How well do you know your rights as a consumer?

What would you do if a producer or supplier violated your consumer rights? Would you sue or turn the other cheek?

In April 2008, Mr Justice Nicholas Ombija walked into Nakumatt Ukay to shop.

He had been at the supermarket before and, without a doubt, expected that this would be like any other shopping expedition.

He took a trolley, filled it with goods, and pushed it to the cashier’s desk. Although he did not have cash to pay for the goods, Mr Ombija had a credit card with Sh19,000.

Little did he know what lay ahead of him at the cashier’s. After submitting the card, he was shocked when the cashier said the Kenya Commercial Bank (KCB) credit card did not have money to pay for the goods.

“I was shocked to be told that I didn’t have enough money in my account, yet I had deposited Sh19,000,” he said.

After several attempts to cash his credit card at the point of sale proved futile, Mr Ombija was told to return the goods he had picked.

This was not the only time his credit card had caused him agony after failing to cash in.

Mr Ombija had suffered similar embarrassment at the Intercontinental Hotel between April and May.

Not one to take this lightly, Mr Ombija sued KCB for breach of contract and causing him distress as a consumer.

“KCB subjected me to considerable amount of distress, agony, mental torture, humiliation, scandal, opprobrium, and contempt in the eyes of the public,” Mr Ombija said in his evidence in chief.

He further claimed that the supermarket incident had almost torn his family apart.

Apparently, his spouse had thought him to be a joker and denied him conjugal rights.

Further, a senior supervisor at Nakumatt Ukay told the Milimani Commercial Court that employees at the supermarket were not comfortable serving customers who lacked funds.

During the hearing, Mr Ombija said the then director of the Kenya Anti-Corruption Commission, Mr Aaron Ringera, was a witness when he signed contract forms before opening the KCB Visa account.

Mr Ombija sought Sh6 million compensation for damages and another Sh1 million for breach of contract.

Lady Justice Joyce Khaminwa ordered KCB to pay him Sh2.5 million damages for the three occasions when Mr Ombija’s KCB Visa Card was rejected for alleged lack of funds.

FAILED TO PROCESS PAYMENTS

Fast forward 2014. In April, Court of Appeal judge G.B.M. Kariuki sued Standard Chartered Bank after it failed to process payment for a Sh7 million car he had purchased at DT Dobie.

Mr Kariuki sued the bank for breach of contract, loss of credit, and damage of reputation.

In the suit, the judge claimed that he purchased the car on 1 October, 2013, and paid for it with banker’s cheques that had adequate money in them.

However, he was surprised a month later when DT Dobie refused to release the car since the cheques had been dishonoured.

Mr Kariuki called Stanchart’s Kenyatta Avenue branch and highlighted the issue before instructing the bank to cancel the cheques and send the money electronically to DT Dobie.

His instructions were ignored, prompting him to go to court.

Standard Chartered Bank offered to have the matter settled out of court by offering Mr Kariuki Sh2 million as compensation, but Mr Kariuki declined.

NOT THE ONLY ONES

These two judges are not the only ones who have gone after producers and suppliers of goods and services after faulty consumer experiences.

Igembe South MP Mithika Linturi sued Cooperative Bank after his credit card was rejected at a Nakumatt Supermarket outlet for goods worth Sh194,270. In his suit, Mr Linturi claimed that at the time of rejection, his credit card had Sh2,697,389.

Granted, by virtue of being affiliated with legislation and interpretation of the law, these three consumers may have been more aware of their rights than the ordinary consumer.

Nonetheless, according to Mr Ephraim Kanake, the chairman of the Consumer Federation of Kenya (Cofek), every consumer is protected from faulty services and goods and has a right to sue where his or her rights are violated. In fact, it does not have to take a tussle with a company to seek redress.

Unfortunately, though, says Mr Kanake, there is inadequate mitigation for consumers in the country. Worse, many consumers either do not know their rights or how to have them addressed.

Take Liz Ijeji. Money asked her what she would do if a supermarket sold her expired consumption goods. “I wouldn’t bother to sue. Nobody would believe me,” she said. “It would be too costly and I would lose the case anyway.”

Many other consumers would just turn the other cheek even in instances when their rights have been so violated that proper compensation is necessary.

“Although we have the Consumer Protection Act of 2012, which stipulates a consumer’s rights, the modus operandi is lacking,” says Mr Kanake.

Alarmingly, Mr Kanake laments that Cofek lacks sufficient funding to create consumer awareness.

He points out that many aggrieved consumers go straight to the police rather than follow the set procedure for having their grievances addressed and due compensation offered.

Apparently, you should first go to the Kenya Bureau of Standards, which would certify your case after identifying the degree of quality or lack thereof.

“If, for instance, you buy bread shelved at the supermarket beyond its sell-by date and after consumption suffer health problems, the first step should be to present your case to the Kenya Bureau of Standards, where the bread will be examined and declared expired,” says Mr Kanake.

Thereafter, you can either hire a lawyer, or present your case to the commission for administrative justice or competition authority.

Mr Murigi Kamande, an advocate of the High Court of Kenya, says consumer rights are enshrined under section 46 of the Constitution and part two of the Consumer Rights Act 2012, Section 4 to 11.

Mr Kamande says where their rights have been breached, consumers would do well to first give the producer or supplier of the goods and services an opportunity to respond and rectify the fault.

“It is only when they fail to do so that you can proceed to sue,” he says. According to section 4 (1) of the Act, a consumer may commence a proceeding on behalf of a class of persons or may become a member of such class of persons in a proceeding that may arise out of breach of contract of a consumer agreement.

The Constitution directs that consumers have a right to goods and services of reasonable quality, information on the benefits of supplies, and compensation for loss or injury arising from defects in goods or services,” says Mr Kamande.

He further observes that when suing, a consumer can list both the retailer and manufacturer as respondents. “There’s a law principle that a manufacturer owns the ultimate duty of care for goods or services to the end consumer.”

In consumer suits, a complainant will be charged both filing fee and legal fee.

“The filing fee will normally be a proportion of the value of the charge at hand, while legal fees will vary on whether you have the help of a professional lawyer or not.”

Mr Kamande says an authority ought to be enforced to formulate policy on consumer rights and investigate complaints.