A Bill for AN ACT of Parliament to amend the Trade Descriptions Act; and for connected purposes ENACTED by the Parliament of Kenya, as follows—
| CLAUSE | CONTENT OF CLAUSE | OUR COMMENTS |
|---|---|---|
| Clause 2 | Section 2 of the Trade Descriptions Act (hereinafter referred to as the “principal Act”), is amended — | This proposed amendment recognises that commercial representations are increasingly made through websites, social media, online marketplaces and mobile applications rather than traditional print media. |
| (a) in subsection (1)— | ||
| (i) by inserting the words “whether in digital format or not” immediately after the words “price list” “advertisement”; | ||
| Clause 2 | (ii) by deleting the word “profession” in the definition of “trade” and substituting therefor the words “professional services whether for import or export”; | The amendment clarifies and expands the scope of the term trade by expressly referring to professional services relating to import or export, thereby aligning the definition with the commercial activities regulated under the Act. |
| Clause 2 | (iii) by deleting the definition of the word “goods” and substituting therefor the following new definition— | This amendment broadens the scope of the Act and aligns it more closely with modern commercial transactions involving movable and certain immovable interests. |
| “goods” means products that are bought and sold in business and includes ships and aircraft, things attached to land and growing crops; | ||
| Clause 2 | (iv) by inserting the following new definition in its proper alphabetical sequence— | The Bill introduces a statutory definition of digital platform covering online marketplaces, social media channels, crowdsourcing websites and applications. This is a significant amendment because many commercial transactions now occur through online platforms and digital intermediaries rather than traditional physical businesses. |
| “digital platform” means a business model that uses online infrastructure to facilitate interactions between groups and it includes social media channels, online marketplaces, crowdsourcing websites and applications; | ||
| Clause 2 | (b) in subsection (2), by inserting the words “or any other electronic media” immediately after the words “television broadcast” appearing in paragraph (b). | This amendment expands the Act beyond television broadcasts by recognising any other electronic media. This amendment reflects current methods of advertising and consumer engagement, ensuring that enforcement powers extend to online and electronic communications. |
| Clause 3 | Section 4 of the principal Act is amended in subsection (3), by inserting the words “or importer” immediately after the word “producer” appearing in paragraph (b)(i). | This amendment extends the application of the provision beyond producers to include importers. This reflects modern supply chains where imported goods constitute a significant proportion of products available in the Kenyan market. |
| Clause 4 | Section 7 of the principal Act is amended in subsection (1), by deleting the words “manufactured or produced” appearing in paragraph (a) and substituting therefor the words “manufactured, produced, processed or reconditioned”. | This amendment expands the categories of goods covered by the Act to include those that have been processed or reconditioned, in addition to goods that are manufactured or produced. This recognises that products may undergo significant modification without necessarily being newly manufactured. |
| Clause 5 | Section 8 of the principal Act is amended in subsection (1), by inserting the word “mileage,” immediately after the word “quantity” appearing in paragraph (a). | This amendment introduces mileage as a matter that may constitute a trade description. This is a significant addition, particularly in light of the increasing importation and sale of second-hand motor vehicles in Kenya. |
| Mileage is a key factor influencing a vehicle's value, use, condition, maintenance requirements and purchasing decisions. | ||
| Clause 6 | The principal Act is amended by inserting the following new section immediately after section 14— | This amendment establishes an evidentiary presumption intended to simplify prosecutions under the Act. Rather than requiring inspectors to prove that goods were intended for trade, the law presumes that goods found in commercial premises are held for trading purposes. This addresses practical enforcement challenges where traders may claim that goods found on their premises were for personal use or belonged to another person. |
| Presumption concerning possession. 14A. Where any goods bearing a false trade description are found in the possession or control of any person carrying on trade or are found on any premises, whether open or enclosed, which are used for trade, that person or the person in charge of those premises shall be deemed for the purpose of this Act to have the goods in his possession for trade and the onus of proving the contrary shall be upon the person. | ||
| Clause 7 | Section 15 of the principal Act is amended— | This amendment significantly strengthens the enforcement framework by empowering courts to impose business-related restrictions in addition to criminal penalties. Rather than relying solely on fines or imprisonment, courts may now prevent offenders from continuing to trade in goods connected to the offence. This represents a shift from punitive sanctions to preventive measures aimed at protecting consumers from repeat offenders. |
| (a) by renumbering the existing provision as subsection (1); | ||
| (b) by inserting the following new subsections immediately after subsection (1)— | ||
| (2) Where any person has been convicted of an offence under this Act, the court may, in addition to any other penalty to which the convicted person may be liable, make an order directing that the convicted person shall not be permitted to deal with or in the same goods or articles in respect of which the offence was committed. | ||
| (3) Where any person, pursuant to subsection (2), has had two previous convictions for similar offences under this Act, the court may make an order that, in addition to any other penalty to which the convicted person may be liable, the person shall be prohibited from continuing to deal with or in the same goods or business. | ||
| Clause 8 | The principal Act is amended by inserting the following new sections immediately after section 16— | This amendment codifies the principle of vicarious liability, ensuring that businesses cannot evade responsibility by attributing unlawful conduct solely to employees or agents. This reflects the commercial reality that many business decisions are implemented through staff acting on behalf of the business. |
| 16A. Any person who employs in his shop, store or other place of business any agent, servant or other person, shall be answerable for the acts or omissions of the agent, servant or other person in so far as they concern the business of the employer, and if such agent, servant or other person commits any act or makes any omission which is an offence if committed or made by such employer, such employer and his agent, servant or other person commits an offence and shall be jointly and severally liable upon conviction to the penalties provided under this Act. | ||
| 16B. A partner in a firm shall be answerable for the acts or omissions of any other partner in the same firm in so far as they concern that firm, and if any partner commits any act or makes any omission which is an offence under this Act, every partner in the firm shall be jointly and severally liable to the penalties provided by this Act. | ||
| Clause 9 | Section 21 of the principal Act is amended— | This clause significantly modernises the investigative framework under the Act by enhancing inspectors' powers while incorporating important procedural safeguards. The requirement for seizure notices and judicial authorisation for residential searches reflects a balanced approach between effective enforcement and the protection of constitutional rights. |
| (a) in subsection (1) by— | ||
| (i) inserting the following new paragraph immediately after paragraph (a)— | ||
| (aa) make random visits to traders’ premises within his area of jurisdiction for the purpose of inspecting, examining, testing and analysing goods therein to ensure compliance with the provisions of this Act; | ||
| (ii) inserting the words “take photographs, whether digital or otherwise, or video or oral recordings that may be used as evidence in any proceedings” immediately after the words “any such book or document” appearing in paragraph (b); | ||
| (b) in subsection (2), by deleting the words “section shall so inform” and substitute therefor the following words “Act shall complete a seizure notice in the form set out in the Schedule and leave a copy with”; | ||
| (c) by inserting the following new subsection immediately after subsection (2)— (2A) In case of goods stored on premises used only as a dwelling, an inspector shall apply to the court for a search warrant for purposes of performance of the duties imposed by this Act. | ||
| (d) in subsection (3), by inserting the words “from an inspector” immediately after the words “sworn information”. | ||
| Clause 10 | The principal Act is amended by inserting the following new sections immediately after section 21— Power of arrest, search and seizure. 21A. In addition to any powers conferred by this Act, an inspector— | This clause introduces new sections 21A and 21B, which confer additional enforcement powers on inspectors. The amendment substantially strengthens the investigative powers available to inspectors. It equips them with powers commonly found in modern regulatory legislation, enabling more effective detection and prosecution of offences. |
| (a) may stop and detain any ship, aircraft or vehicle, or may arrest, without warrant, any person suspected of an offence under this Act or being in possession of any goods and or documents in respect of which the inspector has reason to believe that such offence has been committed and may search any ship, aircraft, vehicle and any person so stopped and detained or arrested; | The powers to stop vehicles, search premises and seize evidence are likely to improve enforcement efficiency, particularly where offences involve the movement or concealment of goods. | |
| (b) may seize and detain goods and or things or documents in respect of which the inspector has reason to believe that an offence under this Act has been committed or which the inspector has reason to believe to be evidence of such an offence: Provided that no person shall be arrested under this section unless — | ||
| (i) the person obstructs or hinders an inspector; or | ||
| (ii) it appears to the inspector that such a person is likely to fail to answer to a summons; or | ||
| (iii) such person gives a name and address which the inspector has reason to believe to be false; or | ||
| (iv) such a person refuses to give his name and address to the inspector and to produce to the inspector satisfactory evidence of his identity; and | ||
| (c) may require any person owning, managing, controlling or otherwise running any digital platform— | ||
| (i) to avail regarding information any trader or advertiser operating on the platform who has been found to have contravened the provisions of this Act; | ||
| (ii) to remove from the platform any trader or advertiser who has been found to have contravened the provisions of this Act; and | ||
| (iii) to pull down any advertisement or offer made on the platform by a person who has been found to have contravened the provisions of this Act. | ||
| 21B. (1) An inspector may make such test purchase of goods as may appear expedient for the purposes of determining whether or not the provisions of this Act are being complied with. | ||
| (2) An inspector may, in connection with the investigation of any alleged offence arising out of a test purchase involving payment with money, search any person for the money, or enter and search premises, or search any box or receptacle and the contents thereof at the place at which such test purchase has been made, and may seize the money so found and retain any change received for the purchase together with the goods as evidence of the transaction. | ||
| (3) Any goods purchased in pursuance of subsection (1) in respect of which no court proceedings are instituted shall be disposed of in such a manner as the Cabinet Secretary may, subject to the provisions of the Public Procurement and Asset Disposal Act, prescribe. | ||
| (4) For the purpose of this section, the expenses incurred by an inspector in making any such purchase shall be met from public funds by way of standing imprest, which shall be accounted for at the conclusion of any proceedings arising from such purchase. | ||
| Clause 11 | The principal Act is amended by inserting the following new Schedule— | The insertion of a Schedule is generally intended to facilitate the implementation of the Act by prescribing standard forms, procedures or administrative requirements. From the preceding amendments in clause 9, it appears that the Schedule is likely intended to prescribe the seizure notice that inspectors are required to complete when seizing goods. |
| (See below) | ||
| SCHEDULE (s. 21(2)) | SCHEDULE (s. 21(2)) SEIZURE NOTICE (Pursuant to Section 21(2) of the Trade Description Act (Cap 505) Laws of Kenya) This is to certify that, I the undersigned inspector have today the ……. Day of …………………….. year ……………………. Visited the premises of (Name of Trader) …………………………………………………………………………… located at (Town/Market)…………………………..in ……………. Sub County within ……………………County and have seized the following equipment/goods/documents: …………………………………………………………………………… …………………………………………………………………………… The above items have been seized for the purpose of …………………………………………………………………………… …………………………………………………………………………… The items have been tested/examined in the presence of the trader/attendant/agent/manager Remarks/observation: …………………………………………………………………………… …………………………………………………………………………… Seizing officer’s name Name of trader/attendant/manager/agent Designation…………………………… Title & Address………………… Signature…………………………… Signature…………………………… Time………………………………… Time…………………………….. Witnesses:- Name Title Address Signature (i)…………………… ……………… ………… …………… Name Title Address Signature (ii)…………………. ……………… …………… …………….. (iii)…………………. ……………… …………… …………….. Notes: If the space/s provided above is not adequate, an attachment hereto shall be deemed to be part of this Seizure Notice. TO BE COMPLETED IN TRIPLICATE ORIGINAL – To be retained by seizing officer as evidence of seizure DUPLICATE – To be left with the person from whom the goods are seized TRIPLICATE – To be filed |