SPECIAL ISSUE

Kenya Gazette Supplement No. 201 (Acts No. 46)

REPUBLIC OF KENYA

KENYA GAZETTE SUPPLEMENT

ACTS, 2012

NAIROBI, 14th December, 2012

CONTENT

Act—
PAGE

The Consumer Protection Act, 2012 1935

1!,A114 4 1: C,t7W4C1L FOR Lt:ik REPORTiNG

R E C iVED
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PO. box

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PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI

 1935

THE CONSUMER PROTECTION ACT

No. 46 of 2012

Date of Assent: 13th December, 2012

Date of Commencement: By Notice

ARRANGEMENT OF SECTIONS
Section

PART I — PRELIMINARY

1—Short title and commencement.

2—Interpretation.
3—Interpretation and purposes of Act.

PART II — CONSUMER RIGHTS

4—Class proceedings.
5—Quality of goods and services.
6—Estimates.
7—Ambiguities.
8—Charging consumers for assistance:
9— Unsolicited goods or services,
10—Consumer may commence action.
11—Advertising illegal sites.

PART III —UNFAIR PRACTICES

12—False representation.
13—Unconscionable representation.
14—Renegotiation of price.
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No. 46 Consumer Protection 2012
15—Prohibition of unfair practices.
16—Rescinding agreement.
PART IV — RIGHTS AND OBLIGATIONS RESPECTING SPECIFIC
CONSUMER AGREEMENTS

17—Application of Part
18—Requirement for future performance agreements.
19—Cancelling future performance agreements.
20—Repossession after payment of two-thirds.
21—Late delivery.
22—Requirements for time share agreements.
23—Cancellation of time share agreements.
24—Requirements for personal development services agreements.
25—Agreements is for one year.
26—Only one agreement.
27—Initiation fee.
28—Instalment plans
29—Cancellation of personal development services agreements.
30—Trustez., for payment for unavailable services.
31— Disclosure of information on internet agreement.
32— Copy of internet agreement.
33— Cancellation of internet agreement.
34—Requirements for direct agreements.
35—Cancellation of direct agreements.
36—Disclosure of information on remote agreements.
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2012 Consumer Protection No. 46
37—Copy of remote agreement.
38—Cancellation of remote agreement.

PART V — SECTORS WHERE ADVANCE FEE PROHIBITED

39—Requirements for consumer agreements on loan brokering etc.

40—Advance payments prohibited.
41—Cancellation of consumer agreement on loan brokering etc.
42—Officers and directors.
43—Prohibited representations.

PART VI — REPAIRS TO MOTOR VEHICLES AND OTHER GOODS

44—Estimates.
45—Estimate fee.
46—Authorization required.
47—Authorization not in writing.
48—Posting signs.
49—Return of parts.
50—Invoice.
51—Warranty for vehicles.
52—Consistent cost.
PART VII — CREDIT AGREEMENTS

53—Application of Part.
54—Agreement for credit card.
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No. 46 Consumer Protection 2012
55—Limiting liability for unauthorized charges.
56—Consequence of non-disclosure.
57—Correcting errors.
58—Required insurance.
59—Termination of optional services.
60—Deferral of payments.
61—Default charges.
62—Prepayments.
63—Disclosure representation.
64—Disclosure of brokerage fee.
65—Initial disclosure statement.
66—Subsequent disclosure on fixed credit.
67—Subsequent disclosure on open credit.
68—Assignment of negotiable instrument.
69—Obligations of assignees of lender.
70—Order to pay indemnity.
71—Allowance for trade-in subject to adjustment.

PART VIII — LEASING

72—Application of Part.
73—Representations.
74—Disclosure statement.

PART IX — PROCEDURES FOR CONSUMER REMEDIES

75—Application of Part.
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2012 Consumer Protection No. 46
76—Form of consumer notice.
77—Consumer agreements not binding.
78—Cancellation of consumer agreement.
79—Effect of cancellation.
80—Obligations on cancellation.
81—Title to goods undertrade,in payments.
82— Illegal charges and payments.
83—Consumer's recourse on credit card charges
84—Action in the High Court.
85—Waiver of notice.
86—Confidentiality.
87—Disclosure of Information
88—Limitation of arbitration.

PART X.— CONSUMER PROTECTION COMMITEE.

89—Establishment of the Committee.

90—Functions. of the Committee.

PART XI — GENERAL

90—Compliance with Cap.394

92—General penalty.
93—Regulations.
94—Representation.
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No. 46 Consumer Protection 2012
THE CONSUMER PROTECTION ACT, 2012

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 incidental thereto.

ENACTED by the Parliament of Kenya as follows—

PART I - PRELIMINARY

Short title and 1. This Act may be cited as the Consumer

commencement.
Protection Act, 2012 and shall come into operation on
such date as the Minister may, by notice in the Gazette,
appoint which date shall not exceed ninety days from
the date of publication.

Interpretation. 2. (1) In this Act, unless the context otherwise

requires—

"advance" means value, as prescribed, received.by

the borrower under a credit agreement;

"accredited consumer organization" means society

Cap. 108 registered under the Societies Act, for the purposes of
consumer protection and related matters;

"annual percentage rate" means the annual

percentage rate in respect of a credit agreement that is
determined in the prescribed manner;

"borrower" means a consumer who is or may

become a party to a credit agreement and who receives
or may receive credit or a loan of money from the other
party, but does not include a guarantor;
 1941
2012 Consumer Protection No. 46
"brokerage fee" means the payment that a borrower
makes or agrees to make to a loan broker who assists the
borrower in arranging a credit agreement, and includes
an amount deducted from an advance made to the
borrower that is paid to the broker;

"Cabinet Secretary" means the Cabinet Secretary

for the time being responsible for matters relating to
trade and industry;

"consumer" means-

(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;

"consumer agreement" means an agreement

between a supplier and a consumer in which the Supplier
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No. 46 Consumer Protection 2012
agrees to supply goods or services for payment;

"consumer report" means a written, oral or other

communication of credit information or personal
information, or both, pertaining to a consumer;

"consumer transaction" means any act or instance

of conducting business or other dealings with a
consumer, including a consumer agreement;

"cost of borrowing" means all amounts that a

borrower is required to pay under or as a condition of
entering into a credit agreement other than—

(a) a payment or repayment of a portion of the

principal under the agreement as
prescribed; and

(b) prescribed charges;

"credit agreement" means a consumer agreement

under which a lender extends credit or lends money to a
borrower and includes a supplier credit agreement and a
prospective consumer agreement under which an
extension of credit, loan of money or supplier credit
agreement may occur in the future, but does not include
an agreement Under which a lender extends' credit or
lends money on the security of a mortgage of real
property or consumer agreements of a prescribed type;

"credit card" means a card or device under which

borrower can obtain advances under a credit agreement,
as defined in Part VII, for open credit;

"credit information" means information about a

consumer as to name, age, occupation, place of
 1943
2012 Consumer Protection No. 46
residence, previous places of residence, marital status,
spouse's name and age, number of dependants,
particulars of education or professional qualifications,
places of employment, previous places of employment,
estimated income, paying habits, outstanding debt
obligations, cost of living obligations and assets;

"credit repair" means services or goods that are

intended to improve a consumer report, credit
information, file or personal information, including s
credit record, credit history or credit rating;

"credit repairer" means—

(a) a supplier of credit repair; or

(b) a person who holds himself out as a

person described in clause (a);

"default charge" means a charge imposed on a

borrower who does not make a payment as it comes due
under a credit agreement or who does not comply with
any other obligation under a credit agreement, but does
not include interest on an overdue payment;

"direct agreement" means a consumer agreement

that is negotiated or concluded in person at a place other
than—

(a) at the supplier's place of business; or

(b) at a market place, an auction, trade fair,

agricultural fair or exhibition;

"estimate" means an estimate of the total cost of

work on and repairs to the goods being repaired;
 1944
No. 46 Consumer Protection 2012
"file", when used as a noun, means all of the
information pertaining to a consumer that is recorded
and retained by a person, regardless of the manner or
form in which the information is stored;

"fixed credit" means credit or a loan of money

under a credit agreement that is not for open credit;

"floating rate" means a rate that bears a specified

mathematical relationship to a public index that meets
the prescribed requirements;

"future performance agreement" means a consumer

agreement in respect of which delivery, performance or
payment in full is not made when the parties enter the
agreement;

"initiation fee" means a fee in addition to an annual

membership fee;

"internet agreement" means a consumer agreement

formed by text-based internet communications;

"internet gaming site" means an internet site that

accepts or offers to accept wagers or bets over the
internet—

(a) as part of the playing of or participation in.

any game of chance or mixed chance and
skill that is to take place inside or outside
Kenya, or

(b) on any contingency or on any event that

may or is to take place inside or outside of
Kenya, including, without restricting the
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2012 Consumer Protect* No. 46
generality of the foregoing, a casino game,
card game, horse race, fight, match,
sporting event or contest;

"loan broker" means,

(a) a supplier of loan brokering, or

(b) a person who holds himself out to be a

person described in clause (a);

"lease" means a consumer agreement for the lease of

goods, other than a consumer agreement for the lease of
goods in connection with a residential tenancy
agreement, and "lessor" and "lessee" have a
corresponding meaning;

"lease term" means the period during which the

lessee is entitled to retain possession of the leased
goods;

"lender" means a supplier who is or may become

a party to a credit agreement and who extends or may
extend credit or lends or may lend money to the
borrower and includes a credit card issuer;

"loan brokering" means services or goods that are

intended to assist a consumer in obtaining credit or a
loan of money, including obtaining credit or a loan of
money from the loan broker who is providing the
services or goods to the consumer;

"membership fee" means the amount payable by a

onsumer for personal development services;

"open credit" means credit or a loan of money

 1946
No. 46 Consumer Protection 2012
under a credit agreement, as defined in Part VII, that-

(a) anticipates multiple advances to be made

as requested by the borrower in
accordance with the agreement; and

(b) does not define the total amount to be

advanced to the borrower under the
agreement, although it may impose a
credit limit;

"operator" means—

(a) a person who is a credit repairer or a loan

broker; or

(b) a supplier who supplies such goods or

services as may be prescribed or a
person who holds himself out as a
. supplier of such goods or services;

"optional service" means a service that is offered

to a borrower in connection with a credit agreement and
that the borrower does not have to accept in order to
enter into the agreement;

"personal development services" means—

(a) services provided for—

(i) health, fitness, diet or matters of a

similar nature;

(ii) modeling and talent, including photo

shoots relating to modeling and
talent, or matters of a similar nature;
 1947

2012 Consumer Protection No. 46
(iii) martial arts, sports, dance or similar
activities;

(iv) such other services as may be

prescribed; and

(b) facilities provided for or instruction on

the services referred to in clause (a) and
any goods that are incidentally provided
in addition to the provision of the
services;

"personal information" means information other

than credit information about a consumer's character,
reputation, health, physical or personal characteristics or
mode of living or about any other matter concerning the
consumer;

-remote agreement" means a consumer agreement

entered into when the consumer and supplier are not
present together;

-repairer" means a supplier who works on or

repairs vehicles or other prescribed goods;

"residual obligation lease" means a lease under

which the lessor may require the lessee at the end of the
lease term to pay the lessor an amount based in whole or
in part on the difference, if any, between—

(a) the estimated wholesale value of the leased

goods at the end of the lease term; and

(b) the realizable value of the leased goods at the

end of the lease term.
 1948
No. 46 Consumer Protection 2012
"services" means anything other than goods,
including any service, right, entitlement or benefit;

"supplier" means a person who is in the business of

selling, leasing or trading in goods or services or is
otherwise in the business of supplying goods or services,
and includes an agent of the supplier and• a person who
holds himself out to be a supplier or an agent of the
supplier;

"supplier credit agreement" means a consumer

agreement, other than a consumer agreement involving
leases to which Part VIII applies, under which a supplier
or an associate of the supplier, extends fixed credit to a
consumer to assist the consumer in obtaining goods or
services, other than credit or a loan of money, from the
supplier;

"supplier creditor" means the supplier or an

associate of a supplier in a supplier credit agreement;

"time share agreement" means a consumer

agreement by which a consumer—

(a) acquires the right to use property as part of a

plan that provides for the use of the property to
circulate periodically among persons
participating in ,the plan, whether or not the
property is located in Kenya, or

(b) is provided with access to discounts or benefits

for the future provikon of transportation,
accommodation or other goods or services
related to travel;
 1949

2012 Consumer Protection No. 46
"trade-in allowance" means the greater of—

(a) the price or value of the consumer's goods

or services as set out in a trade-in
arrangement, and

(b) the market value of the consumer's goods

or services when taken in trade under a
trade-in arrangement; and

"vehicle" means a motor vehicle as defined in the Cap.403

Traffic Act.

(2) Nothing in this Act shall be interpreted to limit any

right or remedy that a consumer may have in law. Interpretation
and purposes of
3. (1) This Act must be interpreted in a manner that Act
gives effect to the purposes set out in subsection (4).

(2) When interpreting or applying this Act, a

person, court or the Advisory Committee may consider-

(a) appropriate foreign and international law;

and

(b) appropriate international conventions,

declarations or protocols relating to
consumer protection.

(3) If a provision of this Act requires a document to

be signed or initialed by a party to a transaction, that
signing or initialing may be effected in any manner
recognized by law, including by use of an electronic
signature as defined in the Kenya Information and
Communications Act.
 1950
Consumer Protection 2012
(4) The purposes of this Act are to promote and
advance the social and economic welfare of consumers
in Kenya by-

(a) establishing a legal framework for the

achievement and maintenance of a consumer
market that is fair, accessible, efficient,
sustainable and responsible for the benefit of
consumers generally;

(b) reducing and ameliorating any disadvantages

experienced in accessing any supply of goods
or services by consumers;

(c) promoting fair and ethical business practices;

(d) protecting consumers from all forms and

means of unconscionable, unfair,
unreasonable, unjust or otherwise improper
trade practices including deceptive,
misleading, unfair or fraudulent conduct;

(e) improving consumer awareness and

information and encouraging responsible and
informed consumer choice and behavior;

(0 promoting consumer confidence,

empowerment and the development of a
culture of consumer responsibility, through
individual and group education, vigilance,
advocacy and activism;

(g) providing a consistent, accessible and

efficient system of consensual resolution of
 1951
2012 Consumer Protection No. 46
disputes arising from consumer transactions;
and

(h) providing for an accessible, consistent,

harmonized, effective and efficient system of
redress for consumers.

(5) To better ensure the realization of the purposes

of this Act, and the enjoyment of the consumer rights
recognized or conferred by this Act, the Advisory
Committee, in addition to its responsibilities set out in
this Act, is responsible for-

(a) taking reasonable and practical measures • to

promote the purposes of this Act and to
protect and advance the interests of all
consumers across all sectors of the economy,
whether of a private or public nature;

(b) monitoring and reporting each year to the

Cabinet Secretary on the availability of goods
and services including price and market
conditions, annual state of consumer
protection report, conduct and trends affecting
consumer rights and any other matter relating
to the supply of goods and services.

PART II -CONSUMAR RIGHTS

4. (1) A consumer may commence a proceeding on Class

proceedings.
behalf of a class of persons or may become a member of
such class of persons in a proceeding in respect of a
dispute arising out of a consumer agreement despite any
term or acknowledgment in the consumer agreement or
other agreement that purports to prevent or has the effect
 1952
No. 46 Consumer Protection 2012
of preventing the consumer from commencing or
becoming a member of a class proceeding.

(2) When a dispute that may result in a class

proceeding arises, the consumer, the supplier and any
other person involved in it may agree to resolve the
dispute using any procedure that is available in law.

(3) A settlement or decision that results from the

procedure agreed to under subsection (2) shall be
binding on the parties.

Quality of 5. (1) The supplier is deemed to warrant that the

goods and
services. goods or services supplied under a consumer agreement
are of a reasonably merchantable quality.

(2) The implied conditions and warranties

Cap. 31
applying to the sale of goods under the Sale of Goods
Act shall apply with necessary modifications to goods
that are leased, traded or otherwise supplied under a
consumer agreement.

(3) Any provision, whether part of the consumer

agreement or not, that purports to negate or vary any
implied condition or warranty under the Sale of Goods
Act or any condition or warranty under this Act is*void.

(4) If a term or acknowledgement referenced in

subsection (3) is a term of the agreement, it is severable
from the agreement and shall not be evidence of
circumstances showing intent that the deemed or
implied warranty or condition does not apply.

Estimates. 6. (1) If a consumer agreement includes an estimate,

the supplier shall not charge the consumer an amount
that exceeds the estimate by more than ten per cent.
 1953
2012 Consumer Prptection No. 46
(2) If a supplier charges an amount that exceeds
the estimate by more than ten per cent, the consumer
may require that the supplier provide the goods or
services at the estimated price.

(3) Nothing in this section prevents a consumer

and a supplier from agreeing to amend the estimate or
price in a consumer agreement, if the consumer requires
additional or different goods or services.

7. Any ambiguity that allows for more than one Ambiguities.

reasonable interpretation of a consumer agreement
provided by the supplier to the consumer or of any
information that must be disclosed under this Act shall
be interpreted to the benefit of the consumer.

8. No person shall charge a consumer for Charging

consumers for
assisting the consumer to obtain any benefit, right or assistance.
protection to which the consumer is entitled under this
Act, unless, before the consumer agrees to pay the
charge, the person discloses the entitlement's existence
and direct availability to the consumer and the cost, if
any, the consumer would be required to pay for the
entitlement if the consumer obtained the entitlement
directly.

9. (1) Except as provided in this section, a recipient Unsolicited

goods and
of unsolicited goods or services has no legal obligation services.
in respect of their use or disposal.

(2) No supplier shall demand payment or make

any representation that suggests that a consumer is
required to make payment in respect of any unsolicited
goods or services despite their use, receipt, misuse, loss,
damage or theft unless, if at the time of consumption the
 1954
No. 46 Consumer Protection 2012
consumer reasonably believed that the goods or services
were meant for his consumption.

(3) A request for goods or services shall not be

inferred solely on the basis of payment, inaction or the
passing of time.

(4) If a consumer is receiving goods or services

on an ongoing or periodic basis and there is a material
change in such goods or services, the goods or services
shall be deemed to be unsolicited from the time of the
material change forward unless the supplier is able to
establish that the consumer consented to the material
change.

(5) A supplier may rely on a consumer's consent

to a material change that is made orally, in writing or by
other affirmative action but the supplier shall bear the
onus of proving the consumer's consent.

(6) If a supplier has received a payment in respect

of unsolicited goods or services, the consumer who
made the payment may demand a refund of the payment
in accordance with section 80 within one year after
having made the payment.

(7) A supplier who receives a demand for a

refund under subsection (6) shall refund the payment
within the prescribed period of time.

(8) In this section, "unsolicited goods or services"

means goods that are supplied to a consumer who did
not request them but does not include—

(a) goods that the recipient knows or ought to

know are intended for another person;
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2012 Consumer Protection No. 46
(b) a change to periodically supplied goods, if the
change in goods is not a material change; or

(c) goods supplied under a written future

performance agreement that provides for the
periodic supply of goods to the recipient
without further solicitation, or

(d) services that are supplied to a consumer who

did not request them but does not include—

(i) services that were intended for another

person from the time the recipient knew
or ought to have known that they were so
intended;

(ii) a change to ongoing or periodic services

that are being supplied, if the change in
the services is not a material change; or

(iii) services supplied under a written future

performance agreement that provides for
the ongoing or periodic supply of
services to the recipient without further
solicitation.

10. A consumer who made payment under section Consumer may

9(6) may commence action to recover the payment in commence
action.
accordance with section 84.

11. (1) No person shall advertise an internet gaming Advertising of

site that is operated contrary to any written law. illegal sites.

(2) No person, other than an internet service

provider, shall arrange for or otherwise facilitate
 1956
No. 46 Consumer Protection 2012
advertising prohibited under subsection (1) on behalf of
another person.

(3) For the purpose of subsection (1), a person

advertises an internet gaming site only if the advertising
originates in Kenya or is primarily intended for Kenya
residents.

(4) For the purpose of subsection (1), "advertise"

includes—

(a) providing, by print, publication,

broadcast, telecommunication or
distribution by any means, information
for the purpose of promoting the use of
an internet gaming site;

(b) providing a link in a website for the

purpose of promoting the use of an
internet gaming site, but does not
include a link generated as the result of a
search carried out by means of an
internet search engine; and

(c) entering into a sponsorship relationship

for the purpose of promoting the use of
an internet gaming site.

PART III - UNFAIR PRACTICES

False 12. (1) It is an unfair practice for a person to make a

representation.
false, misleading or deceptive representation.

(2) Without limiting the generality of what

constitutes a false, misleading or deceptive
representation, the following are included as false,
 1957
2012 Consumer Protection No. 46 ••
misleading or deceptive representations—

(a) a representation that the goods or

services have sponsorship, approval,
performance characteristics,
accessories, uses, ingredients,
benefits or qualities they do not
have;

(b) a representation that the person who

is to supply the goods or services has
sponsorship, approval, status,
affiliation or connection the person
does not have;

(c) a representation that the goods or

services are of a particular standard,
quality, grade, style or model, if they
are not;

(d) a representation that the goods are

new, or unused, if they are not or are
reconditioned or reclaimed, but the
reasonable use of goods to enable
the person to service, prepare, test
and deliver the goods does not result
in the goods being deemed to be
used for the purposes of thiS
paragraph;

(e) a representation that •the goods have

been used to an extent that is
materially different from the fact;

(f) a representation that the goods or

services are available for a reason
 1958

No. 46 Consumer Protection 2012
that does not exist;

(g) a representation that the goods or

services have been supplied in
accordance with a previous
representation, if they have not;

(h) a representation that the goods or

services or any part of them are
available or can be delivered or
performed when the person making
the representation knows or ought to
know they are not available or
cannot be delivered or performed;

(i) a representation that the goods or

services or any part of them will be
available or can be delivered or
performed by a specified time when
the person making the representation
knows or ought to know they will
not be available or cannot be
delivered or performed by the
specified time;

(j) a representation that a service, part,

replacement or repair is needed or
advisable, if it is not;

(k) a representation that a specific price

advantage exists, if it does not;

(1) a representation that misrepresents

the authority of a salesperson,
representative, employee or agent to
negotiate the final terms of the
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2012 Consumer Protection No. 46
agreement;

(m) a representation that the transaction

involves or does not involve rights,
remedies or obligations if the
representation is false, misleading or
deceptive;

(n) a representation using exaggeration,

innuendo or ambiguity as to a
material fact or failing to state a
material fact if such use or failure
deceives or tends to deceive;

(o) a representation that Misrepresents

the purpose or intent of any
solicitation of or any communication
with a consumer;

(p) a representation that misrepresents

the purpose of any charge or
proposed charge;

(q) a representation that misrepresents

or exaggerates the benefits that are
likely to flow to a consumer if the
consumer helps a person obtain new
or potential customers;

(r) unconscionable representation;

13.(1) It is an unfair practice to make an Unconscionable

representation.
unconscionable representation.

(2) Without limiting the generality of what may

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No. 46 Consumer Protection 2012
be taken into account in determining whether a
representation is unconscionable, there may be taken
into account that the person making the representation or
the person's employer or principal knows or ought to
know—

(a) that the consumer is not reasonably able

to protect his or her interests because of
disability, ignorance, illiteracy, inability
to understand the language of an
agreement or similar factors;

(b) that the price grossly exceeds the price at

which similar goods or services are
readily available to like consumers;

(c) that the consumer is unable to receive a

substantial benefit from the subject-
matter of the representation;

(d) that there is no reasonable probability of

payment of the obligation in full by the
consumer;

(e) that the consumer transaction is

excessively one-sided in favor of.
someone other than the consumer;

(f) that the terms of the consumer

transaction are so adverse to the
consumer as to be inequitable;

(g) that a statement of opinion is misleading

and the consumer is likely to rely on it to
his or her detriment; or
 1961
2012 Consumer Protection No. 46
(h) that the consumer is being subjected to
undue pressure to enter into a consumer
transaction.

14. It is an unfair practice for a person to use his, Renegotiation

of price.
her or its custody or control of a consumer's goods to
pressure the consumer into renegotiating the terms of a
consumer transaction.

15. (1) No person shall engage in an unfair Prohibition of

unfair practices.
practice.

(2) A person who performs an act referred to in

sections 12, 13 and 14 shall be deemed to be engaging
in an unfair practice.

(3) It is not an unfair practice for a person, on

behalf of another person, to print, publish, distribute,
broadcast or telecast a representation that the person
accepted in good faith for printing, publishing,
distributing, broadcasting or telecasting in the ordinary
course of business.

16.(1) Any agreement, whether written, oral or Rescinding

agreement.
implied, entered into by a consumer after or while a
person has engaged in an unfair practice may be
rescinded by the consumer and the consumer is entitled
to any remedy that is available in law, including
damages.

(2) A consumer is entitled to recover the amount

by which the consumer's payment under the agreement
exceeds the value that the goods or services have to the
consumer or to recover damages, or both, if rescission
of the agreement under subsection (1) is not possible—
 1962
No. 46 Consumer Protection 2012
(a) because the return or restitution of the
goods or services is no longer possible;
or

(b) because rescission would deprive a third

party of a right in the subject-matter of
the agreement that the third party has
acquired in good faith and for value.

(3) The consumer may express notice in any way

as long as it indicates the intention of the consumer to
rescind the agreement or to seek recovery where
rescission is not possible and the reasons for so doing
and the notice meets any requirements that may be
prescribed.

(4) Notice may be delivered in the manner used

when entering into the contract.

(5) If notice is delivered other than by personal

service, the notice shall be deemed to have been given
when sent.

(6) The consumer may send or deliver the notice

to the person with whom the consumer contracted at the
address set out in the agreement or, if the consumer did
not receive a written copy of the agreement or the
address of the person was not set out in the agreement,
the consumer may send or deliver the notice—

(a) to any address of the person on record

with the consumer; or

(b) to an address of the person known by the

consumer.
 1963
2012 Consumer Protection No. 46
(7) If a consumer has delivered notice and has not
received a satisfactory response within the prescribed
period, the consumer may commence an action.

(8) In the trial of an issue under this section, oral

evidence respecting an unfair practice is admissible
despite the existence of a written agreement and despite
the fact that the evidence pertains to a representation in
respect of a term, condition or undertaking that is or is
not provided for in the agreement.

(9) A court may award exemplary or punitive

damages in addition to any other remedy in an action
commenced under this section.

(10) Each person who engaged in an unfair practice

is liable jointly and severally with the person who
entered into the agreement with the consumer for any
amount to which the consumer is entitled under this
section.

(11) If an agreement to which subsection (1) or (2)

applies has been assigned or if any right to payment
under such an agreement has been assigned, the liability
of the person to whom it has been,assigned is limited to
the amount paid to that person by the consumer.

(12) When a consumer rescinds an agreement

under subsection (1), such rescission operates to cancel,
as if they never existed—

(a) the agreement;

(b) all related agreements;

(c) all guarantees given in respect of money

 1964

No. 46 Consumer Protection 2012
payable under the agreement;

(d) all security given by the consumer or a

guarantor in respect of money payable
under the agreement; and
(e) all credit agreements, as defined in Part
VII, and other payment instruments,
including promissory notes—

(i) extended, arranged or facilitated by

the person with whom the
consumer reached the agreement;
or

(ii) otherwise related to the

agreement.

(13) If a consumer is required to give notice under

this Part in order to obtain a remedy, a court may
disregard the requirement to give the notice or any
requirement relating to the notice if it is in the interest
of justice to do so.

PART IV - RIGHTS AND OBLIGATIONS

RESPECTING SPECIFIC CONSUMER
AGREEMENTS

Application of 17.(1) Despite sections 78 and 79, in the

Part.
prescribed circumstances, the effect of cancellation of a
consumer agreement to which this Part applies by a
consumer and the obligations arising as a result of the
cancellation of the agreement may be subject to such
limitations as may be prescribed.
 1965
2012 Consumer Protection No. 46
(2) Sections 18 to 21-

(a) apply to future performance agreements

if the consumer's total potential payment
obligation under the agreement,
excluding the cost of borrowing, exceeds
a prescribed amount;

(b) do not apply to agreements that are future

performance agreements solely because
of an open credit arrangement.

(3) Sections 24 to 29-

(a) apply in respect of personal development

services or proposed personal
development services for which—

(i) payment in advance is required;

and

(ii) the consumer's total potential

payment obligation, excluding
cost of borrowing, exceeds a
prescribed amount;
 1966
No:46 Consumer Protection 2012
(b) do not apply to personal development
services that are provided-

(i) on a non-profit or co-operative

basis;

(ii) by a private club primarily

owned by its members;

(iii) as an incidental part of the goods

or services that are being supplied
to the consumer; or

(iv) by a golf club.

(4) Sections 31 to 33 apply to an internet

agreement if the consumer's total potential payment
obligation under the agreement, excluding the cost of
borrowing, exceeds a prescribed amount.

(7) Sections 34 and 35 apply to direct agreements if

the consumer's total potential payment obligations
under the agreement, excluding the cost of borrowing,
exceeds such amount as may be prescribed.

(8) Sections 36 to 38 apply to remote agreements if

the consumer's total potential payment obligation under
the agreement, excluding the cost of borrowing, exceeds
such amount as may be prescribed.

Requirement for 18. Every future performance agreement shall be

future
performance in writing, shall be delivered to the consumer and
agreements. shall be made in accordance with the prescribed
requirements.

Cancelling 19. A consumer may cancel a future performance

 1967
2012 Consumer Protection No. 46
agreement within one year after the date of entering future
into the agreement if the consumer does not receive a performance
agreements.
copy of the ' agreement that meets
the requirements under section 18.

20. (1) Where a consumer under a future Repossession

performance agreement has paid two-thirds or more of after payment of
two-thirds.
his or her payment obligation as fixed by the agreement,
any provision in the agreement, or in any security
agreement incidental to the agreement, under which the
supplier may retake possession of or resell the goods or
services upon default in payment by the consumer is not
enforceable except by leave obtained from the High
Court.

(2) Upon an application for leave under

subsection (1), the court may, in its discretion, grant
leave to the supplier or refuse leave or grant leave upon
such terms and conditions as the court considers
advisable.

21.(1) A consumer may cancel a future Late delivery.

performance agreement at any time before delivery
under the agreement or the commencement of
performance under the agreement if the supplier—

(a) does not make delivery within thirty days

after the delivery date specified in the
agreement or an amended delivery date
agreed to by the consumer in writing; or

(b) does not begin performance of his, her or

its obligations within thirty days after the
commencement date specified in the
agreement or an amended
commencement date agreed to by the
 1968

No. 46 Consumer Protection 2012
consumer in writing.

(2) If the delivery date or commencement date is

not specified in the future performance agreement, a
consumer may cancel the agreement at any time before
delivery or commencement if the supplier does not
deliver or commence performance within thirty days
after the date the agreement is entered into.

(3) If, after the period in subsection (1) or (2) has

expired, the consumer agrees to accept delivery or
authorize commencement, the consumer may not cancel
the agreement under this section.

(4) For the purposes of subsections (1) and (2), a

supplier is considered to have delivered or commenced
performance under a future performance agreement if,

(a) delivery was attempted but was refused

by the consumer at the time that delivery
was attempted or delivery was attempted
but not made because no person was
available to accept delivery for the
consumer on the day for which
reasonable notice was given to the
consumer that there was to be delivery;
or

(b) commencement was attempted but was

refused by the consumer at the time that
commencement was attempted or
commencement was attempted but did
not occur because no person was
available to enable commencement on
the day for which reasonable notice was
given to the consumer that
 1969
2012 Consumer Protection No. 46
commencement was to occur.

22. Every time share agreement shall be in Requirements

for time share
writing, shall be delivered to the consumer and shall be agreements.
made in accordance with the prescribed requirements.

23 (1) A consumer may, without any reason, cancel Cancellation of

time share
a time share agreement at any time from the date of agreements.
entering into the agreement until ten days after receiving
the written copy of the agreement.

(2) In addition to the right under subsection (1), a

consumer may cancel a time share agreement within one
year after the date of entering into the agreement if the
consumer does not receive a copy of the agreement that
meets the requirements under section 22.

24 (1) Every personal development services Requirements

for personal
agreement shall be- development
services
(a) in writing; agreements.

(b) delivered to the consumer ;

(c) made in accordance with the prescribed

requirements.

(2) No supplier shall require or accept payment

for personal development services from a consumer with
whom the supplier does not have an agreement that
meets the requirements established under subsection (1).

25.(1) No personal development services An agreement is

for one year.
agreement may be made for a term longer than one year
after the day that all the services are made available to
the consumer
 1970
No. 46 Consumer Protection 2012
(2) Any personal development services agreement
that provides for a renewal or an extension of the
agreement beyond one year shall be deemed to create a
separate agreement for each renewal or extension of one
year or less.

(3) A personal development services agreement

that provides for the renewal or extension of the
agreement is not valid unless the supplier complies with
the prescribed requirements.

(4) A personal development services agreement

that provides for a renewal or extension of the
agreement shall be deemed not to be renewed or
extended if the consumer notifies the supplier, before
the time for renewal or extension that the consumer does
not want to renew or extend.

(5) Subsections (2) and (3) do not apply to an

agreement providing for successive monthly renewals if
the consumer has the option of terminating on one
month's notice or less.

Only one 26. (1) No supplier shall enter into a new

agreement.
agreement for personal development services with a
consumer with whom the supplier has an existing
agreement for personal development services unless the
new agreement is for pers'onal development services that
are distinctly different from the services provided under
the existing agreement.

(2) Any new agreement entered into in

contravention of subsection (1) is void.

(3) For the purposes of subsection (1), a different

 1971
2012 Consumer Protection No. 46
term or a different commencement date does not
constitute a distinct difference in the personal
development services to be provided.

(4) Nothing in this section prevents a personal

development services agreement from being renewed
during the term of the agreement provided that the
renewal meets the requirements under section 24.

27. No supplier of personal development services Initiation fee.

shall—

(a) charge a consumer more than one

initiation fee; or

(b) charge an initiation fee that is greater

than twice the annual membership fee. •

28 (1) Every supplier of personal development Installment

plans.
services shall make available to consumers at least one
plan for installment payments of membership fees and
initiation fees, if applicable, that allow consumers to
make equal monthly payments over the term of the
personal development services agreement.

(2) No supplier shall provide an installment

payment plan through which the total amount paid by
installments exceeds the membership or initiation fee, if
applicable, by more than twenty-five per cent.

29.(1) A consumer may, without any reason, cancel Cancellation:

cooling-off
a personal development services agreement at any time period.
within ten days after the later of receiving the written
copy of the agreement and the day all the services are
available.
 1972
No. 46 Consumer Protection 2012

(2) In addition to the right under subsection (1), a

consumer may cancel a personal development services
agreement within one year after the date of entering into
the agreement if the consumer does not receive a copy
of the agreement that meets the requirements under
section 24.

Trustee for 30.(1) No supplier shall receive payment from a

payment for
unavailable consumer for personal development services that are not
services. available at the time the payment is made.

(2) Subsection (1) does not apply when one of the

services that is not available is the use of a facility and
the consumer has agreed in writing to use another
facility provided by the supplier until the facility
contracted for is available.

(3) If a facility is not available for use on the day

specified in the agreement, the trustee shall refund all
payment received from the consumer unless the
consumer agrees in writing to permit the trustee to retain
the payment.

(4) No permission given under subsection (3)

applies for longer than ninety days but a subsequent
permission may be given on the expiration of
permission.

(5) Where a supplier has a trustee under

subsection (1)—

(a) any notice to the trustee shall be deemed

to be notice to the supplier; and

(b) any money payable by the supplier is

payable by the trustee to the extent that
 1973
2012 Consumer Protection No. 46
the trustee holds sufficient trust funds
for that purpose.

(6) Every trustee under subsection (1) shall, upon

receiving any payment from a consumer, provide the
consumer with written confirmation of receipt of the
payment and of the fact that the payment will be dealt
with in accordance with sections 24 to 29 and with this
section.

(7) No trustee shall release to a supplier funds

received from a consumer until the personal
development services are available.

(8) The trustee shall release the funds held under

this section to the consumer if the consumer cancels the
personal development services agreement in accordance
with this Act.

31. (1) Before a consumer enters into an internet Disclosure of

information on
agreement, the supplier shall disclose the prescribed internet
information to the consumer. agreement.

(2) The supplier shall provide the consumer with

an express opportunity to accept or decline the
agreement and to correct errors immediately before
entering into it.

(3) In addition to the requirements set out in

section 5, disclosure under this section shall be
accessible and shall be available in a manner that
ensures that.

(a) the consumer has accessed the

information; and
 1974
No. 46 Consumer Protection 2012

(b) the consumer is able to retain and print

the information.

Copy of internet 32. (1) A supplier shall deliver to a consumer who

agreement.
enters into an internet agreement a copy of the
agreement in writing within the prescribed period after
the consumer enters into the agreement.

(2) The copy of the internet agreement shall

include such information as may be prescribed.

(3) For the purposes of subsection (1), a supplier

is considered to have delivered a copy of the internet
agreement to the consumer if the copy is delivered in the
prescribed manner.

Cancellation of 33. (1) A consumer may cancel an internet

internet
agreement. agreement at any time from the date the agreement is
entered into until seven days after the consumer receives
a copy of the agreement if-

(a) the supplier did not disclose to the

consumer the information required under
section 38 (1); or

(b) the supplier did not provide to the -

consumer an express opportunity to
accept or decline the agreement or to
correct errors immediately before
entering into it.

(2) A consumer may cancel an internet agreement

within thirty days after the date the agreement is entered
into, if the supplier does not comply with a requirement
under section 43.
 1975
2012 Consumer Protection No. 46
34. Every direct agreement shall be in writing, Requirements
shall be delivered to the consumer and shall be made in for direct
agreements.
accordance with the prescribed requirements.

35. (1) A consumer may, without any reason, cancel Cancellation of

a direct agreement at any time from the date of entering direct
agreements.
into the agreement.

(2) In addition to the right under subsection (1), a

consumer may cancel a direct agreement within one year
after the date of entering into the agreement if the
consumer does not receive, a copy of the agreement that
meets the requirements under section 34.

36. Before a consumer enters into a remote Disclosure of

agreement, the supplier shall disclose the prescribed information on
remote
information to the consumer and shall satisfy the agreements.
prescribed requirements.

37. (1) A supplier shall deliver to a consumer who Copy of remote

enters into a remote agreement a copy of the agreement agreement.
in writing within the prescribed period after the
consumer enters into the agreement.

(2) The copy of the remote agreement shall

include such information as may be prescribed.

(3) For the purposes of subsection (1), a supplier

is considered to have delivered a copy of the remote
agreement to the consumer if the copy is delivered.in the
prescribed manner.

38. (1) A consumer may cancel a remote agreement Cancellation of

at any time from the date the agreement is entered into remote
agreement.
until seven days after the consumer receives a copy of
 1976

No. 46 Consumer Protection 2012
the agreement if the supplier fails to comply with
section 36.

(2) A consumer may cancel a remote agreement

within one year after the date the agreement is entered
into, if the supplier does not comply with a requirement
under section 37.

PART V -SECTORS WHERE ADVANCE FEE

PROHIBITED

Requirements 39. Every consumer agreement for loan brokering,

for consumer
agreements on credit repair or for the supply of such other goods or
loan brokering, services as may be prescribed shall be in writing, shall
etc. be delivered to the consumer and shall be made in
accordance with the prescribed requirements.

Advance 40. (1) No operator shall require or accept any

payments
prohibited. payment or any security for a payment, directly or
indirectly, from or on behalf of a consurn unless and
until—

(a) in respect of loan brokering, the

consumer receives the credit or loan of
money that the loan broker has assisted
the consumer to obtain;
•
(b) in respect of credit repair, the credit
repairer causes a material improvement
to the consumer report, credit
information, file, personal information,
credit record, credit history or credit
rating of the consumer; or

(c) in respect of the supply of such other

goods or services as may be prescribed,
 1977

2012 Consumer Protection No. 46
the prescribed requirements are met.

(2) Every arrangement by which an operator takes

security in contravention of subsection (1) is void.

41. (1) A consumer who is a party to an agreement Cancellation of

consumer
for loan brokering, credit repair or the supply of such agreement on
goods and services as may be prescribed may, without loan brokering
an) reason, cancel the agreement at any time from the etc
date of entering into the agreement until ten days after
receiving the written copy of the agreement.

(2) In addition to the right under subsection (1), a

consumer who is a party to an agreement for loan
brokering, credit repair or the supply of such goods and
services as may be prescribed may cancel the agreement
within one year after the date of entering into. it if the
consumer does not receive a copy of the agreement that
meets the requirements under section 65.

42. The officers and directors of an operator are Officers and

Director.
jointly and severally liable for any remedy in respect of
which a person is entitled to commence a proceeding
against the operator.

43. An operator shall not communicate or cause to Prohibited

representations.
be communicated any representation that is prescribed
as a prohibited representation.

PART VI - REPAIRS TO MOTOR VEHICLES

AND OTHER GOODS

44. (1) No repairer shall charge a consumer for any Estimates.

work or repairs unless the repairer first gives the
consumer an estimate that meets the prescribed
requirements.
 1978
No. 46 Consumer Protection 2012
(2) Despite subsection (1), a repairer may charge
for work or repairs without giving an estimate if—

(a) the repairer offers to give the consumer

an estimate and the consumer declines
the offer of an estimate;

(b) the consumer specifically authorizes the

maximum amount that he or she will pay
the repairer to make the repairs or do the
work; and

(c) the cost charged for the work or repairs

does not exceed the maximum amount
authorized by the consumer.

Estimate fee. 45. (1) Subject to subsection (3), no repairer shall

charge a fee for an estimate unless the consumer is told
in advance that a fee will be charged and the amount of
the fee.

(2) A fee for an estimate shall be deemed to

include the cost of diagnostic time, the cost of
reassembling the goods and the cost of parts that will be
damaged and must be replaced when reassembling if the
work or repairs are not authorized by the consumer.

(3) A repairer shall not charge a fee for an

estimate if the work or repairs in question are authorized
and carried out.

(4) Despite subsection (3), a repairer may charge

a fee for an estimate if the repairer is unable to obtain,
without unreasonable delay, authorization to proceed
with the work or repairs and the goods are reassembled
 1979
2012 Consumer Protection No. 46
before being worked on or repaired so that the goods can
be moved in order to free repair space.

46. (1) No repairer shall charge for any work or Authorization

required.
repairs unless the consumer authorizes the work or
repairs.

(2) No repairer shall charge, for work or repairs

for which an estimate was given, an amount that
exceeds the estimate by more than ten per cent.

47. If an authorization required by section 44, 45 Authorization

not in writing.
or 46 is not given in writing, the authorization is not
effective unless it is recorded in a manner that meets the
prescribed requirements.

48. A repairer shall post the prescribed signs in Posting signs.

accordance with the prescribed requirements.

49.(1) Every repairer shall offer to return to the Return of parts

consumer all parts removed in the course of work or
repairs and shall return all such parts unless advised
when the work or repairs are authorized that the
consumer does not require their return.

(2) Every repairer shall keep parts removed from

goods being repaired separate from the parts removed
from any other goods and, if their return is requested by
the consumer, shall return the parts in a clean container.

(3) Subsections (1) and (2) do not apply to—

(a) parts for which there has been no charge

for the part or for work on or repair to
the part; or
 1980
No. 46 Consumer Protection 2012
(b) parts replaced under warranty whose
return to the manufacturer or distributor
is required.

Invoice. 50. The repairer shall, on completion of work or

repairs, deliver to the consumer an invoice containing
the prescribed information in the prescribed manner.

Warranty for 51.(1) On the repair of a vehicle, every repairer

vehicles.
shall be deemed to warrant all new or reconditioned
parts installed and the labour required to install them for
a minimum of ninety days or five thousand kilometres,
whichever comes first, or for such greater minimum as
may be prescribed.

(2) The warranty in subsection (1). is in addition

to the deemed and implied conditions and warranties set
out in section 5.

(3) The person having charge of a vehicle that

becomes inoperable or unsafe to drive because of the
failure or inadequacy of work or repairs to which a
warranty under this section applies may, when it is not
reasonable to return the vehicle to the original repairer,
have the failure or inadequacy repaired at the closest
facility available for the work or repairs.

(4) When work or repairs are made under

subsection (3), the person entitled to a warranty under
this section is entitled to recover from the original
repairer the original cost of the work or repairs and
reasonable towing charges.

(5) A consumer who subjects any vehicle part to

misuse or abuse is not entitled to the benefit of the
 1981
2012 Consumer Protection No. 46
warranty on that part.

(6) No repairer shall refuse to reimburse a

consumer because of the operation of subsection (5)
unless the repairer has reasonable grounds to believe
that the part under warranty was subjected to misuse or
abuse.

(7) A consumer who is seeking reimbursement

under this section shall return, upon the request and at
the expense of the original repairer, the defective parts
to the original repairer unless, in the circumstances, it is
not reasonably possible for the consumer to do so.

(8) An original repairer who is required to make a

payment under this section is entitled to recover from
the supplier of a defective part any amount paid to the
consumer under subsection (4).

52. No repairer shall give an estimate or charge an Consistent cost.

amount for work or repairs that is greater than that
usually given or charged by that repairer for the same
work or repairs merely because the cost is to be paid,
directly or indirectly, by an insurance company.

PART VII -CREDIT AGREEMENTS

53. (1) This Part does not apply to a supplier credit Application of
Part.
agreement that—

(a) requires the borrower to make payment

in full in a single payment within a
certain period after the supplier delivers
a written invoice or statement of account
to the borrower;
 1982
No. 46 Consumer Protection 2012

(b) is unconditionally interest-free during

the period for payment described in
paragraph (a);

(c) does not provide for any non-interest

charges;

(d) is unsecured apart from liens on the

goods or services supplied through the
agreement that may arise by operation of
law; and

(b) the supplier cannot assign in the

ordinary course of business other than as
security.

(2) If a loan broker assists a consumer to obtain

credit or a loan of money and the creditor is not in the
business of extending credit or lending money, the
obligations that this Part would impose on a lender shall
be deemed to be obligations of the loan broker and not
the creditor, except as prescribed.

Agreement for 54. (1) Notwithstanding any other provision of this

credit card.
Act, a consumer who applies for a credit card without
signing an application form or who receives a credit
card from a credit caid issuer without applying for it
shall be deemed to have entered into a credit agreement
with the issuer with respect to the card on first using the
card.

(2) A consumer described in subsection (1) is not

liable to pay the lender any amount in respect of the
credit card received in the circumstances described in
that subsection until the consumer uses the card.


1983
2012 Consumer Protection Nu. 46

55. A borrower is not liable for any amount that is Limiting

greater than the prescribed maximum for unauthorized liability for
unauthorized
charges under a credit agreement for open credit. charges.

56. A borrower under a credit agreement is not Consequence of

liable to pay the lender, non-disclosure.

(a) the cost of borrowing under a credit

agreement if the borrower receives no
statements required by this Part; or

(b) as part of the cost of borrowing, any

amount in excess of the amounts
specified in the statements that this Part
requires to be delivered to the borrower
in respect of the agreement.

57.- If there is an error in a statement of account Correcting

issued under a credit agreement for open credit, the errors.
lender shall correct the error in accordance with the
prescribed requirements.

58.(1) A borrower who is required under a credit Required

agreement to purchase insurance may purchase it from insurance.
any insurer who may lawfully provide that type of
insurance, except that the lender may reserve the right to
disapprove, on reasonable grounds, an insurer selected
by the borrower.

(2) Aitenner who offers to provide or to arrange

insurance requited under a credit agreement shall at the
same time disclose to the borrower in writing that the
borrower may purchase the insurance through an agent
or an insurer of the borrower's choice.

59.(1) A borrower may terminate an optional Termination of

 1984
No. 46 Consumer Protection 2012
optional service of a continuing nature provided by the lender or
services.
an associate of the lender on giving thirty days notice or
such shorter period of notice as is specified in the
agreement under which the service is provided.

(2) A borrower who terminates an optional

service in accordance with subsection (1) is not liable
for charges relating to any portion of the service that has
not been provided at the time of termination and is
entitled to a refund of amounts already paid for those
charges.

(3) Notice under subsection (1) may be given in

any way as long as it indicates the intention of the
borrower to terminate the optional service and section
76 applies, with necessary modification, to such notice.

Deferral of 60. (1) If the lender under a credit agreement invites

payments.
the borrower to defer making a payment that would
otherwise be due under the agreement, the invitation
must disclose whether or not interest will accrue on the
unpaid amount during the period of the deferral and, if
interest will accrue, the invitation must also disclose the
interest rate.

(2) If the lender does not comply with subsection

(1), the lender shall be deemed to have waived the
interest that would otherwise accrue during the period.

Default charges. 61. (1) A lender is not entitled to impose on a

borrower under a credit agreement default charges other
than—

(a) reasonable charges in respect of legal

costs that the lender incurs in collecting
or attempting to collect a required
 1985
2012 Consumer Protection No. 46
payment by the borrower under the
agreement;

(b) reasonable charges in respect of costs,

including legal costs, that the lender
incurs in realizing a security interest or
protecting the subject-matter of a
security interest after default under the
agreement; or

(c) reasonable charges reflecting the costs

that the lender incurs because a cheque
or other instrument of payment given by
the borrower under the agreement has
been dishonored.

62. (1) A borrower is entitled to pay the full Prepayment.

outstanding balance under a credit agreement at any
time without any prepayment charge or penalty.

(2) If a borrower prepays the full outstanding

balance under a credit agreement for fixed credit, the
lender shall refund to the borrower or credit the
borrower with the portion, determined in the prescribed
manner, of the amounts that were paid by the borrower
under the agreement or added to the balance under the
agreement and that form part of the cost of borrowing,
other than amounts paid on account of interest.

(3) A borrower is entitled to prepay a portion of

the outstanding balance under a oredit agreement for
fixed credit on any scheduled date of the borrower's
required payments under the agreement or once in any
Month without any prepayment charge or penalty.

(4) A borrower who makes a payment under

 1986
No. 46 Consumer Protection 2012
qubsez:lun (3) is not entitled to the refund or credit
described in subsection (2).

Disclosure 63. No lender shall make representations or cause

representation.
representations to be made with respect to a credit
agreement, whether orally, in writing or in any other
form, unless the representations comply with the
prescribed requirements.

Disclosure of 64.(1) If the borrower pays or is liable to pay a

brokerage fee.
brokerage fee to a loan broker, either directly or through
a deduction from an advance, the initial disclosure
statement for the credit agreement must disclose the
amount of brokerage fee.

(3) If a loan broker has delivered an initial

disclosure statement to the borrower, the lender may
adopt it as his, her or its own initial disclosure statement
or may elect to deliver a separate initial disclosure
statement to the borrower.

Initial 65.(1) Every lender shall deliver an initial

disclosure
statement. disclosure statement for a credit agreement to the
borrower at or before the time that the borrower enters
into the agreement, unless the lender has adopted the
loan broker's initial disclosure statement as his, her or
its own.

(2) The initial disclosure statement for a credit

agreement for fixed credit shall .disclose the prescribed
information.

(3) The initial disclosure statement for a credit

agreement for open credit shall disclose the prescribed
information.
 1987
2012 Consumer Protection No. 46
(4) If a loan broker assists in arranging a credit
agreement, the initial disclosure statement shall disclose
the prescribed information.

66. (1) If the interest rate in a credit agreement for Subsequent

fixed credit is a floating rate, the lender shall, at least disclosure on
fixed credit.
once every twelve months after entering into the
agreement, deliver to the borrower a disclosure
statement for the period covered by the statement
disclosing the prescribed information.

(2) If the interest rate in a credit agreement for

fixed credit is not a floating rate and the agreement
allows the lender to change the interest rate,, the lender
shall, within thirty days after increasing the annual
interest rate to a rate that is at least 1 per cent higher
than the rate most recently disclosed to the borrower,
deliver to the borrower a disclosure statement disclosing
the prescribed information.

(3) The lender shall deliver to the borrower notice

if the amount of the borrower's scheduled payments
required by a credit agreement for fixed credit is no
longer sufficient to cover the interest accrued under the
agreement because the principal set out in the agreement
has increased as a result of default charges or the failure
of the borrower to make payments under the agreement.

(4) The notice under subsection (3) shall be in

writing, shall disclose the situation and shall be
delivered within thirty days after the point when the
amount of the scheduled payments is no longer
sufficient to cover the accrued interest.

(5) Subject to subsection (6), if the parties have

agreed to amend a credit agreement for fixed credit and
 1988
No. 46 Consumer Protection 2012
the amendment changes any of the information
prescribed under subsection (2), the lender shall, within
thirty days after the amendment is made, deliver to the
borrower a supplementary disclosure statement setting
out the changed information.

(6) If an amendment to a credit agreement

consists only of a change in the schedule of required
payments by the borrower, it is not necessary for the
supplementary disclosure statement to disclose any
change to the annual percentage rate or any decrease in
the total required payments by the borrower or the total
cost of borrowing under the agreement.

Subsequent 67. (1) Subject to subsection (2), the lender under a

disclosure on
open credit. credit agreement for open credit shall deliver a statement
of account to the borrower at least once monthly after
entering into the agreement.

(2) The lender is not required to deliver a

statement of account to the borrower at the end of any
period when, since the most recent statement of account,
the borrower has received no advances and made no
payments under the agreement and—

(a) at the end of the period the outstanding

balance payable by the borrower under
the agreement is zero; or

(b) the borrower is in default and has been

notified that the lender has cancelled or
suspended his or her right to obtain
advances under the agreement and has
demanded payment of the outstanding
balance.
 1989
2012 Consumer Protection No. 46
(3) The lender shall provide to the borrower a
telephone number at which the borrower can make
inquiries about the borrower's account during the
lender's ordinary business hours without incurring any
charges for the telephone call.

(4) A statement of account for a credit agreement

for open credit shall disclose the prescribed
information.

(5) A lender under a credit agreement for open

credit who, pursuant to the agreement, changes the
interest rate under the agreement shall deliver a
disclosure statement to the borrower disclosing the
change-

(a) in the next statement of account after the

change, in the case of a credit agreement
that is not for a credit card; and

(b) at least thirty days before the change, in

the case of a credit agreement that is for
a credit card where the interest rate is
not a floating rate.

(6) Subject to subsection (7), if the parties have

agreed to amend a credit agreement for open credit and
the amendment changes any of the information
prescribed under subsection (4), the lender shall, within
thirty days after the amendment is made, deliver to the
borrower a supplementary disclosure statement setting
out the changed information.

(7) If the parties have agreed to amend a credit

agreement for open credit in respect of a credit card and
the amendment changes any of the information
 1990
No. 46 Consumer Protection 2012
prescribed under section 65 (3), the lender shall deliver
to the borrower a supplementary disclosure statement
setting out the changed information—

(a) within thirty days after the amendment is

made, if the change is not a material change,
as prescribed; and

(b) at least thirty days before the amendment is

made, if the change is a material change, as
prescribed.

Assignment of 68.(l) If a person assigns a negotiable instrument

negotiable
instrument. given to secure credit or a loan of money, the person
shall deliver to the assignee with the negotiable
instrument a copy of the statement required by section
65 and, if the person is a supplier creditor, a copy of the
consumer agreement for the goods or services that were
obtained with the fixed credit.

(2) Every assignee of a negotiable instrument who

reassigns the instrument shall deliver to the person to
whom the instrument is being reassigned the statement
and the consumer agreement, if any, received by the
assignee in respect of the instrument.

(3) If an assignee of a negotiable instrument to

which subsection (2) applies is entitled to recover on the
instrument from the maker, the maker is entitled to be
indemnified by any assignor of the instrument who has
not complied with subsection (1) or (2), as the case may
be.

Obligations of 69. (1) If a lender assigns to a person the lender's

assignee of
lender. rights in connection with the extension of credit or the
lending of money to a borrower, the assignee has no
 1991
2012 Consumer Protection No. 46
greater rights than, and is subject to the same
obligations, liabilities and duties as, the assignor in
connection with the extension of the credit or the
lending of the money, and the provisions of this Act
apply equally to such assignee.

(2) Despite subsection (1), a borrower shall not

recover from, or be entitled to set off against, an
assignee of the lender an amount greater than the
balance owing under the consumer agreement at the
time of the assignment, and, if there have been two or
more assignments, the borrower shall not recover from
an assignee who no longer holds the benefit of the
consumer agreement an amount that exceeds the
payments made by the borrower to that assignee.

70. (1) If an assignor of a negotiable instrument is Order to pay

convicted of a contravention of section 65, the High indemnity.
Court making the conviction may order that the person
convicted is liable to indemnify the maker.

(2) If an indemnity order is made under

subsection (1) in favor of a person who is or becomes
liable under a judgment of a court to an assignee of the
negotiable instrument in respect of which the indemnity
order was made, the person entitled to the indemnity
may file the indemnity order in the court office of the
court in which the judgment was issued.

(3) Upon the filing of the indemnity order, the

local registrar or clerk of the court shall issue a default
judgment in favor of the person entitled to the indemnity
and against the person required by the indemnity order
to give the indemnity, and the amount of the default
judgment shall be the amount of the judgment referred
to in subsection (1) and costs together with the costs of
 1992
No. 46 Consumer Protection 2012
issuing the default judgment, or such lesser amount as
the person entitled to the indemnity by requisition
requests.

(4) Upon application, the court in which the

default judgment is issued may set aside the default
judgment or may determine the amount of the
indemnity or make an order of reference for the purpose
and may vary the amount of the default judgment.

Allowance for 71. (1) If the amount to be paid by a consumer

trade-in subject
to adjustment.
under a consumer agreement is determined after an
allowance for a trade-in and is stated in the consumer
agreement to be subject to adjustment after the existence
or amount of liens against the trade-in is ascertained or
confirmed, any statements of the terms of payment and
the cost of borrowing, as required under this Act, shall
be based upon the amount as determined upon the
information provided by the consumer.

(2) If there is an additional adjustment to the

amount to be paid by a consumer under a consumer
agreement to which subsection (1) applies after the
adjustment under subsection (1), the consumer
agreement shall not be adjusted to change—

(a) the percentage rate by which the cost of

borrowing is expressed;

(b) the total number of installments required

to pay the total indebtedness; or

(c) the price shown in the consumer

agreement.


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Consumer Protection No. 46
PART VIII - LEASING

72. This Part applies to— Application of

Part.

(a) leases for a fixed term of four months or

more;

(b) leases for an indefinite term or that are

renewed automatically until one of the
parties takes positive steps to terminate
them; and

(c) residual obligation•leases.

73. (1) Any person who makes representations or Representations.

causes representations to be made about the cost of a
lease, whether orally, in writing or in any other form,
shall do so in accordance with the prescribed
requirements.

(2) Every lessor shall deliver a disclosure

statement for a lease to the lessee before the earlier of—

(a) the time that the lessee enters into the

lease; and

(b) the time that the lessee makes any

payment in connection with the lease.

(3) The disclosure statement for a lease shall

disclose the prescribed information.

74. (1) The maximum amount of compensation that Disclosure
may be charged to a lessee by a lessor for termination of statement.
a lease before the end of the lease term may be limited
 1994
No. 46 Consumer Protection 2012

as prescribed.

(2) The maximum liability of the lessee at the end

of the term of a residual obligation lease after returning
the leased goods to the lessor shall be the amount
calculated in the prescribed manner.

PART IX-PROCEDURES FOR CONSUMER

REMEDIES

Application of 75. This Part does not apply to remedies claimed in

Part.
respect to unfair practices under Part III.

Form of 76.(1) If this Act requires a consumer to give notice

consumer
notice.
to a supplier to request a remedy, the consumer may do
so by giving notice in accordance with this section.

(2) The notice may be expressed in any way, as

long as it indicates the intention of the consumer to seek
the remedy being requested and complies with any
requirements that may be prescribed.

(3) Unless the regulations require otherwise, the

notice may be oral or in writing and may be given by
any means.

(4) If notice in writing is given other than by

personal service, the notice shall be deemed to be given
when sent.

(5) The consumer may send or deliver the notice

to the address set out in a consumer agreement or, if the
consumer did not receive a written copy of a consumer
agreement or the address was not set out in the written
agreement, the consumer may send or deliver the
notice—
 1995
2012 Consumer Protection No. 46

(a) to any address of the supplier on record;

or

(b) to an • ss of the supplier known by

41 GI

the consumer.

77.(1) A consumer agreement is not binding on the Consumer

consumer unless the agreement is made in accordance agreements not
binding.
with this Act and the Regulations.

(2) Despite subsection (1), a court may order that

a consumer is bound by all or a portion or portions of a
consumer agreement, even if the agreement has not been
made in accordance with this Act or the Regulations, if
the court determines that it would be inequitable in the
circumstances for the consumer not to be bound.

(3) The provisions of this section shall not apply to

those agreements made before the coming into force of
this section.

78. (1) If a consumer has a right to cancel a Cancellation of

consumer agreement under this Act, the consumer may consumer
agreement.
cancel the agreement by giving notice in accordance
with section 76.

(2) The cancellation takes effect when the

consumer gives notice.

79.(1) The cancellation of a consumer agreement in Effect of

accordance with this Act operates to cancel, as. if they cancellation.
never existed—

(a) the consumer agreement;

 1996
No. 46 Consumer Protection 2012
(b) all related agreements;

(c) all guarantees given in respect of money

payable under the consumer agreement;

(d) all security given by the consumer or a

guarantor in respect of money payable
under the consumer agreement; and

(e) all credit agreements, as defined in Part

VII, and other payment instruments,
including promissory notes—

(i) extended arranged or facilitated by

the person with whom the consumer
reached the consumer agreement; or

(ii) otherwise related to the consumer

agreement.

(2) The provisions of this section shall not apply to

those agreements made before the coming into force of
this section.

Obligations on 80. (1) If a consumer cancels a consumer

cancellation.
agreement, the. supplier shall, unless the contrary is
provided for in the agreement, in accordance with the
prescribed requirements—

(a) refund to the consumer any payment

made under the agreement or any related
agreement; and

(b) return to the consumer in a condition

substantially similar to when they were
delivered all goods delivered under a
 1997
2012 Consumer Protection No. 46
trade-in arrangement or refund to the
consumer an amount equal to the trade-
in allowance.

(2) Upon canceling a consumer agreement, the

consumer, in accordance with the prescribed
requirements and in the prescribed manner, shall permit
the goods that came into the consumer's possession
under the agreement or a related agreement to be
repossessed, shall return the goods or shall deal with
them in such manner as may be prescribed.

(3) If a consumer cancels a consumer agreement,

the consumer shall take reasonable care of the goods
that came into the possession of the consumer under the
agreement or a related agreement for the prescribed
period.

(4) The consumer owes the obligation described

in subsection (3) to the person entitled to possession of
the goods at the time in question.

(5) Compliance with this section discharges the

consumer from all obligations relating to the goods and
the consumer is under no other obligation, whether
arising by contract or otherwise, to take care of the
goods.

(6) If a consumer has cancelled a consumer

agreement and the supplier has not met the supplier's
obligations under subsection (1), the consumer may
commence an action.

(7) If a consumer has cancelled a consumer

agreement and has not met the consumer's obligations
under this section, the supplier or the person to whom
 1998
No. 46 Consumer Protection 2012

the obligation is owed may commence an action.

Illegal charges 81. If the consumer recovers an amount equal to

and payments.
the trade-in allowance under section 71 (1) and the title
of the consumer to the goods delivered under the trade-
in arrangement has not passed from the consumer, the
title to the goods vests in the person entitled to the goods
under the trade-in arrangement.

Illegal charges 82. (1) If a supplier has charged a fee or an amount

and payments.
in contravention of this Act or received a payment in
contravention of this Act, the consumer who paid the
charge or made the payment may demand a refund by
giving notice in accordance with section 76 within one
year after paying the charge or making the payment.

(2) A supplier who receives a notice demanding a

refund under subsection (1) shall provide the refund
within the prescribed period of time

(3) The consumer may commence an action in

accordance with section 84 to recover—

(a) the payment of a fee or an amount that

was charged by the supplier in
contravention of this Act; or

(b) a payment that was received by the

supplier in contravention of this Act..
fl

(4) This section and section 76 apply, with ,the

necessary modifications, to a person who is .not a
supplier, if the person has received a payment in
contravention of section 8.

Consumer' 83.(1) A consumer who has charged to a credit card

recourse on
credit card
charges.
 1999
2012 Consumer Protection Ne. 46
account all or any part of a payment described in
subsection (2) may request the credit card issuer to
cancel or . reverse the credit card charge . and any
associated interest or other charges.

(2) Subsection (1) applies to—

(a) a payment in respect of a consumer

agreement that has been cancelled under
this Act or in respect of any related
agreement;

(b) a payment that was received in

contravention of this Act;

(c) a payment in respect of a' fee or an

amount that was charged in
contravention of this Act; and

(d) a payment that was collected in respect

of unsolicited goods or services for
which payment is not required under
section 9.

(3) A consumer may make a request under

subsection (I) if the consumer has cancelled a. consumer
agreement or demanded a refund in accordance with this
Act, and the supplier has not refunded all of the payment
within the required period.

(4) A request under subsection (1) shall be in

writing, shall comply with the requirements thSt are
prescribed under section 76 (2), and shall be given to the
credit card issuer, in the prescribed period, in
accordance with section 76.
 2000
No. 46 Consumer Protection 2012
(5) The credit card issuer—

(a) shall, within the prescribed period,

acknowledge the consumer's request;
and

(b) if the request meets the requirements of

subsection (4), shall, within the
prescribed period—

(i) cancel or reverse the credit card

charge and any associated interest
or other charges; or

(ii) after having conducted an

investigation, send a written notice
to the consumer explaining the
reasons why the credit card issuer
is of the opinion that the consumer
is not entitled to cancel the
consumer agreement or to demand
a refund under this Act.

(6) A consumer may commence an action against

a credit card issuer to recover a payment and associated
interest and other charges to which the consumer is
entitled under this section.

(7) If a consumer charges all or part of a payment

described in subsection (2) to a prescribed payment
system, the consumer may request that the charge be
cancelled or reversed and this section applies with
necessary modifications to the cancellation or reversal
of such a charge.

Action in Court. 84. (1) If a consumer has a right to commence an

 2001
2012 Consumer Protection No. 46
action under this Act, the consumer may commence the
action in the appropriate Court.

(2) If a consumer is successful in an action, unless

in the circumstances it would be inequitable to do so, the
court shall order that the consumer recover—

(a) the full payment to which he or she is

entitled under this Act; and

(b) all goods delivered under a trade-in

arrangement or an amount equal to the
trade-in allowance.

(3) In addition to an order under subsection (2),

the court may order exemplary or punitive damages or
such other relief as the court considers proper.

85. If a consumer is required to give notice under Waiver of

this Act in order to obtain a remedy, a court may notice.
disregard the requirement to give the notice or any
requirement relating to the notice if it is in the interest of
justice to do so.

86. (1) A person who obtains information in the Confidentiality.

course of exercising a power or carrying out a duty
related to the administration of this Act or the
Regulations shall preserve secrecy with respect to the
information and shall not communicate the information
to any person except—

(a) as may be required in connection with a

proceeding under this Act or in
connection with the administration of this
Act or the Regulations;
 2002
No. 46 Consumer Protection 2012

(b) to a ministry, department or agency of a

government engaged in the
administration of legislation that protects
consumers or to any other entity to which
the administration of legislation that
protects consumers has been assigned;

(c) to a prescribed entity or organization, if

the purpose of the communication is
consumer protection;

(d) to a law enforcement agency;

(e) to his, her or its counsel; or

(f) with the consent of the person to whom

the information relates.

(2) Except in a proceeding under this Act, no

person shall be required to give testimony in a civil
proceeding with regard to information obtained in the
course of exercising a power or carrying out a duty
related to the administration of this Act or the
Regulations.

Disclosure of 87. (1) If a supplier is required to disclose

information.
information under this Act, the disclosure shall be clear,
comprehensible and in accordance with the standards set
under the Standards Act.

(2) If a supplier is required to deliver information to

a consumer under this Act, the information must, in
addition to satisfying the requirements in subsection (1),
be delivered in a form in which it can be understood by
the consumer.


2003
2012 Consumer Protection No. 46
88. (1) Any term or acknowledgment in a consumer Limitation of
agreement or a related agreement that requires or has the arbitration.
effect of requiring that disputes arising out of the
consumer agreement be submitted to arbitration is
invalid insofar as it prevents a consumer from exercising
a right to commence an action in the High Court given
under this Act.

(2) Despite subsection (1), after a dispute over

which a consumer may commence an action in the High
Court arises, the consumer, the supplier and any other
person involved in the dispute may agree to resolve the
dispute using any procedure that is available in law.

(3) A settlement or decision that results from the

procedure agreed to under subsection (2) is as binding
on the parties as such a settlement or decision would be
if it were reached in respect of a dispute concerning an
agreement to which this Act does not apply.

PART X - THE KENYA CONSUMERS

PROTECTION ADVISORY COMMITEE.

89. (1) There is established a committee to be Establishment

known as the Kenya Consumers Protection Advisory of the
Committee.
Committee.

(2) The Committee shall consist of -

(a) a chairperson elected by members from

among the members referred to in
 2004

No. 46 Consumer Protection 2012

paragraph (d)(1);

(b) the Permanent Secretary in the ministry

for the time being responsible for
matters relating to trade and industry;

(c) the Attorney-General;

(d) the following persons appointed by the

Minister-

(i) four persons nominated by

accredited consumer
organizations in such manner
as may be prescribed;

(ii) one person nominated by the

Kenya Bureau of Standards;

(iii)one person nominated by the

Kenya Medical Association;

(iv)one person nominated by the

Kenya Association of
Manufacturers;

(v) one person with experience in

banking, accounting,
economics or insurance
matters; and

(vi) one person nominated by the

Law Society of Kenya.

(3) The conduct and regulation of the business and affairs

of the Committee shall be as prescribed by the Cabinet
 2005
2012 Consumer Protection No. 46
Secretary in consultation with the Committee.

(4) The Ministry shall provide the secretariat to the

Committee.

90. The functions of the Committee shall be - Functions of the

Committee.

(a) advising the Cabinet Secretary and ensuring

relevant action on all aspects relating to
consumer protection;

(b) formulation of policy relating to this Act and

legislative proposals in the interest of
consumers and the modification,
consolidation or updating of legislation
providing protection to consumers 'in the
areas covered under, or related to this Act;

(c) the co-ordination and networking of

consumer activities and the development of
linkages with consumer organizations and
the competent authorities and agencies
locally and outside Kenya for the protection
of consumer interests;

(d) promotion or participation in consumer

education programmes, locally and
elsewhere, and activities, the dissemination
of consumer issues with a view to proposing
corrective measures;

(e) providing advice to consumers on their rights

and responsibilities under appropriate laws,
and making available to consumers general
information affecting the interest of .
 2006

No. 46 Consumer Protection 2012
consumers;

(f) creating or facilitating the establishment of

conflict resolution mechanisms. on consumer
issues, investigation of any complaints
received regarding consumer issues, and
where appropriate, referring the complaint to
the appropriate competent authority and
ensuring that action has been taken by the
competent authority to whom the complaint
has been referred;

(g) working in consultation with the Chief

Justice, County governors and other relevant
institutions on the establishment of dispute
resolution mechanisms;

(h) monitoring and keeping under review the

trading and business practices relating to the
supply of goods and services to consumers
and to activities related or ancillary thereto;

(i) undertaking or commissioning any study or

research which may be necessary to promote
consumer protection and thereby publish the
State of • National and County Consumer
Protection Annual Report;

(j) monitoring the working and enforcement of

laws that directly or indirectly affect the
consumer;

(k) drawing up and reviewing consumer

protection directives and minimum service
standards for submission to the Cabinet
Secretary;
 2007
2012 Consumer Protection No. 46
(1) monitoring the development of consumer
associations and drawing up and reviewing
the rules of practice for registered consumer
associations;

(m)examining and determining whether a

consumer association has the requirements to
be an accredited consumer organization in
accordance with this Act; and

(n) doing anything or all things that are

necessary, expedient or convenient for or in
connection with the performance of its
functions under this Act.

PART XI - GENERAL

91.(1) No aircraft shall fly within Kenyan airspace Compliance

unless such aircraft meets the safety requirements under with Cap. 394.
the Civil Aviation Act.

(2) Passenger air carriers - shall provide such

services including overnight accommodation or meals as
may be prescribed to passengers whose flights have
been cancelled or are subject to long delays.

92. Any person convicted of an offence under this General penalty.

Act for which no penalty is provided shall be liable to a
fine not exceeding one million shillings, or to
imprisonment for a term not exceeding three years, or to
both.

93. (1) The Cabinet Secretary shall make regulations Regulations.

for the better carrying out of the purposes of this Act.
 2008
No. 46 Consumer Protection 2012
(2) Without prejudice to the generality of
subsection (1), the regulations made under this section
shall-

(a) prescribe anything that is required to be

prescribed under this Act;

(b) provide for passenger rights and the

standards of service by air carriers including
access to necessary services while on a
grounded air carrier, customer complaints,
notification of delays, cancellations,
overbooking, baggage concerns,
compensation for passengers and the right to
deplane where such rights are infringed.

(3) There may be annexed to a breach of the

regulations made under this section a penalty of a fine
not exceeding the sum of five hundred thousand
shillings or imprisonment for a term not exceeding two
years or both such fine and imprisonment.

Representation. 94. There shall be consumer representation on all

regulatory bodies and the respective appointing
authorities shall have due regard to accredited consumer
organizations and the Advisory Committee in making
such appointments.