Think about the last thing you bought, maybe a phone, skincare product, or something online. You probably didn’t stop to wonder whether it could harm you or fail to work. You simply trusted that it would do what it was supposed to do, but what happens when that trust is broken?
Maybe the product is defective, causes harm or even it’s nothing like what was advertised. In those moments, the law steps in, and that’s where product liability comes in. In Kenya, this area of law is becoming more important, especially with the rise of online shopping and global trade.
At its core, product liability is about responsibility.It refers to the legal liability of all parties that take part in the manufacture and supply of a product for any loss, harm or injury to a consumer caused by such a product. If a product harms you or doesn’t work as it should, the law allows you to ask: who is responsible for this? Is it the manufacturer? The seller? The distributor? In many cases, the answer is all of them could be. What makes this even more interesting is that, where a defective good causes loss or harm, the liability is strict, to mean that, a manufacturer or a supplier is responsible for goods which cause damages regardless of any act of negligence, fault or breach on their part.
However, if a loss is caused by a service being provided to a consumer, then the legal liability is fault based and the consumer must prove negligence or breach by the service provider. Kenya does not have a single, consolidated statute dedicated solely to product liability. Instead, the legal framework is derived from a combination of laws and constitutional provisions. The Constitution of Kenya (2010) is foundational, particularly Article 46, which guarantees consumers the right to safe, quality goods and compensation for harm suffered.
This is reinforced by key statutes such as The Consumer Protection Act, 2012, which provides mechanisms for consumer redress and prohibits unfair trade practices, The Competition Act, 2010, which protects consumers from harmful market conduct and The Sale of Goods Act, which implies warranties such as merchantable quality and fitness for purpose. Together, these laws create a comprehensive, though fragmented, system that allows consumers to seek remedies when harmed by defective goods or services.
In practice, product liability claims tend to arise from several recurring situations. These include manufacturing defects, as well as design defects, where the product is inherently unsafe even if properly manufactured. There are also situations where the issue lies not in the product itself, but in the information provided. A failure to include adequate warnings or instructions can expose consumers to risks they were not aware of. Similarly, misrepresentation, through advertising or product descriptions, can lead to liability where consumers rely on inaccurate information.
Behind the legal rules, Institutions such as The Kenya Bureau of Standards (KEBS), for instance, focuses on prevention, making sure products meet safety and quality standards before they even reach the shelves. At the same time, the Competition Authority of Kenya (CAK) keeps an eye on how businesses operate, stepping in where practices risk harming consumers, especially through substandard or misleading products. Alongside them, organizations like the Consumer Federation of Kenya play a more public-facing role, speaking up for consumers and helping people better understand their rights.
With platforms like online marketplaces, you might be buying from a seller you’ve never met, in a location you’ve never been to. If something goes wrong, who do you blame? Many platforms try to position themselves as “just middlemen,” but the reality is more complicated. As online shopping in Kenya is still an evolving area, there is a growing expectation that these platforms cannot completely distance themselves from responsibility. As e-commerce continues to grow, so too will the need for clearer rules and stronger accountability.
If you ever find yourself dealing with a defective or harmful product, the law gives you options. You can ask for a refund or replacement, cancel the transaction or claim compensation for any loss or harm suffered.
While the principles of product liability may appear clear, their practical impact becomes more evident when we examine how courts have addressed real disputes involving consumer harm. One of the most influential cases in this area, is Donoghue v Stevenson. This case laid the foundation for modern product liability by establishing that liability can arise even without a direct contractual relationship. Its reasoning has been highly persuasive in many jurisdictions, including Kenya.
Finally, in Bidco Oil Refineries Ltd v Kenya Bureau of Standards, the dispute touched on compliance with product standards. While the case primarily involved regulatory enforcement, it underscored the importance of maintaining quality and safety in consumer goods. a
These cases bring the law down to something very simple: responsibility follows the product. Courts are less interested in technical excuses and more concerned with who should answer when a consumer is harmed.
