Warranty rights are one of the most important consumer protections under Kenyan law. Whether purchasing electronics, motor vehicles, household goods or professional services, consumers are entitled to certain minimum standards of quality and fitness. In this article, we examine the implied warranties and conditions contained in the Sale of Goods Act and the Consumer Protection Act, including the meaning of merchantable quality, fitness for purpose, sale by description and the legal limits of exclusion clauses.
Implied Warranties and Conditions under the Sale of Goods Act
The Sale of Goods Act (Cap. 31), though enacted in 1930 and commenced on 1 October 1931, remains the foundational legislation for contracts for the sale of goods in Kenya. Part II of the Act addresses conditions and warranties that are implied into contracts of sale, ensuring that certain minimum standards apply to all transactions.
(i)Title, Quiet Possession and Freedom from Encumbrances
Section 14 provides that in a contract of sale, unless the circumstances show a different intention, there is:
(a) an implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass;
(b) an implied warranty that the buyer shall have and enjoy quiet possession of the goods;
(c)an implied warranty that the goods shall be free from any charge or encumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made.
These provisions ensure that the seller has good title to the goods being sold and that the buyer will not be disturbed in their possession or face claims from third parties. It is important to note that the implied conditions under section 14 apply unless the circumstances of the contract show a different intention, reflecting the principle of freedom of contract. See the case of Prudential Printers Limited v Carton Manufacturers Limited [2012] KEHC 3626 (KLR).
(ii) Implied Conditions as to Quality and Fitness
Section 16 addresses the quality and fitness of goods, stating that:
“Subject to the provisions of this Act and of any Act in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows—”
This general rule, which posits no implied warranty as to quality or fitness, reflects the common law principle of caveat emptor (let the buyer beware). However, the section creates important exceptions that protect buyers in defined circumstances.
Exception (a): Fitness for Particular Purpose
Section 16(a) provides that where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether the seller is the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for that purpose.
This exception applies where:
- The buyer makes known the particular purpose to the seller;
- The circumstances show that the buyer relies on the seller’s skill or judgment; and
- The goods are of a description that the seller supplies in the ordinary course of business.
In People’s Travel Agency Limited v Musiara Limited [2001] KEHC 688 (KLR), the court applied this principle, holding that mineral water supplied for human consumption was required to be fit for that purpose, and evidence from the Kenya Bureau of Standards showing bacterial contamination rendered the goods unfit. The court noted that the seller was fully aware of the purpose of the purchase.
The exception does not apply to a contract for the sale of a specified article under its patent or other trade name, as the proviso to section 16(a) states: “Provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose.” This proviso means that where a buyer asks for a specific product by its trade name, but the seller is aware of the buyer’s purpose and the buyer relies on the seller’s skill, the condition may still apply. The mere fact that a product is sold under a trade name does not automatically exclude the condition.
Exception (b): Merchantable Quality
Section 16(b) provides that where goods are bought by description from a seller who deals in goods of that description (whether the seller is the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality.
“Merchantable quality” refers to goods that are of a standard that would be acceptable to a reasonable buyer, having regard to the description, price, and other relevant circumstances. In Wood Products Limited v Rufus Kithela Kobia [2019] KEHC 1422 (KLR), the court held that although “merchantable quality” is not defined by the Act, it is generally accepted that goods are of merchantable quality if they are reasonably fit for the purpose or purposes for which goods of that kind are generally bought.
Goods are not of merchantable quality if they are defective, damaged, or unsuitable for their ordinary purposes. In Best Cars Ltd t/a Impact Motors v Omoke & another [2025] KEHC 474 (KLR), the court addressed the merchantability of a used motor vehicle sold as being in proper condition. The court held that a 50-metre test drive could not expose latent defects, and when the vehicle required extensive repairs the day after purchase, it was not of merchantable quality. The court emphasised that the buyer was not an expert, and the “AS IS” clause in the sale agreement did not shield the seller from liability for latent defects that could not reasonably have been discovered upon ordinary inspection.
The proviso to section 16(b) states that if the buyer has examined the goods, there shall be no implied condition as regards defects which that examination ought to have revealed. This means that where the buyer examines the goods before purchase, the seller is not liable for defects that the examination ought to have revealed. However, the buyer is only required to discover defects that are reasonably apparent on inspection. Latent defects (those that are not apparent on reasonable examination) remain covered by the condition of merchantable quality. In Best Cars Limited, the court affirmed that limited examination of the vehicle did not waive the implied condition as to defects which could not be reasonably revealed upon such limited examination
Exception (c): Usage of Trade
Section 16(c) provides that an implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. This recognises that trade practices may create expectations beyond those stated in the Act.
Exception (d): Express Terms
Section 16(d) provides that an express warranty or condition does not negate a warranty or condition implied by the Act unless inconsistent therewith. This means that a seller who provides an express warranty may not use it to exclude the implied warranties unless the express warranty is fundamentally inconsistent with the implied terms.
The Sale of Goods Act and Conditions Implied by Description
Section 15 of the Sale of Goods Act provides that where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description. If the sale is by sample as well as by description, it is not sufficient that the bulk corresponds with the sample if the goods do not also correspond with the description.
This provision ensures that consumers receive what they ordered. A seller cannot sell a product described as leather if it is made of synthetic material, or sell a product described as handmade if it was mass-produced in a factory. The condition applies to sales made on the basis of description, even if the buyer has never seen the goods. This is particularly important in e-commerce, where consumers rely entirely on descriptions provided by the seller.
In Best Cars Limited, the court found that the sale of the motor vehicle was one of description, and the vehicle’s merchantability was captured in the sale agreement. The nature of sale by description meant that the vehicle was required to conform to the description of being in proper working condition.
Deemed Warranty of Merchantable Quality under the Consumer Protection Act
The Consumer Protection Act strengthens the protection available to consumers by creating a deemed warranty of merchantable quality. Section 5(1) provides:
“The supplier is deemed to warrant that the goods or services supplied under a consumer agreement are of a reasonably merchantable quality.”
This section goes further than the Sale of Goods Act in two important respects. First, it applies to services as well as goods, extending the implied condition of merchantability to transactions beyond the traditional sale of goods. Second, it applies to “supplier” rather than “seller,” encompassing a broader range of commercial actors, including those who lease, trade, or otherwise supply goods or services.
Section 5(2) provides that the implied conditions and warranties applying to the sale of goods under the Sale of Goods Act (Cap. 31) shall apply with necessary modifications to goods that are leased, traded, or otherwise supplied under a consumer agreement. This extends the protections of the Sale of Goods Act to transactions beyond sales, including leases and other forms of supply.
The Invalidity of Exclusion Clauses
The most significant provision in the Consumer Protection Act is section 5(3), which provides:
“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 (Cap. 31) or any condition or warranty under this Act is void.”
This section is a direct response to the practice of suppliers including clauses in contracts that attempt to exclude or limit liability for defects. Such clauses are common in standard form contracts, often buried in fine print or on notices displayed in shops. Under section 5(3), these clauses are void and have no legal effect.
Section 5(4) further provides that if a term that purports to negate or vary implied warranties is part 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.
This means that even if a consumer signs an agreement containing an exclusion clause, the clause is ineffective, and the consumer retains their full rights under the law. A supplier cannot avoid liability by pointing to a “no refunds” notice or a contractual provision that purports to exclude warranties.
The provision reflects a very important policy choice dictating that in consumer transactions, the implied warranties cannot be excluded. The law protects consumers from being pressured into accepting terms that would otherwise deny them basic protection.
The Tension Between Section 16 of the Sale of Goods Act and Section 5 of the Consumer Protection Act
There is an apparent tension between the Sale of Goods Act and the Consumer Protection Act. This tension, however, resolves into a clean, legally precise rule when one considers the distinct statutory scopes of the two enactments.
The Sale of Goods Act governs all contracts for the sale of goods, irrespective of the character of the parties. It is a general law of contract applicable to both commercial and consumer transactions. Critically, section 55 of the Sale of Goods Act provides that any right, duty, or liability arising under the Act by implication of law “may be negatived or varied by express agreement or by the course of dealing between the parties.” This provision codifies the principle of freedom of contract, allowing parties to exclude implied terms.
The Consumer Protection Act, by contrast, is a specific enactment designed to protect consumers. Its protections do not apply to all sales of goods; they apply only to “consumer agreements.” Section 2 of the Consumer Protection Act defines a “consumer agreement” as “an agreement between a supplier and a consumer in which the supplier agrees to supply goods or services for payment”. A “consumer” is defined broadly to include a person to whom goods are marketed, a person who enters a transaction with a supplier, or a user of the goods.
The protective provisions of the Consumer Protection Act, including the prohibition on excluding implied warranties, apply only where the buyer qualifies as a “consumer” under this definition. Where the buyer is a business acquiring goods for commercial purposes, the Consumer Protection Act does not apply, and the freedom-of-contract under the Sale of Goods Act regime remains operative.
The conflict arises because the Consumer Protection Act, as a later and specific enactment, takes away the flexibility afforded by the Sale of Goods Act in consumer transactions. Section 5(3) of the Consumer Protection Act provides:
“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 (Cap. 31) or any condition or warranty under this Act is void.”
By operation of the principle generalia specialibus non derogant (general provisions do not derogate from specific ones) and the ordinary rules of statutory interpretation favouring later enactments, the Consumer Protection Act prevails over the Sale of Goods Act to the extent of any inconsistency.
The practical effect is a binary rule:
- In Business-to-Consumer (B2C) Transactions: Where the buyer is a “consumer” under Section 2 of the Consumer Protection Act, the implied conditions and warranties cannot be excluded. Section 5(3) renders any exclusion clause void. This creates a statutory safety net that shields consumers from the consequences of unequal bargaining power.
- In Business-to-Business (B2B) Transactions: Where the buyer is not a “consumer” (i.e., is acquiring goods for commercial purposes), the implied conditions and warranties may be excluded by express agreement. The Consumer Protection Act does not apply, and the parties remain free to contract on terms they choose, including “as is” clauses and exclusions of merchantability. This is the position affirmed in Prudential Printers Limited v Carton Manufacturers Limited, where the court held that clauses stipulating goods were sold on an “as is where is” basis were sufficient to exclude the application of section 16 of the Sale of Goods Act.
This distinction is critical for business readers. For a business purchasing goods from another business (for instance, a manufacturer buying raw materials from a supplier) the protections of the Consumer Protection Act do not apply. The business buyer must negotiate express warranties or rely on the default protections of the Sale of Goods Act, which can be excluded. For a consumer purchasing goods from a business, however, the protections of the Consumer Protection Act are non-waivable.
The courts have not yet had occasion to resolve this tension definitively, but the constitutional foundation in Article 46 and the clear language of section 5(3) suggest that any attempt to exclude implied warranties in a consumer agreement is legally ineffective. Consumers cannot waive their constitutional rights, and suppliers cannot compel them to do so. In mixed transactions, where goods may be used for both personal and business purposes, the courts will examine the character of the buyer and the purpose of the acquisition to determine whether the Consumer Protection Act applies.
Next in the Series: Part III – Refund Rights: Returns, Rejection of Goods and Consumer Remedies