restrictive
interpretations, as well as the procedural and administrative frameworks that govern businesses,
is crucial for maintaining consumer welfare.

1. Trade Descriptions Act, Cap 504

The Trade Descriptions Act regulates how goods and services are described in trade. Its goal is
to prevent consumers from being misled about the nature, quality, or price of goods.

Key Sections:

● Section 2–7:
o Defines Trade Descriptions and False Trade Descriptions.
o Prohibits misleading indications about goods, services, and prices.

Penalties:

● For Individuals: Fines of up to 2 million Ksh or 5 years in prison, or both.

● For Corporations: Liable to penalties defined in Section 15.

Case: Havering London Borough Council v Stevenson [1970]

Facts: The defendant ran a car hire business but sold vehicles as part of replacing his fleet. The
issue was whether the sale was "in the course of trade or business."
Held: Even though the defendant was not a car dealer, selling cars was an integral part of his
business, making the transaction a trade activity.

False Trade Descriptions:

● Cadbury v Halliday [1975]: A false trade description is one capable of misleading a

purchaser. Trade puffs (exaggerated statements like "best in the world") are not
considered false unless they can induce a purchaser into a transaction.
● Ront Ledge v Ariza Motors Ltd: The omission of key facts can render a statement false.
Selling a car manufactured in 1972 but registered in 1975 as a "new 1975 model" is
materially false.
● R v Ford Motor Co Ltd [1974]: Describing a car as "new" when it had superficial
damage that was repaired did not constitute an offense because the damage was not
material.

2. Standards Act, Cap 496

The Standards Act establishes the Kenya Bureau of Standards (KEBS) and sets out the
powers and responsibilities to ensure that goods and services meet certain standards.

Key Sections:

● Section 4: Defines the functions of KEBS.

● Section 9: Provides for the establishment of standards for goods through gazette notices.
● Section 10A: Allows for standardization marks and the issuance of permits to compliant
goods.
Penalties:

● For the first offense: A fine of up to 1 million Ksh or imprisonment for 12 months, or
both.
● For subsequent offenses: Fines up to 3 million Ksh or imprisonment for 3 years, or both.

Here are some Kenya Bureau of Standards (KEBS) cases in which companies were fined for
violating standards:

1. Betty Industrial Chemical Ltd v KEBS (2020)

● Facts:
In 2020, KEBS suspended the production and sale of substandard hand sanitizers by
various companies, including Betty Industrial Chemical Ltd. This followed an increase in
demand for sanitizers during the COVID-19 pandemic. KEBS conducted tests on hand
sanitizers in the market and found that Betty Industrial Chemical Ltd’s sanitizers failed to
meet the required 70% alcohol content to be effective against germs.
● Outcome:
KEBS issued a public notice recalling the substandard sanitizers and fined Betty
Industrial Chemical Ltd for failing to adhere to the required standards. The company was
also ordered to stop producing and distributing the product until it complied with the set
guidelines. KEBS further emphasized the need for product manufacturers to ensure their
products meet quality standards, especially during the health crisis.

2. Diamond Wholesalers Ltd (2021)

● Facts:
Diamond Wholesalers Ltd was found to be manufacturing and distributing substandard
edible oil under the brand "Bahari Fry" in 2021. KEBS conducted routine inspections and
discovered that the oil did not meet the quality specifications under the edible oils
standard. The oil had higher than permitted levels of free fatty acids, which posed
potential health risks to consumers.
● Outcome:
KEBS fined Diamond Wholesalers Ltd and ordered a recall of the substandard Bahari Fry
oil from the market. The company was also required to stop further production until
compliance with KEBS standards was achieved. The fine and recall served as a deterrent
for other companies distributing substandard food products.

3. Haco Industries Ltd (2014)

 ● Facts:
In 2014, Haco Industries was implicated in a scandal involving the use of fake KEBS
quality marks on their products, particularly on their Bic ballpoint pens. KEBS
discovered that the company had printed the Standardization Mark (S-Mark) on its
products without proper certification. This misled consumers into believing that the
products met the required quality standards, when in fact they had not been properly
certified by KEBS.
● Outcome:
Haco Industries was fined for using counterfeit KEBS marks and was ordered to cease
further distribution of the uncertified products. The company was required to undergo full
testing and certification for its products to be allowed back into the market. KEBS also
implemented stricter enforcement measures to prevent further misuse of its quality marks.

4. Proctor & Allan Kenya Ltd (2019)

● Facts:
In 2019, Proctor & Allan Kenya Ltd was found guilty of producing substandard baby
porridge under the brand "Nutri-Sip." KEBS testing revealed that the product contained
unsafe levels of aflatoxins, which pose serious health risks, especially to infants.
Aflatoxins are carcinogenic substances found in moldy grains, and the discovery of these
in the baby porridge raised serious concerns.
● Outcome:
KEBS fined the company and ordered an immediate recall of the contaminated Nutri-Sip
baby porridge from the market. The company was also directed to improve its quality
control processes to prevent the recurrence of such an issue. Additionally, KEBS issued a
public warning to consumers to stop using the product until the company addressed the
contamination.

5. Kenafric Industries Ltd (2022)

● Facts:
Kenafric Industries Ltd, a major manufacturer of snacks and confectionery, was fined by
KEBS in 2022 after it was found that some of its snack products contained higher-than-
allowed levels of food additives, including artificial colorants. KEBS inspections
revealed that the levels of these additives exceeded the permissible limits, potentially
posing health risks to consumers.
● Outcome:
The company was fined and ordered to recall the affected batches of its snack products.
Additionally, Kenafric Industries was instructed to review its production processes to
ensure future compliance with food safety standards. KEBS also increased its
surveillance on the food and beverage sector to ensure adherence to set standards.
Summary of Applicable Laws and Regulations:

● KEBS Act (Cap 496): KEBS is responsible for ensuring that products meet the standards
set for safety, health, and quality. Failure to comply can result in fines, recalls, and
production stoppages.
● Food, Drugs, and Chemical Substances Act: This act governs the safety and quality of
food and chemical products. It was applied in cases involving substandard edible oil and
baby porridge.
● Competition Act, 2010: In some instances, such as with counterfeit KEBS marks, the
law requires consumer protection against misleading or deceptive conduct, aligning with
KEBS mandates.

These cases illustrate KEBS's role in protecting consumers from substandard and potentially
harmful products through fines, recalls, and enforcement of quality standards.

3. Weights and Measures Act, Cap 513

The Weights and Measures Act regulates the use of standard measures for trade to ensure
fairness in commercial transactions.

Key Sections:

● Sections 3–10: Provides for how weights, lengths, and measures must be used in trade.
● Section 11: Defines offenses for non-compliance, such as selling underweight goods.
● Section 23–26: Establishes the responsibility for the testing of measuring equipment.

Consumer Protection:

● Ensures consumers receive the correct quantity of goods and that sellers do not use false
measurements.
● Introduces International System of Units (SI) for accurate measurements.

4. Public Health Act, Cap 242

The Public Health Act protects consumers from health risks related to goods and services, such
as unsafe food or exposure to infectious diseases.

Key Sections:
 ● Sections 13 and 18: Health authorities are tasked with preventing outbreaks of infectious
diseases.
● Section 28: Requires the cleaning and disinfecting of buildings to prevent disease.
● Section 115: Deals with nuisances, such as unfit dwellings that can cause public health
risks.

Consumer Protection:

● Ensures that food, water, and housing meet minimum safety standards.
● Provides penalties for sellers or service providers who endanger public health.

5. Anti-Counterfeit Act, Cap 130A

The Anti-Counterfeit Act combats the production and sale of counterfeit goods, which can
deceive consumers and pose safety risks.

Key Sections:

● Section 2: Defines counterfeiting and counterfeit goods.

● Section 4: Establishes the Anti-Counterfeit Agency to enforce the Act.
● Section 23: Grants powers to inspectors to seize counterfeit goods.
● Section 32: Details the offenses related to counterfeiting.
● Section 35: Lists penalties, including imprisonment and fines.

Case: Petition No. 409 of 2009 – Patricia A. Ochieng v Attorney General &
Others

Court: High Court of Kenya

Date: 2012

Petitioner: Patricia A. Ochieng (supported by Médecins Sans Frontières - MSF and other
stakeholders in health advocacy)

Respondents: Attorney General, Anti-Counterfeit Agency (ACA), and the Kenyan

Government

Facts:

Patricia A. Ochieng filed a petition against the Attorney General and other governmental bodies
challenging the constitutionality of sections of the Anti-Counterfeit Act, 2008. The petition
arose from concerns that the Act, which sought to curb the manufacture, sale, and distribution of
counterfeit goods, was being applied in a manner that endangered public health by potentially
restricting access to affordable, life-saving generic medicines.
 1. The Definition of Counterfeit:
The Anti-Counterfeit Act defined "counterfeit" broadly, encompassing any goods or
products that mimic patented or trademarked items. This definition did not distinguish
between counterfeit drugs (which are fraudulent and often unsafe) and legitimate, quality-
assured generic medicines, which are legally produced after the expiration of patents.
Generic medicines have the same active ingredient as brand-
name medicines and work in the same way, but may look
different and contain different non-active ingredients
2. Health Implications:
The petitioner argued that the broad definition could lead to the restriction or seizure of
generic drugs that are vital to the treatment of diseases such as HIV/AIDS, malaria, and
tuberculosis. Generic drugs, which are more affordable, are critical in ensuring access to
medication, especially for the poor and vulnerable populations in Kenya. Patricia A.
Ochieng, herself living with HIV, demonstrated how such a law could limit her access to
affordable antiretroviral (ARV) drugs.
3. Right to Health:
The petitioner and health rights organizations contended that the Anti-Counterfeit Act
violated the right to health as enshrined in Article 43(1)(a) of the Constitution of Kenya,
which guarantees the right to the highest attainable standard of health, including the right
to access medicines. The concern was that the Act's implementation would lead to a de
facto ban on generic medicines, leading to price hikes and making essential medications
unaffordable for many Kenyans.
4. International Law:
The petition also invoked Article 2(6) of the Kenyan Constitution, which incorporates
international treaties and conventions into domestic law. The petitioner referred to
Kenya's obligations under the International Covenant on Economic, Social and
Cultural Rights (ICESCR), which obligates states to progressively realize the right to
health and ensure access to affordable medicines.
5. Government's Argument:
The government defended the Act, arguing that it was necessary to combat counterfeit
goods, which posed significant health risks. They asserted that the Act was not intended
to target generic drugs but rather to curb substandard and fake medications that endanger
public safety. The government maintained that protecting intellectual property rights was
crucial for innovation and investment in the pharmaceutical industry.

Court's Decision:

In a landmark ruling, the High Court of Kenya sided with the petitioner, declaring that the Anti-
Counterfeit Act, 2008 was unconstitutional insofar as it could be interpreted to restrict access to
affordable generic medicines. The court emphasized that any legislation that undermined access
to essential drugs violated the right to life and health under Articles 26 and 43 of the
Constitution.

1. Protection of Public Health:

The court held that the right to health, as outlined in the Constitution, must take
 precedence over intellectual property rights when access to essential medications is at
stake. The legislation needed to make a clear distinction between counterfeit drugs, which
are harmful, and generic medicines, which are legally produced and play a vital role in
public health.
2. International Obligations:
The court also affirmed Kenya’s obligation under international law to ensure access to
affordable medicines. It ruled that the broad definition of "counterfeit" in the Act
contradicted Kenya's duty to fulfill the right to health under the ICESCR.

Impact:

The case set a significant legal precedent in Kenya, underscoring the primacy of the right to
health over intellectual property rights. It also drew international attention, highlighting the
ongoing global debate between protecting intellectual property and ensuring access to affordable
medicines in developing countries.

1. Legislative Amendment:
Following the ruling, there was pressure on the Kenyan government to amend the Anti-
Counterfeit Act to explicitly exclude generic medicines from its scope and to ensure that
enforcement actions targeted truly counterfeit products, not legitimate generic drugs.
2. Global Influence:
The decision was hailed by health advocacy groups around the world and contributed to
broader discussions about balancing public health needs with pharmaceutical patent
protections, particularly in the context of life-threatening diseases in low- and middle-
income countries.

Key Legal Provisions Involved:

● Anti-Counterfeit Act, 2008

● Constitution of Kenya 2010, Articles 43 (Right to health), 26 (Right to life), and 2(6)
(Incorporation of international treaties).
● International Covenant on Economic, Social and Cultural Rights (ICESCR)

This case remains a critical reference point in discussions about access to medicines, intellectual
property law, and the constitutional right to health in Kenya.

6. Other Relevant Statutes

1. Medical Practitioners and Dentists Board:

o Prohibits unqualified persons from practicing medicine to protect consumers from
substandard medical services.
2. Competition Act:
o Controls mergers, takeovers, and restrictive practices, ensuring fair competition
and protecting consumers from monopolistic practices.
 3. Fertilizers and Animal Foodstuffs Act:
o Regulates the importation and sale of fertilizers and foodstuffs, preventing the
sale of products that could harm public health.
4. Food, Drugs and Chemical Substances Act:
o Prevents the adulteration of food and drugs, ensuring that consumers receive safe
and uncontaminated products.

1. Beatrice Ndungu v Safaricom Ltd

● Facts: Beatrice Ndungu, a consumer of Safaricom’s mobile money service "Lipa na

Mpesa," lodged a complaint with the Competition Authority of Kenya (CAK), citing
that Safaricom was levying undisclosed transaction charges for the service. The charges
were not transparently communicated to consumers, who were unaware of the hidden
fees applied when making payments. Ndungu argued that Safaricom’s failure to disclose
these fees violated the principle of fair trading and consumer protection. Safaricom was
allegedly benefitting from a lack of transparency, causing financial loss to consumers
who had no clear understanding of the service's cost structure.
● Applicable Law: The case involved a violation of the Competition Act, 2010,
particularly Section 56, which governs unconscionable conduct in consumer transactions.
This section requires businesses to act in good faith and not to mislead or take unfair
advantage of consumers. It also emphasizes that service providers should disclose
relevant costs to avoid deceptive practices.
● Outcome: The CAK, upon reviewing the complaint, found Safaricom in breach of its
consumer protection obligations. Safaricom was ordered to enhance its transparency
measures by making the charges for the "Lipa na Mpesa" service visible and
comprehensible to all users. They were further required to update their terms and
conditions and improve public awareness campaigns to inform consumers about these
charges, preventing further violations of consumer rights.

2. Annie Waithera v Naivasha Komarock

● Facts: Annie Waithera purchased a water dispenser from Naivasha Komarock, a retail
establishment, only to discover that the product was defective upon its first use. After
reporting the defect to the store, she was denied a refund or a replacement. Frustrated by
the lack of remedy, Waithera lodged a complaint with the Kenya Bureau of Standards
(KEBS) and the Competition Authority of Kenya (CAK), arguing that Naivasha
Komarock had violated her rights as a consumer by selling substandard goods. She also
claimed that the product did not meet the required consumer safety standards under
Kenyan law.
● Applicable Law: The complaint referenced several legal provisions, including the
Consumer Protection Act, 2012, specifically Section 12, which mandates that goods
sold must be of merchantable quality, fit for purpose, and free from defects. Section 13
also applies, which states that if a product is found to be defective or unsafe, the seller is
obliged to repair or replace it or offer a refund.
 ● Outcome: Upon review, the CAK and KEBS found Naivasha Komarock in breach of its
obligation to supply products of acceptable quality. The company was ordered to replace
the defective water dispenser at no additional cost. The case reaffirmed the legal
requirement that sellers must supply goods that meet the standards of quality, durability,
and safety as expected by consumers.

3. Marisella Ouma v Zuku

● Facts: Marisella Ouma was a long-time subscriber to Zuku’s internet service. Without
prior notice, Zuku altered her internet package by reducing the data speed and increasing
the price. Ouma lodged a complaint, asserting that Zuku had unilaterally changed the
terms of the service agreement without her consent or proper notification. She argued that
this constituted a breach of her consumer rights and violated principles of fairness in
contractual dealings. The changes adversely affected her internet service, reducing its
value while charging her more for an inferior product.
● Applicable Law: This case was governed by Section 56 of the Consumer Protection
Act, 2012, which prohibits unconscionable conduct in consumer transactions. This
section requires that any service provider must notify a consumer of any changes to the
terms of service, and cannot unilaterally impose those changes. The Fair Competition
and Consumer Protection Act also came into play, ensuring that service providers
adhere to principles of transparency and fair dealing.
● Outcome: The CAK ruled in favor of Ouma, stating that Zuku’s actions constituted
unconscionable conduct by failing to provide sufficient notice of the alterations to the
service. Zuku was ordered to reinstate the original service package or to provide
compensation equivalent to the difference in value between the original and modified
package. Furthermore, Zuku was directed to revise its consumer notification procedures
to ensure that changes to service terms were communicated clearly and in advance to all
customers.

Summary of Laws Applied:

1. Consumer Protection Act, 2012:

o Section 12: Ensures that goods are of merchantable quality, fit for their intended
purpose, and free from defects.
o Section 13: Requires sellers to repair, replace, or refund defective products.
o Section 56: Prohibits unconscionable conduct in consumer transactions, requiring
businesses to disclose material facts and avoid misleading consumers.
2. Competition Act, 2010:
o Section 56: Relates to misleading or deceptive conduct in commercial
transactions, requiring service providers to act fairly and transparently when
dealing with consumers.

These cases underscore the importance of transparency, fair dealing, and adherence to consumer
protection standards by businesses operating in Kenya.
Conclusion

Public law measures are essential tools for ensuring the safety and fairness of goods and services
in the marketplace. They protect consumers by prescribing standards, imposing duties on
providers, and enforcing penalties for non-compliance. These statutes ensure that consumers are
not deceived by false trade descriptions, substandard goods, or counterfeit products.

Practice Exam Questions

Trade Descriptions Act and False Trade Descriptions

Scenario:
John operates a second-hand car dealership. He advertises a vehicle as "fully serviced, low
mileage, and in excellent condition." A customer, Alice, buys the car based on the description,
but later discovers that the car had not been serviced recently, the odometer was tampered with,
and the engine was faulty. Alice wants to take legal action under the Trade Descriptions Act.

Questions:

1. What part of the Trade Descriptions Act has John violated, and how?
o Answer: John has violated Section 3 of the Trade Descriptions Act by providing
a false description of the car. The vehicle was advertised as "fully serviced" and
"low mileage," but these claims were untrue, making it a false trade description.
2. What possible penalties could John face under the Trade Descriptions Act?
o Answer: John could face a fine of up to 2 million Ksh, imprisonment for up to 5
years, or both, under Section 15 of the Act. His company could also be penalized
if it is shown that the false description was part of his business practices.
3. Can Alice claim damages under the Act?
o Answer: While the Trade Descriptions Act imposes penalties on the seller, it
does not provide direct compensation to Alice. However, Alice can pursue a
separate civil claim for damages under contract law for misrepresentation or
breach of contract.

Standards Act and Substandard Goods

Scenario:
ABC Manufacturing produces children's toys. One of its toy models has been reported to cause
choking hazards due to small detachable parts. Upon inspection by KEBS, it was found that the
toys did not meet the safety standards prescribed under the Standards Act.

Questions:

1. What legal issue arises under the Standards Act?

o Answer: The legal issue is that the toy produced by ABC Manufacturing does not
comply with the safety standards set by KEBS. This violates Section 9 of the
Standards Act, which requires goods to meet specific standards for quality and
safety.
2. What are the penalties ABC Manufacturing could face if found guilty of producing
substandard goods?
o Answer: Under Section 12, ABC Manufacturing could be fined up to 1 million
Ksh for the first offense, or the directors could face imprisonment for up to 12
months, or both. For continued offenses, the fines could increase to 100,000 Ksh
per day of non-compliance.
3. What additional actions could KEBS take against ABC Manufacturing?
o Answer: KEBS could order the recall of the defective toys from the market, and
potentially revoke any permits granted to ABC Manufacturing to produce toys
until they comply with the required standards.

Public Health Act and Food Safety

Scenario:
XYZ Supermarket sells a batch of frozen fish that has been stored improperly, leading to
contamination. Several customers who bought the fish fall ill with food poisoning. An
investigation reveals that the supermarket failed to maintain proper storage temperatures. The
public health authorities are now investigating under the Public Health Act.

Questions:

1. What provisions of the Public Health Act have been violated by XYZ Supermarket?
o Answer: XYZ Supermarket has violated Section 115 of the Public Health Act by
failing to store the food in safe conditions, resulting in the sale of contaminated
food. This section prohibits the sale of food that endangers public health.
2. What penalties could the supermarket face for this violation?
o Answer: XYZ Supermarket could face fines or other penalties, including the
closure of its food department, under Section 124. The fine could be up to
80,000 Ksh for selling unfit food.
3. What corrective action can the authorities require under the Public Health Act?
 o Answer: The authorities could require XYZ Supermarket to clean and disinfect
its premises under Section 28 of the Act and to implement proper food storage
measures to prevent future contamination. They could also impose a penalty for
failing to safeguard public health.

Anti-Counterfeit Act and Counterfeit Goods

Scenario:
Bright Electronics sells a batch of mobile phones branded as a popular high-end brand. Upon
inspection, the phones are found to be counterfeit. The Anti-Counterfeit Agency seizes the
phones and charges the owner, Bright, under the Anti-Counterfeit Act.

Questions:

1. What section of the Anti-Counterfeit Act has Bright Electronics violated?

o Answer: Bright Electronics has violated Section 2 of the Anti-Counterfeit Act by
selling counterfeit goods. The mobile phones were branded as a high-end product,
but they were fake, deceiving customers and infringing on intellectual property
rights.
2. What penalties could Bright Electronics face for selling counterfeit goods?
o Answer: Under Section 35, Bright Electronics could face imprisonment for up to
5 years, fines of up to 10 million Ksh, or both. Additionally, all counterfeit goods
will be confiscated and destroyed.
3. What defense might Bright Electronics raise, and is it valid?
o Answer: Bright could claim that they were unaware the phones were counterfeit.
However, under the Act, ignorance is not a defense. The company is responsible
for ensuring that the goods it sells are legitimate.
4. What further actions could the Anti-Counterfeit Agency take against Bright
Electronics?
o Answer: The Anti-Counterfeit Agency could shut down the business, seize all
counterfeit stock, and prosecute Bright under the Act for distributing fake
products. The agency could also investigate the supply chain to prevent further
counterfeiting activities.