Consumer Protection

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QUESTION: CONSIDERING ALL RELEVANT LAWS, CRITICALLY HIGHLIGHT

CONSUMER PROTECTION MEASURES WITHIN THE ICT SECTOR.

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Table of Contents

A. INTRODUCTION...............................................................................................................6

B. E-CONSUMER PROTECTION IN KENYA...................................................................6

I. Statutory framework...........................................................................................................6

i. The 2010 Constitution of Kenya.....................................................................................6

ii. The Consumer Protection Act (CPA)............................................................................6

iii. Kenya Information and Communications Act (KICA).................................................8

iv. The Competition Act (CA)...........................................................................................9

v. Data Protection Act (DAPA).......................................................................................10

vi. Kenya Information and Communications (Consumer Protection) Regulations 2010 11

II. Institutional framework...................................................................................................12

i. The Competition Authority of Kenya...........................................................................12

ii. The Communications Authority..................................................................................13

iii. Kenya Bureau of Standards........................................................................................13

iv. The Consumer Protection Advisory Committee.........................................................14

v. Communications Authority of Kenya..........................................................................14

III. Jurisprudence from Kenyan Courts................................................................................15

IV. Jurisprudence from the Communications Authority of Kenya......................................18

C. COMPARATIVE STUDY................................................................................................21

I. E-consumer protection in the United Kingdom................................................................21

i. Statutory framework.....................................................................................................21

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a) The Consumer Protection Act of 1987....................................................................21

b) Consumer Rights Act 2015......................................................................................22

c) The Data Protection Act (GDPR) of 2018...............................................................23

d) The Computer Misuse Act of 1990..........................................................................24

e) Consumer Protection from Unfair Trading Regulations 2008.................................24

f) Consumer Contracts (Information, Cancellation and Additional Charges)


Regulations 2013..........................................................................................................24

g) General product Safety Regulations 2005...............................................................25

ii. Institutional Framework...............................................................................................26

a) The Competition and Markets Authority.................................................................26

b) Trading Standards Services.....................................................................................26

c) The Information Commissioner’s Office.................................................................26

d) The Office of Communications (Ofcom).................................................................26

II. E-consumer protection in South Africa...........................................................................27

i. Statutory framework.....................................................................................................27

a) The Constitution of South Africa.............................................................................27

b) The Consumer Protection Act..................................................................................27

c) The Regulation of Interception of Communications and Provision of


Communication related Information Act, 2002 (RICA)..............................................28

d) Protection of Personal Information Act (PoPI Act).................................................28

e) Cybercrimes Act, 2020............................................................................................28

f) Films and Publications Act 1996..............................................................................28

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g) The Electronic Communications and Transactions Act (ECT Act)........................29

ii. Institutional framework................................................................................................29

a) The Independent Communications Authority of South Africa (ICASA)................29

b) The National Consumer Commission......................................................................30

iii. Jurisprudence from South African courts...................................................................30

D. CONCLUSION..................................................................................................................31

E. BIBLIOGRAPHY..............................................................................................................32

I. Statutes..............................................................................................................................32

II. Regulations......................................................................................................................33

III. Case laws........................................................................................................................33

IV. Books, journal articles, reports & online materials........................................................34

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A. INTRODUCTION

In highlighting the consumers protection measures within the ICT sector in Kenya, this paper
shall firstly lay down the relevant legal regime relating to consumer protection. Secondly, the
paper will identify the institutional framework and elaborate the institutions behooved with
the sole mandate to enforce and promote the rights of consumers in Kenya. Thirdly, the paper
shall bring out the jurisprudence on the interpretation of the consumer rights from both the
Kenyan courts and the Communication authority of Kenya. Fourthly, the paper will
incorporate selected comparative studies to draw key lessons on the legal framework,
institutional framework and jurisprudence relating to consumer protection measures in the
ICT sector. Lastly, the paper shall render a conclusion.

B. E-CONSUMER PROTECTION IN KENYA

I. Statutory framework

i. The 2010 Constitution of Kenya

The entire legal framework of e-consumer protection in Kenya is founded in Article 46 of the
2010 Constitution of Kenya. The Article applies to all private and public entities. 1 It
encapsulates the rights of all consumers in Kenya. It provides that all consumers have the
right to goods and services of reasonable quality, 2 right to the information necessary to them
to fully benefit from the goods and services,3 right to the protection of their health, safety and
economic interests4 and the right to compensation from loss or injury arising from defects in
goods and services.5 The constitution further mandates the parliament to enact legislation to
provide for consumer protection and for fair, honest and decent advertising.6

ii. The Consumer Protection Act7 (CPA)

This is an Act of Parliament to provide for the protection of the consumer, prevent unfair
trade practices in consumer transactions and to provide for matters connected with and

1
The 2010 Constitution of Kenya, Article 46 (3)
2
ibid, Article 46 (1) (a)
3
ibid, Article 46 (1) (b)
4
ibid, Article 46 (1) (c)
5
ibid, Article 46 (1) (d)
6
ibid, Article 46 (2)
7
Act No. 46 of 2012

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incidental thereto.8 It governs the protection of consumers. It defines a consumer as (a) a
person to whom particular goods or services are marketed in the ordinary course of the
supplier's business; (b) a person who has entered into a transaction with a supplier in the
ordinary course of the supplier's business, unless the transaction is exempt from the
application of this Act; (c) a user of particular goods or a recipient or beneficiary of particular
services, irrespective of whether that user, recipient or beneficiary was a party to a transaction
concerning the supply of those particular goods and services; and (d) a franchisee in terms of
a franchise agreement, to the extent applicable in terms of this Act.9

In accordance with the Constitution of Kenya, it gives consumers the right to commence legal
action on behalf of a class of persons in relation to any contract for the supply of goods and
services to the consumer.10 The Act also reiterates an implied warranty, that a supplier of
goods and services is deemed to warrant that the goods and services are of reasonably
merchantable quality.11 The Act prohibits unfair business practices such as false
representation with regard to standards, quality, grade, qualities or characteristics they do not
have and if there is unconscionable representation. 12 A representation is unconscionable if the
person making the representation knows that that the consumer is not reasonably able to
protect his interests due to disability, ignorance, illiteracy, inability to understand language;
the price grossly exceeds the price at which similar goods or services are readily available to
like consumers; that a statement of opinion is misleading and the consumer is likely to rely on
it to his or her detriment.13

The Act grants the consumer the right to terminate an agreement if the seller has engaged in
unfair practice, and seek any remedy available to them in law including suit for damages.14

It defines an internet agreement to mean a consumer agreement formed by text-based internet


communications.15 A consumer agreement is defined as an agreement between a supplier and
a consumer in which the Supplier agrees to supply goods or services for payment. 16 The

8
ibid, the long title of the Act
9
ibid, Section 2
10
CPA, Section 4
11
CPA
12
CPA, Section 15
13
CPA
14
CPA
15
CPA, Section 2
16
CPA, Section 2

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supplier must provide the e-consumer with the opportunity to accept or decline the agreement
or to correct errors before entering the contract.17

A supplier is required to deliver to a consumer who enters into an internet agreement a copy
of the agreement in writing within the prescribed period after the consumer enters into the
agreement.18 If the supplier does not disclose the information required or provide the
consumer with an express opportunity to accept or decline the agreement or to correct errors
immediately before entering into it, the consumer may terminate the agreement seven days
after receiving a copy of the agreement.19 If the supplier fails to communicate the presence of
any prohibited misrepresentation, the e-consumer may cancel the agreement thirty days after
receiving a copy of the agreement.20

iii. Kenya Information and Communications Act21 (KICA)

Part VIA of KICA concerns itself with electronic transitions. The part does not apply to any
rule or law requiring writing or signatures in (a) the creation or execution of a will; (b)
negotiable instruments; and (c) documents of title. 22 There is the established Communications
Commission whose functions are inter alia to facilitate electronic transactions by ensuring
the use of reliable electronic records, to foster the development of electronic commerce
through the use of electronic signatures23 to lend authenticity and integrity to correspondence
in any electronic medium and to develop sound frameworks to minimize the incidence of
forged electronic records and fraud in electronic commerce and other electronic
transactions.24 The commission is responsible to granting of licenses for provision of
electronic certification services.25

In the context of contract formation, unless otherwise agreed by the parties, an offer and
acceptance of an offer may be expressed by means of electronic messages thus where an
electronic message is used in the formation of a contract, the contract shall not be denied
validity or enforceability solely on the ground that an electronic message was used for the
17
CPA, Section 31
18
CPA, Section 32
19
CPA, Section 33
20
Consumer Protection Act, Section 33
21
CAP 411A of 2001
22
KICA, Section 83B (1)
23
KICA defines an ‘electronic signature’ as data in electronic form affixed to or logically associated with other
electronic data which may be used to identify the signatory in relation to the data message and to indicate the
signatory’s approval of the information contained in the data message – Section 2
24
KICA, Section 83C
25
KICA, Section 83E

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purpose.26 This provision does not however, apply to any other law that expressly requires the
formation of a contract using any other method.27

Where any law requires a signature of a person, that requirement is met in relation to an
electronic message if an advanced electronic signature is used that is as reliable as was
appropriate for the purpose for which the electronic message was generated or
communicated, in light of all the circumstances, including any relevant agreement. 28 An
advanced electronic signature affixed in such manner as may be prescribed by the Minister,
suffices to satisfy the requirement by any law, to authenticate an electronic transaction. 29 In
respect to produrement of government goods and services, electronic forms suffice to satisfy
any law that requires inter alia filing, issue, grant, receipt or payment, as the case may be.30

iv. The Competition Act31 (CA)

E-consumer protection is envisaged in part VI of CA which deals with consumer welfare.


The Act prohibits false and misleading representations. 32 It makes it an offence for a person,
in trade in connection with the supply or possible supply of goods or services or in
connection with the promotion by any means of the supply or use of goods or services, to
falsely represent that goods are of a particular standard, quality, value, grade, composition,
style or model or have had a particular history or particular previous use; services are of a
particular standard, quality, value or grade; goods are new; or a particular person has agreed
to acquire goods or services.33

CA also makes it an offence an offence for a person in trade in connection with the supply or
possible supply of goods or services to another person; or the acquisition or possible
acquisition of goods or services from another person, to engage in conduct that is, in all the
circumstances, unconscionable.34 It is also an offence for a person in trade to supply goods
that are intended to be used, or are of a kind likely to be used, by a consumer if the goods are

26
KICA, Section 83J
27
ibid
28
KICA, Section 83O
29
KICA, Section 83P
30
KICA, Section 83S (1)
31
Act No. 12 of 2010, Revised Edition 2016 [2014]
32
CA, Section 55
33
ibid
34
CA, Sections 56 & 57

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of a kind in respect of which there is a prescribed consumer product safety standard and
which do not comply with that standard.35

The Act prohibits a person to supply goods that are intended to be used, or are of a kind likely
to be used, by a consumer, being goods of a kind in respect of which a consumer product
information standard has been prescribed, unless the person has complied with that standard
in relation to those goods.36

The act also provides for the compensation of a consumer in the event of defective goods.
Where a person, in trade supplies goods manufactured by it, and such goods are found to
have a defect as a result of which an individual suffers loss or injury, such person is liable to
compensate the individual for the loss or injury suffered. 37 An individual who suffers loss or
damage may recover compensation through court action.38

v. Data Protection Act39 (DAPA)

DAPA was enacted to give effect to Article 31(c) and (d) of the Constitution; to establish the
Office of the Data Protection Commissioner; to make provision for the regulation of the
processing of personal data; to provide for the rights of data subjects and obligations of data
controllers and processors; and for connected purposes.40 E-consumer protection under
DAPA is envisaged under the diverse rights of data subjects and obligations of data
controllers and data processors. According to the Act, a data subject is an identified or
identifiable natural person who is the subject of personal data. 41 Personal data means any
information relating to an identified or identifiable natural person.42

A data subject has the right to be informed of the use to which their personal data is to be put;
to access their personal data in custody of data controller or data processor; to object to the
processing of all or part of their personal data; to correction of false or misleading data; and

35
CA, Section 59
36
CA. Section 60 (1)
37
CA, Section 64 (1)
38
CA, Section 64 (2)
39
Act No. 24 of 2019
40
Long title of DAPA
41
DAPA, Section 2
42
DAPA, Section 2

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to deletion of false or misleading data about them. 43 A data controller44 or data processor45 is
mandated to collect personal data directly from a data subject.46 Exemptions to this rule are
where the data is contained in a public record; the data subject has deliberately made the data
public; the data subject has consented to the collection from another source; the data subject
has an incapacity, the guardian appointed has consented to the collection from another
source; or the collection from another source would not prejudice the interests of the data
subject.47

A data subject may withdraw consent to processing of their personal data for a specific
purpose at any time,48 although the withdrawal of such consent does not affect the lawfulness
of processing based on prior consent before its withdrawal. 49 A data subject has a right to
object to the processing of their personal data, unless the data controller or data processor
demonstrates compelling legitimate interest for the processing which overrides the data
subject's interests, or for the establishment, exercise or defence of a legal claim. 50 DAPA
prohibits the processing of personal data relating to a child by a data controller or data
processor unless consent is given by the child's parent or guardian; and the processing is in
such a manner that protects and advances the rights and best interests of the child.51

DAPA prohibits the usage of personal information for commercial purposes unless the person
using it has sought and obtained express consent from a data subject or is authorised to do so
under any written law and the data subject has been informed of such use when collecting the
data from the data subject.52 A data controller or data processor that uses personal data for
commercial purposes is mandated, where possible, to anonymize the data in such a manner as
to ensure that the data subject is no longer identifiable.53

43
DAPA, Section 26
44
“Data controller” means a natural or legal person, public authority, agency or other body which, alone or
jointly with others, determines the purpose and means of processing of personal data – DAPA, Section 2
45
“Data processor” means a natural or legal person, public authority, agency or other body which processes
personal data on behalf of the data controller – DAPA, Section 2
46
DAPA, Section 28 (1)
47
DAPA, Section 28 (2)
48
DAPA, Section 32 (1)
49
DAPA, Section 32 (2)
50
DAPA, Section 36
51
DAPA, Section 33 (1)
52
DAPA, Section 37 (1)
53
DAPA, Section 37 (2)

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vi. Kenya Information and Communications (Consumer Protection) Regulations 2010

These regulations apply to service providers - any person in Kenya who offers on a
commercial basis, the sale, hire or exchange of goods or services through an electronic
transaction.54 Objectives of the regulations include inter alia to enable and facilitate
electronic transactions and electronic commerce for the purpose of promoting confidence in
respect of electronic commerce and to ensure electronic commerce conform to the highest
international standards.55

Some of the consumer rights under the regulations include the right to receive clear and
complete information about rates, terms and conditions for products and services, protection
from unfair trade practices including misleading advertising and right to personal privacy and
protection against unauthorized use of personal information. 56 The regulations prohibit
sending of unsolicited commercial communication to consumers without providing the
consumers with the option to cancel their subscription or providing the consumer with the
particulars to identify the source from which their personal information was obtained.57

The regulations require that when a person makes an order for goods or services by electronic
means, the supplier shall execute the order within thirty days, failure to which the consumer
may cancel the order after giving written notice of seven days.58

II. Institutional framework

i. The Competition Authority of Kenya

Competition law promotes a range of choices in services and goods through the protection of
competition by dealing with distortions such as price fixing or exclusionary practices in the
market which is supposed to be driven by the interaction between supply and demand.59

This body is established under the Competition Act, No. 12 of 2010.It deals extensively with
consumer protection matters by seeking to restrict consumer protection offences like

54
Kenya Information and Communications (Consumer Protection) Regulations 2010
55
ibid
56
Kenya Information and Communications (Consumer Protection) Regulations 2010, Section 3(1)
57
Kenya Information and Communications (Consumer Protection) Regulations 2010
58
Kenya Information and Communications (Consumer Protection) Regulations 2010, Section 9
59
Jeroen Kraijenbrink, JC Spender, ‘The resource-based view: A review and assessment of its critiques
University of Twente’ (2009)

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deceptive advertising which distort the demand side because they create the impression that a
product or service is worth more than it really is.60

It is tasked with the duty to promote and safeguard competition in the national economy and
to protect consumers from unfair and misleading market conduct. It exercises this mandate by
enforcing the Act, receiving and investigating complaints from legal and consumer bodies,
investigating impediments to competition and in the economy or in particular sectors among
others.61 The Competition Authority has a dual role to enforce competition and consumer
laws because as seen in the foregoing, both laws complement each other.

It specifically investigates and advises on matters relating to misleading and false


representations, unconscionable conduct, and supply of safe and unsafe, defective or
unsuitable products, including failure by firms to observe public notices issued in respect of
unsafe products, and prescribed product information and safety standards.62

This Division handles/ resolves cases brought by consumers and consumer lobby groups
related to false and misleading representation and defective goods.63 Any person may lodge
complaint with the Authority by filling in Complaint Form available at the Authority’s
website.

It collaborates with KEBS to clarify whether claims of the quality of a product are false. 64 For
instance, in the case of Mabati Rolling Mills, where they claimed that their product Dumu
Zas, a type of galvanized roofing sheet was four times durable than ordinary roofing sheets,
the Authority contacted KEBS to verify this fact in order to establish if the advertising was
misleading.65

ii. The Communications Authority

The Kenya Communications Act 1998 vests the Communication Authority of Kenya with
adjudicative power in the discharge of its statutory mandate of licensing and regulating
telecommunications, radio communication and postal services within the country. The
communications Authority adjudicates any dispute between the consumer and the service
60
supra, The Competition Act, 2010, Section 5
61
ibid
62
supra, The Competition Act, 2010, Section 5 - 9
63
David J Teece, Gary Pisano, Amy Shuen, ‘Dynamic capabilities strategic management, models of strategy
emphasizing resource based perspective’ (2005) pg. 513
64
T supra, The Competition Act, 2010, Section 6
65
David J Teece, Gary Pisano, Amy Shuen, ‘Dynamic capabilities strategic management, models of strategy
emphasizing resource based perspective’ (2005) pg. 513

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provider regarding service agreements.66 The decision of the Authority prevails over the
provisions in the subscriber service agreement.67

iii. Kenya Bureau of Standards

Kenya Bureau of Standards is statutory organization in Kenya, established by the Standards


Act Cap 496. It was tasked with the duty to ensure that only quality goods gain entry into the
Country,68 as specified by the Standards Act Cap 496, Laws of Kenya and the Quality
Imports Order No. 78 of July 2005 through promotion of standardization of the specification
of commodities, provision of testing services for locally manufactured and imported. It offers
the necessary protection to Kenya’s consumers in safety, health and environmental matters.69

KEBS is the first line examiner of goods for sale in the Country and an illustration of
government efforts to ensure that only safe and good quality goods are sold to consumers in
the Country. It has implemented guidelines called the Pre- Export Verification of Conformity
(PVoC) where suppliers must ensure that goods meet quality requirements and that the
consignments are accompanied by a Kenya PVoC Certificate of Conformity (COC) from
authorized PVoC Agents. These regulations are of importance to online Kenyan consumer as
they ensure that reject’ items are not shipped, and the online agreement can terminate.

iv. The Consumer Protection Advisory Committee

The Consumer Protection Advisory Committee was established under the Consumer
Protection Act.70 It is in charge of among other things, advising consumers of their rights,
investigating complaints and accrediting consumer organizations.71

v. Communications Authority of Kenya

In ICT, the Communications Authority of Kenya is the sectoral authority on consumer


protection. It is mandated to oversee the players in the telecom market while protecting
consumer rights.72 It receives complaints by any person of any breach of fair competition,

66
David Souter and Monica Kerretts Makau, ‘Internet governance in Kenya an assessment for the internet
society’ (2012) pg. 3.
67
supra, KICA
68
Standards Act Cap 496, s10
69
ibid
70
supra, Competition Act,2012
71
supra, Competition Act, 2012, Section 11
72
supra, KICA, Section 1

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investigates the claims and hears representations from both licensee and the persons affected
by the contravention.73

Where it makes a decision that a licensee has engaged in anti- competitive conduct, it may
impose remedial measures to redress the offence. In 2015, the Communications Authority
tabled draft regulations called the Fair Competition and Equality of Treatment regulations,
which sought to declare a dominant player in telecommunications, if it controlled more than
50% of the telecoms market.

It deleted a Section 3A of the Kenya Information and Communication (Amendment) Act


2013, that requires it to prove abuse of its dominance before declaring it dominant. 74
Declaration of dominance has implications on such telecom service provider, as it is required
to file tariffs, rates, terms, and conditions of interconnection with the Commission. This
amendment provides that the declaration is to be made in consultation with the Competition
Authority of Kenya.

III. Jurisprudence from Kenyan Courts

i. James Kuria V Attorney General & 3 Others [2018] eKLR

The petitioner was a pre-paid Safaricom mobile phone subscriber. He claimed that on 25th
May 2016 he received an unsolicited text message from Safaricom with words to the effect
"save up to 85% on your local calls, SMS & internet by subscribing to the advantage plus
prepay plans. Dial ... to choose your preferred bundle."

He claimed that he construed the message to mean that he would save 85% on all calls, SMS
and internet and upon reading the text message, he subscribed to the promotion and
immediately Safaricom deducted KES. 4,999/= from his M-Pesa account. Shortly after,
Safaricom notified him that the expiry date for the subscription was 24th June 2016

The petitioner claimed that the defendant neglected to protect his consumer rights and the
crux of his complaint is that the information was not disclosed to him prior to the
subscription. Further, he stated that the initial message was misleading and or contained

ibid, Section 3
73

Head, M., and Hassanein, K, ‘Trust in e-commerce: evaluating the impact of third-party seals,” (2002) (3),
74

Quarterly journal of electronic commerce pg. 307-325.

14
material non-disclosure, hence being in violation of Article 46 of the Constitution of Kenya
and the Consumer Protection Act75.

Relying on the South African case of Incorrect Price Advertised: Price not binding (Case 1)
where it was held that:

‘when a supplier advertises goods or services to the public by some methods of mass
communication, it is generally considered to be an invitation to treat/ to do business/a
mere puff. Depending on the wording of the advertisement, it may amount to a
binding offer ripening to a contract when one accepts it’.

In interpreting the Consumer Protection Act76 the court referred to the principles


enunciated by the South African Court in Natal Joint Municipal Pension Fund vs Endumeni
Municipality77, it considered the words used in the light of all relevant and admissible
context, including the circumstances in which the legislation came into being. Furthermore,
‘...a sensible meaning is to be preferred to one that leads to insensible or un-businesslike
results78.”  and that that the interpretative process involves ascertaining the intention of the
legislature79.

The court in this case held that the advertisement under complaint had not been demonstrated
to be materially false or misleading and was an invitation to treat. Mativo J stated that there
was nothing to show that the 4th respondent or any of the respondents acted illegally or in
breach of the petitioner’s consumers right and the petitioner ought to have utilized the dispute
resolution mechanism provided by the statute and only approach the high court if aggrieved
by the decision of the Appeals Tribunal.

ii. Kenya Human Rights Commission v Communications Authority of Kenya & 4 others
[2018] eKLR80

The petition challenged the intended introduction of a device by the first Respondent (the
Communications Authority of Kenya) to be installed in the networks of the third, fourth and

75
Act No. 46 of 2012
76
ibid.
77
Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)
para 18.
78
ibid.
79
Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd [2015] ZASCA 111; 2016 (1) 518 para 27.
80
Constitutional petition 86 of 2017.

15
fifth Respondents who are mobile network providers offering various services to their
customers, among them mobile telephone, data, internet, and mobile money transfers.

The crux of the petition is that the said device has the capacity of accessing their subscribers
information, which can only be accessed in the manner provided under the law, hence a
violation of their subscribers constitutionally guaranteed right to privacy and right to
consumer protection as encapsulated in Article 46 of the Constitution.

While determining the issue on whether the DMS system threatened the Right to privacy of
the subscribers of the third, fourth and fifth Respondents'  or their Consumer Rights, the court

While answering the question as to whether the consumer rights of the third, fourth and fifth
respondents’ subscribers as - envisaged in Article 46 of the Constitution 81, were violated, the
court relied on the South African case of Natal Joint Municipal Pension Fund v Endumeni
Municipality82 and how the trial judge interpreted their Consumer Protection Act83.

The court held that seeing as there was insufficient public participation prior to the adoption
of the device (thus being in violation of Article 4684) with the first, second and third interested
parties and further the subscribers of the first, second and third Interested Parties were not
engaged at all in the public consultations, it was null and void for all purposes.

The court gave orders to the effect that the CAK was to craft a meaningful programme of
public participation prior to the launch of the system to ensure the subscribers’ Consumer
Protection rights were not infringed upon.

iii. Leonard Otieno V Airtel Kenya Limited [2018] eKLR85

The petitioner brought the petition against Airtel Kenya. He claimed that during the month of
March 2017, he experienced repeated network disruptions, effectively barring him from
communicating with friends, family and professional colleagues, and in ability to access
Airtel Money He further claimed that the Respondent advised him to re-start his phone but
this did not work. Also, he was directed to swap his card, but it only worked for one week,
and a second SIM swap equally failed.

81
Constitution of Kenya, 2010.
82
supra, Natal Joint Municipal Pension Fund v Endumeni Municipality
83
Consumer Protection Act 68 of 2008 of South Africa
84
supra, 2010 Constitution of Kenya
85
Petition 218 of 2017.

16
The Petitioner claimed that he subsequently received in succession text messages stating
"Your SIM is successfully updated 21/03/2017, 23.02". He averred that he was prompted by
a text message to follow instructions to set up his new PIN which he did, but his phone could
not access the network. His line was restored on 25th March 2017, but on 27th March 2017
he discovered that KES. 10,000/= was missing from his Airtel Money Account. Even after
the reconnection, the line went off again on 14th April 2017 and was off as at the date of
filing the Petition. Further, he had been receiving notices informing him that he borrowed
Ksh.1,170/= from "KOPACASH" a Platform operated by the Respondent.

The Petitioner invited the Court to find and hold that his rights under Articles 46 and 31 of
the Constitution were violated and an award of general damages for the alleged infringement.

Following consideration of the facts in the petition, the court was of the opinion that the
mechanism established under the act and regulations were sufficient to afford the petitioner
an effective remedy since the act has ensured that consumers have access to fast, effective ad
economical redress for disputes and don’t necessarily have to resort to litigation.

Premising the decision on the general principle that whoever alleges must prove, the court
held that the petitioner did not prove to a sufficient extent that the defendant had violated his
consumer rights.

The court insisted that the petitioner ought to have utilized the dispute resolution mechanism
provided under the Consumer Protection Act and only approach the court if aggrieved by the
decision of the Appeals Tribunal.

IV. Jurisprudence from the Communications Authority of Kenya

The competition authority of Kenya being an institution that governs e-consumer protection
has the mandate to hear the cases as they have a tribunal that hears these cases and renders an
opinion. The courts in the cases described above have found it necessary to them seeking to
file cases of this nature to first finish all other ways of solving such disputes before opting for
litigation. This included the Competition Authority of Kenya (CAK) which is cost-effective
and not time-consuming compared to litigation. The authority renders decisions and enforces
them. They offer an advisory opinion as part of their role in the protection of consumers in
the digital/online sector.86

86
Competition Authority of Kenya, Protecting consumer rights accessed at https://cak.go.ke/

17
The CAK has the authority under section 55 to section 70 of the competition authority Act to
investigate complaints related to false or misleading representations, unconscionable conduct
as well as supply of unsafe, defective, and unsuitable goods. This department also
investigates undertakings that fail to comply with the prescribed consumer product safety
standards and prescribed product information standards and promotes the creation of
consumer bodies and the standards they should adhere to, working with consumer welfare,
and sensitizing consumers about their rights and obligations under the Act.87

The preamble of the competition act states that it is an act of parliament that is meant to
promote and safeguard competition in the national economy and as well as to protect
consumers from unfair and misleading market conduct and to provide for the establishment,
powers, and functions of the competition authority and the competition tribunal that is
majorly involved in settling disputes brought under the Act.

E-services that are offered online by the competition authority include the ability to file a
consumer complaint. Most of the complaints are based on section 55 88 which states that a
person commits an offense when they make a false representation regarding the price, the
availability of the goods, their place of origin, warranty, and the existence of the goods, and
services. Section 56 89
discusses unconscionable conduct that a supplier can involve
themselves in which is termed as an offense. Cases on the safety standard of products and
information standards are common before the CAK.

These cases are discussed below as follows:

Jamii Telkom v Runda associates, this is a 2012 case where jamii telecom approached the
authority with complaints that they were denied access to install their fiber network cables in
that region. The matter was resolved by the authority and Jamii was allowed entry.90

In the Marissella v Zuku 91


.The case was brought under sections 56(3) and (4) of the
consumer protection Act on unconscionable conduct on the part of Zuku. The complainant
alleged that Zuku had changed her monthly package without notifying her. As a result, she

87
supra, the Competition Act, Section 1
88
supra, the competition Act
89
ibid
90
Competition Authority annual report 2012/2013 accessed at https://cak.go.ke/sites/default/files/annual
91
Sampled cases by the Competition authority of Kenya accessed at
https://cak.go.ke/sites/default/files/guidelines/consumer protection/Sampled%20Consumer%20Protection
%20Cases.pdf

18
was required to pay more money than usual to continue enjoying her viewing. Zuku was held
liable and ordered to refund the complainant as well as change her package accordingly.

In another case against Zuku, Ms. Winrose v Zuku, where the complainant complained of
unexplained frequent internet downtimes which she said were more than the average uptimes.
The court invoked sections 56(3) and (4) on unconscionable conduct. Zuku offered to resolve
the matter, however, the consumer unsubscribed.

In the case of Mr. Stephen v Zuku92, Mr. Stephen complained that there was frequent
downtime of the Zuku network in his area. He complained that there was unconscionable
conduct from the service provider that is contrary to section 56(1)(2)(a) of the competition
authority Act on unconscionable conduct from a supplier to a consumer. The authority
intervened in the matter and resolved it to the customer’s satisfaction rectifying the mistake
that was being done by the service provider.

In the case, Mr. Erick v GOTV93 the complainant has had complaints that he had issues with
poor internet connectivity from GOTV that was not being addressed no matter the many
times she had made the complaints to the telecommunications company. He also complained
that he had overpaid 300 and wasn’t being refunded. The matter was brought under section
55 of the Act on false and misleading representation. It was held that the consumer had the
right to have his complaints addressed and the matter was solved to the consumer’s
satisfaction.

In the case of Edwin v Jumia 94


where the complainant alleged that Jumia negligently
indicated that they would grant a Kshs 500 discount for the purchase of a phone. He made the
purchase and their system either by default or design failed to deduct the discount thereby
resulting in him paying the full amount for the phone. Jumia was unwilling to refund him.
Here the case was decided based on sections 55(a) and (c) of the Act, the authority ordered
Jumia to refund the complainant. Jumia issued him with a voucher worth 500 that would
enable him to make another purchase.

In another case against Jumia Mr. David ordered a Samsung galaxy S6 but he received a
Samsung galaxy S5. He complained but was informed that he had already broken the seal that
92
ibid
93
ibid
94
Sampled cases by the Competition authority of Kenya accessed s at
https://cak.go.ke/sites/default/files/guidelines/consumerprotection/Sampled%20Consumer%20Protection
%20Cases.pdf

19
was in a foreign language. The authority ordered Jumia to refund him fully which Jumia did
and apologized. Section 55(a) (i) on false or misleading representations and section 56(2) on
unconscionable conduct were invoked.

In the case of Tom v Airtel Networks Limited 95


the complainant alleged that Airtel Kenya
disconnected his line for unknown reasons and refused to acknowledge and address his
complaints. The Matter was brought under section 56(d) of the Act which is unconscionable
conduct. It was held that the authority intervened and Airtel redressed the matter by restoring
the services.

In another case of Mr. Nehemy v Safaricom Nanyuki,96 the complainant alleged that he
bought a Lenovo phone from Safaricom shop Nanyuki which was defective and they were
taking too long to resolve the matter. The authority intervened and as a result, the defendant
issued the complainant with a new phone. The authority invoked section 55(a)(i) on false
misleading representation and section 64 of the act on defective conduct.

Safaricom has been involved further in the case of Meshack 97 where the complainant brought
a matter before the CAK alleging that he has 10, 000 and over 200 Bonga points which
mysteriously disappeared from his mobile phone and were transferred to a strange KCB
account without the user being notified or made aware. The authority intervened to carry out
investigations and they decided that this was a fraud-related case and Safaricom intervened to
compensate the user.

The Competition Authority has been efficient in enforcing e- consumer protection laws. AS
demonstrated above they have intervened on various matters to protects the users/ buyers
from being extorted by the supplier or even being provided with poor services.

C. COMPARATIVE STUDY

I. E-consumer protection in the United Kingdom

The comparative analysis of the United Kingdom, shall look into, the legislative and
institutional framework of consumer protection.

95
ibid
96
ibid
97
Meshack v Safaricom Limited, 2018.

20
i. Statutory framework

a) The Consumer Protection Act of 1987

This Act gives consumers the right to claim compensation if a defective product causes death,
damage or injury. Death, damage and injury is what amounts to be a ‘risk’ as defined by
Section 3.98

Under this Act, a consumer may make such a claim for anything that can be packaged and
sold. Section 3 provides that a product is defective, if it is not what you would reasonably
expect it to be.99 The following factors will be taken into consideration when assessing
product safety100; (a) the purpose of the product and how it was marketed, (b) the use of any
marks, (c) instructions and warnings, (d) the reasonable expected use of the product and (e)
the time of supply.

Section 4 provides for circumstances whereby protection will not be granted 101; (a) where the
product was never supplied, (b) where the product was not supplied in the course of business,
(c) where there is a defect which is attributable to compliance with did not exist at the
relevant time, (d) where the defect could not have been discovered according to the
technology available ate time of supply and (e) where the product formed part of a
subsequent product that was defective.

b) Consumer Rights Act 2015

This Act sets out consumer rights when buying products, services and digital content. Section
2 provides for the persons that are required to comply with the Act, such persons include
traders, government departments as well as local authorities and government authorities.102

It provides for the quality requirements to be met by goods, services and digital content.
Goods refer to any tangible and movable items. 103 Services refer to contracts for services and

98
The Consumer Protection Act, 1987, Section 3
99
ibid
100
Nigel Parr & Christopher Eberhardt, Consumer Protection Laws and Regulations UK 2022-2023, (2022),
<https://iclg.com/practice-areas/consumer-protection-laws-and-regulations/united-kingdom> accessed on
27/03/2023
101
The Consumer Protection Act, Section 4
102
The Consumer Rights Act, 2015, Section 2
103
The Consumer Rights Act, 2015 Section 2 (8)

21
it does not include a contract of employment or apprenticeship. 104 Digital content refers to
data that is produced and supplied in digital form.105

These quality requirements are; (i) should be fit for purpose,106 (ii) should be as described,107
and (iii) should be of satisfactory quality.108

Satisfactory quality is determined by taking into account; (a) the description of the goods, (b)
the price or other consideration for the goods, (c) all other relevant circumstances 109 including
public statements, advertising and labelling as provided by Section 9(2)and 34(2).

In relation to contracts for services, the Act provides that; (i) the service must be performed
with reasonable care and skill,110 (ii) if no price had been prior agreed upon, the consumer
must pay a reasonable price and no more, 111 and (iii) if the time for performance had not been
agreed upon prior, the trader must perform the service within a reasonable time.112

This Act also sets outs the rights that consumers possess. Such rights include; the right to a
refund, the right to repair and replacement114 and the right to challenge unfair contractual
113

terms.115Section 62 defines unfair contract terms116, it states that a term or notice is unfair if
contrary to the requirement of good faith, it causes a significant imbalance in the parties’
rights and obligations under the contract to the detriment of the consumer.

c) The Data Protection Act (GDPR) of 2018

This Act regulates the processing of personal data. 117 Personal data is data that contains
information that relates to names, contacts, addresses etc. This Act provides that before
personal data is collected, used or disclosed, data subjects must issue informed consent.118

104
ibid, Section 48
105
ibid, Section 2 (9)
106
ibid, Section 10
107
ibid, Section 11
108
ibid, Section 9
109
ibid, Section 9 (2) and 34 (2)
110
ibid, Section 49
111
ibid, Section 51
112
ibid, Section 52
113
ibid, Section 24
114
ibid, Section 23
115
ibid, Section 64
116
ibid, Section 62
117
The Data Protection Act, 2018, Section 2
118
ibid, Section 8

22
The Act also provides for the rights of data subjects. Such rights include; the right to object
use of data for profiling and direct marketing 119, the right to rectify data120, the right to erasure
which is also referred to as the right to be forgotten.121

d) The Computer Misuse Act of 1990

The Act aims to secure computer material against unauthorized access and or modification. 122
It prevents people from accessing information that they do not have the right to use, e.g.
hacking without permission is illegal.

However, a motion was made on 19th April 2022, in the House of Commons, to review the
Act, so that it can be useful in tackling emerging trends.

e) Consumer Protection from Unfair Trading Regulations 2008

These regulations ban unfair commercial practices. 123 It also bans misleading actions 124,
misleading omissions125 and aggressive practices.126 Some of the banned practices include;
bait advertising, bait & switch, false free offers and aggressive doorstep selling.127

f) Consumer Contracts (Information, Cancellation and Additional Charges) Regulations


2013

These regulations provide for the protection of consumers, specifically when shopping
online. These regulations apply to goods, services and digital downloads.128 These regulations
provide consumers with several rights.

The right to cancel129, this right is operative from the moment of placing the order till
fourteen days, once fourteen days have elapsed, one cannot exercise the right to cancel. The
right to a refund130, this right is operative within fourteen days from the date of purchase,

119
ibid, Section 99
120
ibid, Section 100
121
ibid
122
The Computer Misuse Act, 1990, Section 1
123
Consumer Protection from Unfair Trading Regulations, 2008, regulation 3
124
ibid, regulation 5
125
ibid, regulation 6
126
ibid, regulation 7
127
ibid, Schedule 1
128
Consumer Contracts (Information, Cancelation and Additional Charges) Regulations, 2013, regulation 7
129
ibid, regulation 30
130
ibid, regulation 34

23
there is the obligation on the consumer to furnish evidence of purchase, and this is evinced
through receipts.

The right to return faulty goods, once a consumer receives faulty goods, they have the right to
return them without incurring delivery fees.131 The right not to be charged for items in pre-
ticked boxes132. As well as the right not to be charged excessive call fees when calling
helpline phone numbers.133

g) General product Safety Regulations 2005

Regulation 2 defines a product as safe if it does not present a risk or if it only presents a
minimal risk.134 The following factors would be taken into consideration; (a) product
characteristics; composition, packaging, assembly instructions, installation and maintenance,
(b) effect on other products; where it would be used with other products, (c) product
presentation; labelling, warnings and instructions and (d) the categories of consumers at risk
when using the product e.g. children and the elderly.

Regulation 5 provides that producers cannot place, or offer to place, a product on the market
or supply a product, unless the product is safe.135

Regulation 7 provides the obligation for producers to provide instructions and warnings to
consumers.136 However, the mere issuance of a warning would not exempt them from other
obligations

Regulation 8 provides for the obligation on distributors not to supply or agree to supply
dangerous products.137

Regulation 9 provides that if producers or distributors become aware of a product posing a


risk to consumers, they must notify an enforcement authority, in writing, outlining the action
taken to prevent such a risk.138

131
ibid, regulation 35
132
ibid, regulation 37
133
ibid, regulation 41
134
General product Safety Regulations, 2005, regulation 2
135
ibid, regulation 5
136
ibid, regulation 7
137
ibid, regulation 8
138
ibid, regulation 9

24
Regulation 29 provides that whereby a producer or distributor can show that all reasonable
steps were taken and all due diligence was exercised in the supply of a product, such can be
used as a defence.139

ii. Institutional Framework

a) The Competition and Markets Authority

The authority has several functions so as to ensure consumer protection. Primarily, its major
function is to ensure that competitions and markets work in favour of consumers. 140 It
investigates markets where consumer protections issues may arise. 141 It takes action against
businesses that take part in cartels & anti-competitive behavior. 142 It protects consumers from
unfair trading practices.143 It carries out regulatory appeals in issues like price controls.144

b) Trading Standards Services

Its overall function is to promote and maintain a fair trading environment. It protects
consumers through enforcing weights and measures legislations. This is achieved by ensuring
labels are correct and not misleading.

It is accountable to local authorities and it is responsible for enforcement at the local level. It
can also have responsibility at a regional and national level, however, such would be under
the control of the National Trading Standard Board in England and Wales.145

c) The Information Commissioner’s Office

This is the regulatory body in charge of data protection. 146 It monitors unsolicited electronic
marketing materials. It is the body in charge of handling complaints on data protection
infringements. It has the power not only to listen to complaints but to issue fines as well.

139
ibid, regulation 29
140
Competition and Markets Authority, ‘Our Responsibilities’,
<https://www.gov.uk/government/organisations/competition-and-markets-authority/about#our-responsibilities >
accessed 27/03/2023
141
ibid
142
ibid
143
ibid
144
ibid
145
supra, Consumer Protection Laws and Regulations UK
146
The Information Commissioner’s Office, ‘Data Protection’,
<https://www.gov.uk/government/organisations/information-commissioner-s-office > accessed on 27/03/2023

25
d) The Office of Communications (Ofcom)

Ofcom is the regulator for the communications services in the UK.147 It is in charge of
broadband, mobile services, the universal postal service, airwaves used by wireless devices. It
helps to protect people from getting scammed and protects users from bad practices. It
registers complaints, however, it lacks the mandate to resolve complaints on broadband and
mobile phones, such are referred to alternative dispute resolution services.

II. E-consumer protection in South Africa

The initiative taken to protect the electronic consumers in South Africa has been extensive
and entails the following: Improving the cybersecurity to protect personal information,
provide appropriate protection and legal certainty for consumers in the digital space and
strengthening the position of the consumer by trying to equalize their relationship with the
producers.148

Within a larger mandate of reviewing the key global trends concerning consumer protection
in the ICT sector, South Africa seemed like an apt comparison. It was chosen for the purpose
of the study since it leads the continent in terms of consumer protection regulations. 149 The
aim is to review the country’s legal and institutional frameworks and analyze the current
regulations concerning ICT and consumer protection. The jurisprudence from the courts will
also be discussed.

i. Statutory framework

The following provisions address the consumer law in the digital era.

a) The Constitution of South Africa

Section 14 of the Constitution of the Republic of South Africa 150 affirms the right to privacy
including the rights to not have the privacy of their communications infringed.

147
Office of Communications, ‘What is Ofcom’, <https://ww.ofcom.org.uk/about-ofcomlwhat-is-ogcom >
accessed on 27/03/2023
148
Broc Rademan et al. ‘The State of ICT in South Africa’ (2018) International Development Research Centre,
Policy Paper no. 5, Series 5: After Access.
149
‘South Africa’s Performance on the IDI’s sub-indicators’ The International Telecommunications Union
(ITU) ICT Development Index (IDI) Report, 2017.
150
The Constitution of South Africa, 1996 (No. 108 of 1996)

26
b) The Consumer Protection Act

The Consumer Protection Act, 2008 sets out the minimum requirement for adequate
protection of the consumers. Regulators are required to promote and safeguard consumer
interests. The Act has a huge impact on the interactions of consumers and suppliers. The
Consumer Protection Act Regulations151 protects online consumers by limiting contact for
direct marketing purposes and improper information disclosure.152

c) The Regulation of Interception of Communications and Provision of Communication


related Information Act, 2002 (RICA)

RICA sets out a lawful intercept regime and details the obligations of electronic
communications service providers in relation to cooperating with law enforcement authorities
and the storage of traffic data. Electronic communication service providers are required to
verify the identity of the consumer prior to providing services. It sets out the collaboration of
law enforcement with service providers when releasing customer data. The procedure states
that the service providers must confirm the identity of the customer before providing the
service. It also provides for the retention of consumer information and data by the service
providers for three years.153

d) Protection of Personal Information Act (PoPI Act)

The legislation aims to protect the personal information processed by both private and public
bodies.154 It is fundamental in protecting against data breaches and theft of personal
information. It regulates against invasive marketing techniques that intrude on the consumers
personal information for example cold calling.155

e) Cybercrimes Act, 2020

It makes cybercrimes a criminal offense under South African law. It protects consumers by
placing an obligation to report cybercrimes committed via networks or services 156, the holders
of ECNS, ECN licenses, must report to the South African police services. Clear and effective
sanction provisions to correct operators’ inappropriate behavior.
151
The Regulations are made under Section 120 (1) of the Consumer Protection Act, 2008.
152
Regulation 31 of the Consumer Protection Act Regulations No. 34180.
153
Section 30 of the RICA Act.
154
Protection of Personal Information Act, Act 4 of 2013.
155
ibid Section 69.
156
The Cybercrimes Act, 2020, Section 54

27
f) Films and Publications Act 1996

It protects consumers in the digital space by providing that internet service providers must
ensure that their services are not abused to disseminate child pornography.  An amendment to
the Films and Publications Act in October 2019157, effective from 1 March 2022 imposed new
obligations on persons providing child orientated services via mobile cellular phones or the
internet and controversially places an obligation on service providers to prohibit the
distribution through any medium of any film, game or publication, which amounts to
propaganda for war, incites imminent violence or advocates hate speech.158

g) The Electronic Communications and Transactions Act (ECT Act)

It regulates electronic communications with the interest of the public by use of a neutral
licensing framework. Among the provisions of the Act, consumer protection is broadly
discussed. The ECT Act makes liable for damages persons who caches data, provide hosting
services or are conduit unless they adhere to the Act.159

ii. Institutional framework

The sound institutional design in SA upholds consumer protection.

a) The Independent Communications Authority of South Africa (ICASA)

The Independent Communications Authority of South Africa (ICASA) is established under


the Electronic and Communications Act where its respective roles are delineated. It is an
independent authority that is subject only to the South African Constitution and can assume
the role of consumer protection without fear and prejudice.160 It is responsible for compliance,
monitoring, complaints, sanctions etc. The institution is required to generate improvements
in accessing the digital environment and making it more conducive for consumers. The
ICASA Compliance Procedure Manual Regulations161 provides thorough treatment and codes
of conduct for customers and persons with disabilities.162

157
Gazette No 42743, Government Gazette 3rd October 2019.
158
ibid Regulation 18H and 24G.
159
The Electronic Communications and Transactions Act, No 25 of 2002.
160
Telecommunication Laws of the World; South Africa, DLA Piper (November 2022) < Key
telecommunications laws, regulations and policies in South Africa - DLA Piper Telecommunications Laws of
the World (dlapiperintelligence.com)>
161
ICASA Compliance Procedure Manual Regulations, 2011 Gazette No: 34863
162
ibid, Form 7C and 13.

28
The ICASA Act also provides the powers and functions of the institution and its composition.
It provides for the formation of a Complaints and Compliance Commission that is tasked with
dealing with any complaints lodged to ICASA. Pursuant to the act the prescribed roles are
consumer protection, it regulates broadcasting, electronic communication for the public
benefit.

The primary imperative is the public benefit regarding electronic communications,


broadcasting and other ICT related services.

b) The National Consumer Commission

This institution is established under section 85 of the Consumer Protection Act. 163 It is tasked
with promoting and protecting the interest of consumers. The Consumer Protection Act also
assigned it the functions of improving the standards of consumer information and to establish
national norms relating to consumer protection in the ICT sector. The NCC is responsible for
evaluating court decisions and ADR schemes in a bid to expand the dispute resolution
platform for dealing with disputes between the consumer and suppliers.164

iii. Jurisprudence from South African courts

The influence of ICT on consumer protection has traversed to the courts.

Amabhungane Centre for Investigative Journalism NPC v Minister of Justice and


Correctional Services165

The case was called upon to determine the constitutionality of surveilnace of individuals and
interception of private communications. The Constitutional Court declared the use of
surveillance legislation and the bulk interception of communications as unjustifiable
limitation to the right to privacy and unconstitutional. It brought an end to the secret state
surveillance that was conducted under the RICA Act.

Eskom Holdings Limited v. Derek Anthony Halstead Cleak166

163
The Consumer Protection Act No 68 of 2008.
164
National Consumer Commission, Annual Performance Plan 2020/2021 NCC-Revised-APP-2020-2021-30-
March-2021.pdf (thedtic.gov.za)
165
Amabhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services
(25,978/2017) [2019] ZAGPPHC 384 (Amabhungane).
166
Eskom Holdings Limited v Halstead-Cleak ZASCA 150 (30 September 2016) Case No: 599/2015.

29
The Supreme Court of Appeal held that Section 61 of the Consumer Protection Act 68 of
2008 does not create strict liability on the part of a supplier of electricity if the plaintiff is not
a consumer.

ETV (PTY) Limited and others v Minister of Communication and Digital Technologies and
11 others.167

The right of information for poor consumers was protected. The court decided to strike down
the government’s plan to end old-style television broadcasting to protect the impoverished
South Africans. South Africa is a member of the International Telecommunications Union
and had resolved to migrate from the analogue means of broadcasting by the year 2015. The
Constitutional Court unanimously declared the analogue switch-off as prejudicial,
unconstitutional and invalid.

Vumacam (Pty) Ltd v Johannesburg Roads Agency and Another168

The issue of state surveillance under the various provisions of the RICA Act was brought into
question.

D. CONCLUSION

In conclusion, there exist consumer protection measures in Kenya as above stated in the legal
and institutional framework. The judicial decisions from the courts and the communications
authority of Kenya confirms that the measures not only exist but can be enforced and
promoted when a breach arises. The selected comparative studies give lessons to Kenya to
enhance its legislative framework and strengthen its institutional framework on the ICT
sector to secure more protective measures to the consumers. The jurisprudence from the
United Kingdom and South Africa further encourages Kenya to adopt interpretative
mechanism that are geared toward the protection of the consumers from unreasonable and
unconstitutional services offered within the ICT sector.

167
ETV Limited v. Minister of Communication and Digital Technologies [2022] ZACC (89/22).
168
Vumacam (Pty) Ltd v Johannesburg Roads Agency and Others (14867/20) [2020] ZAGPJHC 186.

30
E. BIBLIOGRAPHY

I. Statutes

Competition Act, No. 12 of 2010, Revised Edition 2016 [2014], Laws of Kenya

Consumer Protection Act No. 68 of 2008, Laws of South Africa

Consumer Protection Act, No. 46 of 2012, Laws of Kenya

Data Protection Act, No. 24 of 2019, Laws of Kenya

Kenya Information and Communications Act, CAP 411A of 2001, Laws of Kenya

Protection of Personal Information Act, Act 4 of 2013, Laws of South Africa

The Computer Misuse Act of 1990, Laws of the United Kingdom of the Great Britain and
Northern Ireland

The Constitution of Kenya, 2010

The Constitution of South Africa, 1996 (No. 108 of 1996)

The Consumer Protect Act of 1987, Laws of the United Kingdom of the Great Britain and
Northern Ireland

31
The Consumer Protection Act, 2008, Laws of South Africa

The Consumer Rights Act of 2015, Laws of the United Kingdom of the Great Britain and
Northern Ireland

The Cybercrimes Act, Laws of South Africa

The Data Protection Act of 2018, Laws of the United Kingdom of the Great Britain and
Northern Ireland

The Electronic Communications and Transactions Act, No 25 of 2002, Laws of South Africa

The Regulation of Interception of Communications and Provision of Communication related


Information Act, 2002, Laws of South Africa

II. Regulations

Consumer Contracts (Information, Cancellations and Additional Charges) Regulations of


2013, the United Kingdom of the Great Britain and Northern Ireland

Consumer Protection from Unfair Trading Regulations of 2008, the United Kingdom of the
Great Britain and Northern Ireland

General Product Safety Regulations of 2005, the United Kingdom of the Great Britain and
Northern Ireland

Kenya Information and Communications (Consumer Protection) Regulations 2010

The Independent Communications Authority of South Africa (ICASA), Compliance


Procedure Manual Regulations, 2011 Gazette No: 34863

III. Case laws

Amabhungane Centre for Investigative Journalism NPC v Minister of Justice and


Correctional Services (25,978/2017) [2019] ZAGPPHC 384 (Amabhungane).

Eskom Holdings Limited v Halstead-Cleak ZASCA 150 (30 September 2016) Case No:
599/2015.

ETV Limited v. Minister of Communication and Digital Technologies [2022] ZACC (89/22).

32
Incorrect Price Advertised: Price not binding (Case 1)

James Kuria v Attorney General & 3 Others [2018] eKLR

Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018]
eKLR

Leonard Otieno v Airtel Kenya Limited [2018] eKLR

Meshack v Safaricom Limited, 2018

Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4)
SA 593 (SCA).

Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd [2015] ZASCA 111; 2016 (1) 518.

Vumacam  (Pty) Ltd v Johannesburg Roads Agency and Others (14867/20) [2020]


ZAGPJHC 186.

IV. Books, journal articles, reports & online materials

‘South Africa’s Performance on the IDI’s sub-indicators’ The International


Telecommunications Union (ITU) ICT Development Index (IDI) Report, 2017.

Broc Rademan et al. ‘The State of ICT in South Africa’ (2018) International Development
Research Centre, Policy Paper no. 5, Series 5: After Access.

Competition and Markets Authority, ‘Our Responsibilities’, available at


https://www.gov.uk/organisations/competition-and-markets-authority/about#our-
responsibilities accessed on 27/03/2023

Competition Authority annual report 2012/2013 accessed at


https://cak.go.ke/sites/default/files/annual

David J Teece, Gary Pisano, Amy Shuen, ‘Dynamic capabilities strategic management,
models of strategy emphasizing resource based perspective’ (2005)

David J Teece, Gary Pisano, Amy Shuen, ‘Dynamic capabilities strategic management,
models of strategy emphasizing resource based perspective’ (2005)

33
David Souter and Monica Kerretts Makau, ‘Internet governance in Kenya an assessment for
the internet society’ (2012)

Head, M., and Hassanein, K, ‘Trust in e-commerce: evaluating the impact of third-party
seals,” (2002) (3), Quarterly journal of electronic commerce

Jeroen Kraijenbrink, JC Spender, ‘The resource-based view: A review and assessment of its
critiques University of Twente’ (2009)

National Consumer Commission, Annual Performance Plan 2020/2021 NCC-Revised-APP-


2020-2021-30-March-2021.pdf (thedtic.gov.za)

Nigel Parr & Christopher Eberhardt, Consumer Protection Laws and Regulations UK 2022-
2023, (2022), available at, https://iclg.com/practice-areas/consumer-protection-laws-and-
regulations/united-kingdom, accessed on 27/03/2023

Office of Communications, ‘What is Ofcom’, available at https://www.ofcom.org.uk/about-


ofcom-what-is-ofcom accessed on 27/03/2023

Sampled cases by the Competition authority of Kenya accessed at


https://cak.go.ke/sites/default/files/guidelines/consumer

Sampled cases by the Competition authority of Kenya accessed s at


https://cak.go.ke/sites/default/files/guidelines/consumerprotection/Sampled%20Consumer
%20Protection%20Cases.pdf

Telecommunication Laws of the World; South Africa, DLA Piper (November 2022) < Key
telecommunications laws, regulations and policies in South Africa - DLA Piper
Telecommunications Laws of the World (dlapiperintelligence.com)>

The Information Commissioner’s Office, ‘Data Protection’, available at


https://www.gov.uk/organisations/information-commissioner-s-office accessed on
27/03/2023

34
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