By Pravin Bowry

Kenya: Generally, instances of injustices and wrongdoings in Kenya are associated with governmental, State and public service agencies. The blatant and unethical exploitation of ordinary citizens by the private, monopolistic and big time corporate operators in major sectors of economic activities rarely surfaces in the public domain.

More often than not, consumers of various services go on with their lives without realising that they are being exploited. This is because of taking things for granted or due to ignorance or the fact that it may be cumbersome to exert a right.

Hospitals, doctors and medical laboratories, water and electricity service companies, insurance companies, banks and credit and debit card providers and many others are using newfound computer operations to enrich themselves to unbelievable levels.

Here are some real life, substantiated stories.

A patient in a reputable university hospital was debited for a simple day surgical procedure where no anaesthetist was involved. A named anaesthetist charged in excess of Sh45,000, which the patient had to pay before discharge.

On questioning, and only after taking up the matter aggressively, a refund was made with no apology. The conduct of the hospital, the accounting officer and even the anaesthetist whose name appeared on the invoice not only smacked of exploitation but also of criminality. And this is the same hospital that charges Sh50 for a surgical glove it sources for little over Sh5! Go to most high-powered consultants and the first question the receptionist asks: “Are you insured?” Insured and uninsured patients have a wavering scale of charges!

The monopolistic power suppliers levy rounding up charges, fuel cost charges, fixed charges, inflation adjustments, WARMA levies, ERC levies, REP levies and VAT.  And after disconnection these days, it has started demanding unilaterally additional deposits, totally disregarding the contract.

A bank issuing a credit card changed its computer system and wrongly debited a customer. Only after questioning was it confirmed that there was an error and the customer credited after a few months of animated emails.

Water supply companies are in the habit of disconnecting at will. In one instance, a company claimed thousands of shillings yet the holder of the account had left the house more than 10 years before the company claimed that the meter was being used. There was no answer to the query on why the supply was never disconnected.

Reputable hotels and restaurants habitually charge for drinks or food not consumed.

Citizens need to be proactive and each citizen must cultivate a habit of scrutinising all statements of accounts – and when errors or mistakes or blunders are discovered, to aggressively seek redress in form of credit or refunds.

So what are the rights of consumers and how should they seek and get remedies? The 2012 Consumer Protection Act equips consumers with the right to institute legal proceedings on behalf of a class of persons in relation to the supply of any goods and services, a right that cannot be superseded by even an express contract between the supplier and consumer.

Suppliers are deemed to warrant that the goods are in reasonably merchantable condition; they are not allowed to charge anything exceeding 10 per cent of the estimates they give beforehand and in the event of any ambiguities in a consumer agreement, the same are to be interpreted to the consumer’s benefit.

Even the Constitution provides that consumers have a right to goods and services of reasonable quality, information necessary for them to gain the benefit of the goods and services, protection of their health and safety as well as compensation for loss or injury occasioned by defects in goods and services.

The issue of unfair practices manifesting in terms of false, misleading or deceptive representations and unconscionable representations, for instance, by grossly increasing prices, is expressly prohibited under the Act.

Full disclosure, especially with regard to internet agreements, has been emphasised. Credit arrangements are also provided for in the Act and specific reference is made to what is supposed to be charged in case of default.

There is also an outline of the procedures involved in getting consumer remedies. The consumer has the right to cancel a consumer agreement by giving notice in any manner provided it indicates the intention of the consumer. This cancellation operates as though the agreement never existed. The court can also, when it deems fit, do away with the requirement of notice.

The Kenya Consumers Protection Advisory Committee is established under the law. Some of the committee’s functions are; formulation of policy, co-ordination and networking of consumer activities, monitoring and enforcement of consumer laws and reviewing trading and business practices relating to supply of goods and services.

Gazetting of the nine committee members was done on December 20, 2013, as per Gazette Notice No. 15439, but it has yet to make its presence felt in the commercial sector.

The clarion call to the citizens, therefore, is to be watchful, stand up, and fight for their rights or else be prepared to be trampled on by the overpowering exploiters.

The writer is a lawyer.

bowryp@hotmail.com