ADVOKS GLOBAL · KENYA
Consumer Protection Act
16. Rescinding agreement
Edition: 2022-12-31 · In force
16. Rescinding agreement
(1)Any agreement, whether written, oral or implied, entered into by a consumer after or while a person has engaged in an unfair practice may be rescinded by the consumer and the consumer is entitled to any remedy that is available in law, including damages.(2)A consumer is entitled to recover the amount by which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—(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.(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—(b)all related agreements;(c)all guarantees given in respect of money 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.