قانون الممارسات التجارية العادلة لعام 1994، جمهورية تنزانيا المتحدة

THE. FAIR TRADE PRACTICES ACT, 1994 ARRANGEMENT OF SECTION

PART I PRELIMINARY,

TitleSection 1. Short title and commencement. 2. Interpretation. 3. Appointment of Trade Practices Commissioner.

PART Il ESTABLISHMENT OF THE TRADE PRACTICES TRIBUNAL..

4. Establishment and composition of the Tribunal. 5. .Judgement etc. of Tribunal and execution of judgment. 6. Procedure of Tribunal. 7. Registrar and other. staff of the Tribunal.

8. Expenses, allowances ect. 9 Obstruction of Tribunal. 10. Rules of the Tribunal. 11. Procedure on appeals to the Tribunal. 12. Hearing and determination of appeal. 13. Tribunal may refer appeals back for reconsideration. 14. Provisions pending determination of appeal.

PART III PROVISIONS RELATING To RESTRICTIVE TRADE PRACTICES

15. Meaning of ''restrictive trade practice'' 16. Categories of trade agreements declared to be restrictive trade

practices. 17. Application to restrictive practices of trade associations. 18. Refusal or discrimination in supply as a restrictive trade practice. 19. Specific instances of refusal or discrimination in supply as restric-

tive trade practices. 20. Predatory trade practices to repress competition prohibited. 21. Collusive tendering prohibited. 22. Collusive bidding at auction sale an offence. 23. Complaints regarding restrictive trade practices. 24. Power of the Commissioner to investigate complaints. 25. Powers of the Commissioner in respect of respect of restrictive trade prac-

tices. 26. An Order regulating restrictive trade practice. 27. Actions following joint trade practices of several persons. 28. Appeals from the Commissioner's order. 29. Offences and penalties.

I

1994Fair Trade Practices2 No. 4

PART-IV CONTROL OF MONOPOLIES AND CONCENTRATION OF

ECONOMIC POWER

30. Interpretation. 3 Identifying unwarranted concentrations of economic power. 32. Orders of the Minister to dispose of interests. 33. Appeals from the Minister's Order. 34. Offences and penalty. 35. Minister's approval required for mergers and takeovers, 36, Application to the Minister for appeal. 37. Investigation by the Commissioner. 38. Criteria for evaluating applications for approval, 39. Order of the Minister on mergers and takeovers. 40. Appeals from orders of the Minister.

PART V REGULATION AND DISPLAY OF PRICES

41. Interpretation. 42. Power to fix maximum prices. 43. Power to prescribe percentage fixed goods. 44. Determination of cost. 45. Orders to be laid before the National Assembly. 46. Auction sales. 47. Publicity of orders and lists of maximum prices and charges. 48. Traders, etc. required to display maximum prices. 49. Trader to supply invoice. 50. Books of account.

PART VI CONSUMER PROTECTION

51. Interpretation. 52. Misleading or deceptive conduct. 53. Unconscionable conduct. 54. False or misleading representation. 55. Cash price to be stated in certain circumstances. 56. Misleading conduct. 57. Certain misleading conduct in relation to services. 58. Bait advertising. 59. Accepting payment without intending or being able to supply as

ordered. 60. Misleading representations about certain business activities. 61. Harassment and coercion. 62. Application of provision of Part to prescribed information.

Fair Trade Practices 1994 3No. 4

63. Warning notice to public. 64. Product safety standards. 65. Product information. 66. Power of Minister to declare product safety or information. 67. Compulsory product recall. 68. Compliance with product recall order. 69. Loss or damage caused by contravention of product recall order. 70. Notification of voluntary recall. ...... 71. Copies of certain notices to be given to suppliers or be published

in certain newspapers. 72. Conflict of laws. 73. Application of part to contracts not to exclude or modify. 74. Limitation of liability for breach of certain conditions or warran-

ties. 75. Implied undertakings as to title encumbrances and quiet posses-

sion. 76. Supply by description. 77. Implied undertakings as to quality or fitness. 78. Supply by sample. 79. Liability for loss or damage from breach of certain contracts. 80. Warranties in relation to the supply of services. 81. Actions in respect of unsuitable goods. 82. Actions in respect of false descriptions. 83. Actions in respect of goods of unmerchantable quality. 84. Actions in respect of non-correspondence samples, etc. 85. Actions in respect of failure to provide facilities for repairs or

parts. 86. Actions in respect of non-compliance with express warranty. 87. Right of seller to recover against manufacturer or importer. 88. Time for commencing actions. 89. Application of division not to be excluded or modified. 90. Limitation in certain circumstances of liability of manufacturer

to seller. 91. Rescission of contracts. 92. Standard form contract. 93. Costs.

PART VII MISCELLANEOUS PROVISION

94. Power to obtain information. 95. General powers of the Commissioner. 96. Delegation of powers. 97. Power to revoke or vary permits, etc. 98. Certificates, 99. Power to enter and search.

100. Power of entry and seizure.

Fair Trade Practices4 No. 4 1994

101. Power to search vehicles and seize goods. 102. Procedure on seizure of goods. 103. Retention and disposal of seized goods. 104. Offence to sell or purchase. 105. Refusal to sell goods. ' 106. Illegal conditions. 107. Offence to obstruct authorities. 108. Penalties. 109. Burden of proof. 110. Actions by Consumer-Organizations. 111. What is not a defence. 112. Protection against liability. 113. Commissioner to consult other bodies. 114. General penalty. 115. Regulations. 116. Repeal.

Fair Trade Practices - 1994 5No. 4

THE UNITED REPUBLIC OF TANZANIA

No. 4 OF 1994

I ASSENT,

resident /

An Act to encourage competition in the economy by prohibiting restrictive trade practices, regulating monopolies, concentrations of economic power and prices, to protect the consumer and to provide for other related matters.

II

ENACTED by the Parliament of the United Republic of Tanzania. PART I

PRELIMINARY 1. This Act may be cited as the Fair Trade Practices Act, 1994 and Short title

shall come into operation on such date as the Minister may, by notice and com- mence-in the Gazette, appoint. ment Interpret-2. In this Act, unless the context requires otherwise- tation''business records'' include-

(a) accounts, balance sheets, vouchers, records, minutes of meetings, contracts, files, instructions to employees, and other instruments; and

(b) any information recorded or stored by means of any computer or other device whatsoever and any material subsequently derived from information so recorded or stored;

"commission agent'' means any person who receives or orders goods on account of others, or who solicits orders for goods on behalf of other persons, and includes a person carrying on business as a broker;

''Commissioner'' means the Commissioner for Trade Practices appointed under section 3;

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6 No. 4 Fair Trade Practices 1994

...''competitor'' means a person who produces, distributes, or supplies substantially similar goods or services, at the same stage of production or distribution of goods or supply of services, in relation to another person;

''consent agreement'' means an agreement concluded pursuant to subsection (3) of section 25;

''consumer'' includes any person who purchases or offers to purchase goods or services otherwise than for the purpose of resale; but does not include a person who purchases any goods. or services for the purpose of using them in the production or manufacture of any other goods or articles for sale;

''customer'' means a person who purchases goods or services from another person;

''distribution'' includes any act by which goods or services are sold or supplied by one person to another person;

''distributor'' means a person who engages regularly in distribution or who participates in some act or set of acts of distribution which is the subject of an action under this Act;

''downstream processor'' means a manufacturer who adds value to goods supplied or manufactured by another person;

''fair market price'' means a price at which the market for goods or services clears with sufficient competition without the occurrence of shortages or build-up excess inventories;

''goods include- (a) ships, aircraft and vehicles; (b) animals, including fish; (c) minerals, trees and crops, whether on, under, or attached to land

or not; and (d) gas or electricity.

''intermediate goods'' means goods used as inputs in manufacturing; ''manufacture'' or manufacturing'' includes any artificial process which

transforms goods in order to add value to them for the purpose of resale and any operation of packing or repacking not linked to another form of transformation within a single enterprise;

''Member'' means a Member of the Tribunal and includes the Chairman ''Minister'' means the Minister for the time being responsible for

commerce; ''monopoly undertaking'' means a dominant undertaking, or an\

undertaking which, together with not more than two other independent undertaking--

No. 4 Fair Trade Practices 1994 7

(a) produces, supplies, distributes or otherwise controls not less than one-third of the total goods of any description that are producer supplied or distributed in the Country or any substantial part thereof; or

(b) provides or otherwise controls not less than one-third of the services of any category that is rendered in the country or my substantial part thereof-

''price'' in relation to the sale of goods or to the performance of services, every valuable consideration whether direct or indirect, and includes any consideration which in effect relates to the sale of the goods or services, although ostensibly relating to any other matter or thing;

"'reasonable unit cost'' means the average total cost of producing goodsI or services at the producer's normal scale of output, with all productive factors being remunerated at fair market rates;

''retail trade'' means a form of distribution by which goods are customarily sold to consumers rather than for & purpose of resale or manufacturing and includes any act or set of acts of sale to consumers

which is the subject of an action under this Act; -

participates in some act or set of acts of retail trade which is the subject of an action under this Act;

''sale'' includes an agreement to sell or offer for sale, and an " offer for sale'' shall be deemed to include the exposing of goods for sale, the furnishing of a quotation, whether verbally or in writing, and any other act or notification whatsoever by which willingness to enter into any transaction for sale is expressed;

''service'' includes the sale of goods, where the goods are sold in . conjunction with the rendering of a service; "supplier'', in relation to a service, includes a person who performs the

service and a person who arranges the performance of the service, and in relation to goods or services, it means a person who sells or supplies goods or services to another person;

in relation to goods, includes supply or resupply by way of" supply '' sale, exchange, lease, hire or hire purchase;

''trade'' includes commerce; trade association'' means a body or persons (whether incorporated or

not) which is formed for the purposes of furthering the trade interests of its members or of persons represented by its members;

''trade practice'' means any practice related to the carrying on of, any trade and includes anything done or proposed to be done by any person which affects or is likely to affect the method of trading of any trader or class of traders or the production, supply, or price, in the course of trade, or any property, whether real or personal, or of any services;

"retailer" means a person regularly engaged in retail trade, or who

1994Fair Trade Practices8 No. 4

''Tribunal'' means the Trade Practices Tribunal established by section 4;I

''wholesale trade'' means a term of distribution by which goods are customarily sold for the purpose of resale or as inputs in manufacturing and includes any act or set of acts of sale for either of those purposes which is the subject of an action under this Act. 3--(1) There shall be appointed a Trade Practices CommissionerAppoint-

ment of and such other officers as may be necessary for the due administration Trade Practices Commis-

of this Act. (2) The Trade Practices Commissioner shall, subject to provisions of

this Act, be responsible for the control management and efficient carrying gut, of the functions under this Act.

sioner etc

(3) The Commissioner may authorize any , afficer to exercise any of the powers conferred by this Act upon the Commissioner subject to such limitations as the Commissioner may think fit.

PART II

ESTABLISHMENT OF THE TRADE PRACTICES TRIBUNAL Establish- 4---(1) There shall be established a tribunal . which shall be known

as the Trade Practices Tribunal to exercise the functions conferred upon it by this Act.

ment and composi- tion of the Tribunal (2) The Tribunal shall consist of-

(a) a Chairman who shall be a person holding or is qualified to hold high judicial office, 'and appointed by the President after consultation with the Chief" justice, and-

(b) not less than two and not more than four other members appointed by the President after consultation with the Attorney- General.

(3) No person shall be appointed as a member of the Tribunal other than the Chairman, unless he qualifies for appointment by' virtue of his11

knowledge of, or experience in industry, commerce, economics, law or Public administration.

(4) For the purposes of this section the expression ''high judicial office'' means the office of a Judge of the Court of Appeal or the High Court of the United Republic.

(5) A member of the Tribunal shall hold office for the period not excelling three years and he is eligible for re-appointment for another term of three years only, specified in the instrument of his appointment unless, prior to the expiration of that period-

.(a) he resigns his office by written notification under his hand addressed to the President; or

Fair Trade Practices '' 1994 9No. 4

(b) the President, being satisfied that the member is unfit by reason of mental or physical infirmity to perform the duties of his office, or that the member has failed to attend at least three consecutive meetings of the Tribunal, revokes his appointment.

(6) The quorum for a meeting of the Tribunal shall be the Chairman and two other members.

5.-(1) A judgment or order of the Tribunal on any matter before it Judg- shall, subject to subsection (2), be final. ment, etc.

of Tri- (2) Judgment and orders of the Tribunal shall be executed and

enforced in the same manner as judgments and orders of the High Court. bunaland execution of judg- ment

6. (1) The Tribunal shall have jurisdiction- Functions and pro-

(a) to hear and determine any complaint on a trade practice referred cedure of to it under the provisions of this Act; Tribunal

(b) to inquire into-any matter referred to it and to give orders in accordance with the provisions of this Act; and

(c) to exercise such other functions and powers as are conferred upon it by this Act.

(2) The Tribunal shall in the exercise of its functions under this Act be guided\ by the rules of natural justice -

(3), Without prejudice to the general effect of subsection (2) of section 5 the Tribunal shall in the discharge of its functions under this Act have all the powers of the High Court in respect of

(a) enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise;

(b) compelling the production of documents; and (c) the issue of a commission or request to examine witnesses abroad.

(4), The Tribunal shall at any time be deemed to be duly constituted if the Chairman and two other members are present.

(5) Any decision shall be deemed to be a decision of the Tribunal if it is supported by a majority of the members.

(6) A witness before the Tribunal shall have the immunities and privileges as if he were a witness before the High Court.

Registrar7. The Minister shall after consultation with the Chief Justice appoint an officer to be known as the Registrar of the Tribunal, and shall provide to the Tribunal the services of such other officers as the Tribunal may reasonably require for the carrying out of its functions under this Act.

and other staff of the Tribunal

and staff of the8. The members of ~ the Tribunal, the Registrar Tribunal shall be paid such remunerations and allowances as the Minister

Expenses allo-/shall determine. wances etc.

10 No. 4 Fair Trade Practices 1994

Obstruc- 9.-(1) Any person who -tion of (a) when summoned, fails or refuses to attend without reasonableTribunal excuse; (b) having attended as a witness refuses or fails to take an oath or

make an affirmation as required by the Tribunal; - (c) makes any statement before the Tribunal which he knows to be

false or which he has no reason to believe to be true; ... (d) omits or suppresses any information required by the Tribunal in

the discharge of its functions or relevant to the discharge of those functions-, or.

(e) in any manner misleads, obstructs insults or disturbs the Tribunal, commits an offence, and is liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding twelve months or to both such fine and imprisonment.

10. The Minister may make rules-Rules of (a) prescribing the manner in which an appeal shall be made -to thethe Tri-

bunal Tribunal and the fees to be paid in respect of an appeal; (b) prescribing the procedure to be adopted by the Tribunal in

hearing an appeal and the records to be kept by the Tribunal (c) prescribing the manner in which the Tribunal shall. be convened

and places where and the time at which the sittings shall be held (d) generally for the better carrying out of the provisions of this Act

relating to the Tribunal and appeals thereto. 11. Without prejudice to section 10, in an appeal under this ActProcedure (a) the appellant shall appear before the Tribunal either in personon appe-als to the or by an advocate on the day and at the time fixed for the hearing

of the appeal but if it is proved to the satisfaction of the TribunalTribunal that, owing to absence of the appellant from the country, sickness,- I or other reasonable cause he is prevented from attending at the hearing of the appeal on the day and at the time fixed for that purpose, the Tribunal may postpone the hearing of the appeal for such reasonable time as it thinks necessary;

(b) the costs of the , appeal shall be at the discretion of the Tribunal. 12.-(1) The Tribunal may in any case, if it considers it in the interestHearing

and dctcr- of the parties or of any of them and is not contrary to the interest of other persons concerned or the public interest, order that the hearingminationof appeal or any part of it shall be held in camera.

.1 (2) The Tribunal may make an order prohibiting the publication of any report or description of the proceedings or of any part of the proceedings in any appeal before it (whether heard in public or in camera); but no such order shall be made prohibiting the publication of the names and descriptions of the parties to the appeal, or of any decision of the Tribunal.

(3) In its determination of any appeal, the Tribunal may confirm, modify, or reverse the order appealed against, or any part of that order.

1994 11Fair Trade PracticesNo. 4

13.--(l) Notwithstanding anything contained , in section 12 the Tribunal may in any case, instead of determining any appeal under that section, direct the Commissioner to reconsider, either generally or in respect of any specified matters the whole or any specified part of the matter to which the appeal relates.

Tribunal may refer appeals back for reconsid- eration

-(2) In giving any direction under this section, the Tribunal shall- (a) advise the Commissioner of its reasons for so doing; and- (b) give to the Commissioner such directions as it thinks just

concerning the rehearing or reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration. ...

(3) In reconsidering the matter so referred back, the Commissioner shall have regard to the Tribunal's reasons for giving a direction under subsection (1) and to the Tribunal's directions under subsection (2).

14.-(1) Where an appeal is brought under section 28 against any Provisions order of the Commissioner under section 26 the order to which the pending

determi-appeal relates shall, unless the Tribunal otherwise orders, be held in nation ofabeyance. pending the determination of the appeal. appeal (2) Where an appeal is brought under section 33 against any order

of the Minister under section 32 the merger or takeover to which the~ tappeal relates may not be consummated pending the determination of the appeal.

PART III PROVISIONS RELATING TO RESTRICTIVE TRADE PRACTICES

B.---~(I) 'For the purposes of this Act, "restrictive trade practice'' Meaning refers to an act performed by one or more persons engaged in production or distribution of goods or services which-

of 're- strictive trade(a) in respect of other persons offering the skills, motivation and practice''

minimum seed capital required in order to compete at fair market prices in any field or production or distribution, reduces or eliminates their opportunities so to participate; or

(b I ) in respect of other persons able and willing to pay fair market prices for goods or services, either for production, for resale or final consumption, reduces or eliminates their opportunities to acouire those goods or services.

(2) For the purposes of subsection (1) reduction or elimination of opportunities is to be measured with reference to the situation that would pertain in the absence of the practices in question-

16.-(1) The following categories of agreements are declared to be Cate- restrictive trade practices- gories oftrade , ag-(a) an agreement or arrangement between persons engaged in the

business of selling goods or services to engage in conduct- reements declared to . be re-

(i) hindering or preventing the sale or supply or purchase of goods or services between persons engaged in the selling

strictive trade practices

1994Fair Trade Practices12 No. 4

(ii) limiting or restricting the terms and conditions of sale or purchase between persons engaged in the selling or-buying of goods or services;

(h) a n agreement o r arrangement between manufactures, wholesalers or retailers to sell goods at prices or on terms agreed upon between themselves;

(c) au agreement or arrangement between manufacturers wholesalers or retailer to sell goods at prices or on terms agreed... -goods at prices or on terms agreed upon between thernselves;

(d) an agreement or arrangement between manufacturers, wholesalers, retailers or contractors or any combination of persons other than a partnership, engaged in the selling of goods or the performance of services, to sell goods, or perform services, at prices or on terms agreed upon between the parties to any such agreement or arrangement;

(c) an agreement or arrangement between manufacturers or between wholesalers to sell goods on the condition that prices charged by or conditions of sale applicable to retailers shall be the prices or conditions of sale stipulated by those manufactures or wholesalers;

(f) a discriminatory agreement or arrangement between sellers or between sellers and buyers to grant rebates to buyers of goods calculated with reference to the quantity or value of the total purchases by those buyers from those sellers;

. /(g) an agreement or arrangement between sellers not to sell goods in any particular form or of any particular kind to buyers or to' any class of buyers; or an agreement or arrangement between resellers not to buy goods in any particular form or of any particular kind from sellers or any class of sellers;

(h) an agreement or arrangement between manufacturers or wholesalers or retailers not to employ or to restrict or favor the employment of any method, machinery, process, labour, land or other resources;

(i) an agreement -or arrangement between persons whether as producers, wholesalers, retailers or buyers, to limit or restrict the output or supply of any goods, or withhold or destroy supplies of goods, or allocate territories or markets for the disposal of goods or

(j) an agreernent or arrangement to enforce the carrying out of an agreement or arrangement referred to in this subsection.

(2) No agreement t or arrangement belonging to a category enumerated in subsection (1) shall be enforceable in legal proceedings after the commencement of this Act, nor shall any person bring a suit against any other person by reason of failure to observe or adhere to the terms of that agreement or arrangement or by reason of damages arising from that failure.

e

No. 4 Fair Trade Practices 1994 13 ......

(3) An agreement or arrangement enumerated in subsection (1) shall be regarded as a restrictive trade practice for the purposes of-this Act whether or not the agreement or arrangement is intended to be enforceable by legal proceedings.

(4) Where an agreement is made by a trade association, the agreement shall be deemed to be made by the association and by all persons who are members of the association or represented thereon as if each of those persons were a party to the agreement.

(5) Nothing contained in subsection (1) shall apply in respect of any agreement or arrangement between consumers relating to, goods and services which are bought by them for consumption and not for resale..

Applica-17.-(1) The following practices conducted by or on behalf of a trade association are declared to be restrictive trade practices- tion to re-

strictive (a) the unjustifiable exclusion from a trade association of any person

carrying on or intending to carry on, in good faith, the trade in Practices of trade... associa-relation to which the association is formed; and in determining

whether an exclusion from such an association is unjustifiable the Commissioner may examine, in addition to any other matters which he considers relevant, not only the application of any rules of that association but also the reasonableness of those rules;

tions

(b) the making. directly of a recommendation by a trade association to its members or to any class of its members-

which-relate to the prices charged or to be charged by such members or any such class of members or to the margins included in the prices or to the pricing formula used in the calculation of those prices; or

(i ~

(ii) which relate to the terms of sale (including discount, credit, delivery, and product and service guarantee terms) of such members or any such class of members and which directly affects prices, profit margins included in the prices, or the pricing formula used in the calculation of prices.

(2) A recommendation by a trade association as described in subsection (1)(b) shall be deemed to be a 'restrictive trade practice notwithstanding that any statement in the recommendation may or may not be complied with as the members or class of members to whom the recommendation is made think fit.

(3) A recommendation made by any person for the purpose of or having the effect of, whether directly or indirectly, enabling any trade association to defeat or evade the provisions of this Act shall be deemed to have been made by that trade association.

(4) Where a specific recommendation, whether express or implied. is made by or on behalf of a trade association to its members or to any class of its members concerning the action to be taken or not to be taken by them in relation. to any matter affecting the trading conditions of those

1994Fair Trade Practices14 No. 4 ...

members, the provisions, of this Act shall apply as if membership of the association constituted an agreement under which the /members agreed with the association and with each other take comply with the recommendations, notwithstanding anything to the contrary in the constitution or rules of the association.

(5) Notwithstanding anything in section 16( ) or subsection (4) of this section, a member of a trade association who expressly notifies the association in writing that he disassociates himself entirely from an agreement made by that association or, as the case may be, that he will not take action or will refrain from action of a kind referred to in an express or implied recommendation made by that association shall not, in the absence of proof to the contrary, be deemed to be a party to that agreement or, as the case may be, a member of the association who has ageed to comply with the recommendation.

18.-(1) For purposes of this section, sections 19 and 20, "discrimination" means the act of a person in selling or supplying or

Refusal or discrimi- nation. m offering to sell or supply, goods or services to another person, whether

for use in production for resale or final consumption, under conditions less favourable to that person than those on` which he sells or supplies or offers to sell or supply substantially similar goods or services to third persons.

supply as a festric- tive trade practice

.(2) Conditions of sale or supply may be deemed to be less favourable under the following circumstances-

(a) goods or services are delivered or made available after a significantly longer period of time following receipt of an order, provided that such treatment shall not be deemed to constitute discrimination if more rapid -delivery is openly offered to each ,. purchaser on condition of payment of a uniform premium; or

(b) goods or services are sold or supplied at higher prices, provided that the provisions of quantity discounts which are normal for the trade in question shall not be deemed to constitute discrimination; or

(c) goods or services are sold or supplied on less favourable credit terms, provided that differential credit terms reflecting the established creditworthiness or lack thereof of different purchasers shall. not be deemed to constitute discrimiriation or

(d) in a situation of shortage, such as one prompted by import restrictions, a person sells or supplies goods or services to non- favoured purchasers in quantities less than their normal proportionate share in his sale or supplies;...

(5 ~ ) A person -commits a restrictive trade practice within the meaning of this Act, who, whether as principal or agent, and whether by himself or his . agent-

(a) being a manufacturer refuses to sell or. supply or to continue to sell or supply or who discriminates in selling or supplying goods to another manufacturer, wholesaler, or a supplier of services;

1994 15Fair Trade PracticesNo. 4

(b) being a wholesaler refuses to sell or supply, or discriminates in selling or supplying, goods to a manufacturer, a retailer, or a supplier of services;

(c) being a retailer refuses to sell or supply or discriminates in selling or supplying goods to a manufacture, a supplier of services or final consumer; or

(d) being a supplier of services refuses to sell or supply or discriminates in selling or supplying services to a manufacturer, a wholesaler, a retailer or another supplier of services.

19. Without prejudice to the generality of section 18, a person commits a restrictive trade practice within the meaning of this Act who, whether as principal or agent, and whether by himself or his agent-

Specific instances of refusal or dis-

(a) being an organization which manufactures intermediate goods crimina- used in part as inputs by downstream processors, or being in control of such an enterprise, having also a beneficial interest in one or more such down-stream processors, and being a regular or part-time seller or supplier of such intermediate goods to one or more down-stream processors in which he has no beneficial interest, refuses to sell or supply, or, discriminates in selling or supplying such intermediate goods to one or more down-stream processors;

tion in supply as restrictive trade practices

(b) refuses to sell or supply or discriminates in selling or supplying goods or services to another person except on the condition that the other person also purchases other goods and services from him or from third person nominated by him but nothing in this paragraph shall render unlawful a condition against the separate sale of any goods customarily forming part of a unified set or forming part of a single or composite article;

1 (c) being a retailer of goods or supplier of services indicates in the course of bargaining with another person, being a purchaser or prospective purchaser of goods or services-

(i) that he will sell goods or supply services to that person only if the other person sells or arranges the sale of second-hand goods to the seller or to a person nominated by the seller, orI

(ii) that the terms and conditions on which he will sell those goods or supply those services will be less favourable than those upon which he would make them available if the purchaser were to sell or to arrange the sale of second-hand goods to the seller or to a person nominated by the seller:

Provided that it shall not be a restrictive trade practice for . a seller to stipulate the terms and conditions for second-hand goods in part exchange for reconditioned goods of the same kind if the second-hand goods are required for reconditioning and resale;

(d) refuses to sell or supply or discriminates in selling or supplying goods or services to any other person on the around-

1994Fair Trade Practices16 No. 4

(i) that the other person intends or is likely to resale or supply the goods or services, or has in the past sold or supplied similar

goods or services, at a price that is or was lower than a specified amount or lower than some other price proposed, recommended, determined, charged, collected, or paid by any person or trade association; or

(h) that the other person refuses to impose, or to agree to impose, on any third person to whom he resells or supplies the goods or services, the condition that the resale or supply may not take place at a price lower than a specified amount or lower than some other price proposed, recommended, determined, charged, collected, or paid by any person or trade association.

20.-(l) Any person who, whether as principal or agent, and whether by himself or his agent, commits predatory trade practices with the intention, whether exclusively or in common with other objects, of accomplishing any of the following purposes-

Predatory trade practices to repress, competi- tion pro- (a) to drive a competitor out of business, or to deter a person fromhibited establishing a competitive business in the country or in any specific

area of location within the country; or (b) to induce a competitor to sell assets to, or merge with, another

party, whether that party is the offender himself or a third person; or /

(c)'to induce a competitor to shut down,'whether temporarily or permanently an existing manufacturing facility or wholesale or retail outlet or outlet for the sale of services, or to deter a person from establishing any such facility or out in any one or more location in the country; or

(d) to induce a competitor to desist from producing or trading in any goods or services, or to deter a person from producing or trading in any goods or services,

commits an offence. (2) For the purposes of this section a ''predatory trade practice shall

be deemed to have been committed with the intention, exclusively or of accomplishing any of the purposes described in subsectionpartial ~,

(1) if any outcome described iii -that subsection occurs subsequent to the occurrence of the practice, or if it may reasonably be inferred that successful execution of the practice would ordinarily be followed by that outcome.

(3) For the purposes of this section ''predatory trade practice'' includes the following-

(a) a person sells or supplies, or threatens to sell or supply, goods or services at certain prices which prices are found by the Commissioner to be below their average variable cost, or intended to drive a competitor out of business or to deter a person from establishing a competing business in the country;

1994 17Fair Trade PracticesNo. 4

(b) a person offers money or other consideration of value to a purchaser of goods or services on the condition that the purchaser refrains or agrees to retrain from purchasing the goods or services from some other person or persons unless such consideration is given by way of a normal trade discount-,

(c) a person threatens an existing or potential competitor with bodily harm, damage to property, or other disadvantageous consequences if the competitor undertakes or continues or refuses to agree not to undertake or continue specified lawful trade practice;

(d) a person threatens another person with bodily harm, damage to property or other disadvantageous consequences if the other person purchases goods or obtains services from a third person or refuses to agree to refrain from making purchases from the third person,

(e) a person offers inducements to existing or potential suppliers of goods or services to an existing or potential competitor to with- hold such supplies or to furnish them on terms and conditions that discriminate against the competitor, or he threatens the suppliers with bodily harm damage to property or other disadvan- tageous consequences if they fail to carry out or agree to withhold the supplies or to furnish them on terms and conditions that discriminate against the competitor.

(4) Any person who commits an offence under this section is liable on conviction to a fine not exceeding three million or to imprisonment for a term not exceeding twelve months. If such person is a body corpo- rate the penalty shall be a fine not exceeding five million shillings.

21.-(I) It shall be an offence- collusice tendering

(a) for two or more persons, being either manufacturers, wholesalers prohi- bitedretailers, or contractors, or suppliers of services, to tender for

the supply or purchase of any goods or services at prices, or on terms, agreed, or arranged between them; or

(b) for two or more persons to agree or arrange for all or any of them to abstain from tendering for the supply or purchase of any goods or services, tenders for the supply or purchase of which have been invited.

(2) It shall not be a defence in proceedings for an offence under this section-

(a) that the invitation to tender or the tender was not made or sub- mitted in writting; or

(b) that the invitation to tender or the tender was not described as such or was given some other description; or

(c) that the invitation to tender was extended to some or all of the parties to the agreement or arrangement at different times; or

(d) that the tender of was party to the agreement Or arrangement was submitted before that party had consulted with all or some of the other parties to the agreement or arrangement on the

Fair Trade Practices 199418 No. 4

prices or the terms that those other parties were to submit or on the question as to whether all or some of those parties should abstain from tendering.

(3) Nothing in this section shall apply to a tender made by two or more persons jointly at the express request or with the prior express consent of the person inviting the tender (whether made in the name of one person or in the names of two or more persons), where the tender is made with the intention that if it is successful the supply or purchase of the goods or services purchased, as the case may be, or may be shared y two or more persons.

(4) Any person who commits an offence under this section is liable on conviction to a fine not exceeding one million shillings or to impris- onment for a term not exceeding two years of or to both such fine and imprisonment.

22.--(l) It shall be an offence for any two or more persons, being either manufacturers, wholesalers, retailers, or contractors, to enter into any agreement or arrangement as to the price or prices which any of them will bid at any auction sale of goods, or any agreement or arrangement whereby any party to that agreement agrees to abstain from bidding at any auction sale of goods.

Collusive bidding at auction sale an of- fence

(2) Any person who commits an offence under this section is liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding twelve months or to both such fine and imprisonment.

23. Any person who considers. himself to be aggrieved as a result of a restrictive trade practice may submit a complaint to the Commissioner, in the prescribed form.

Com- plaints re- garding restrictive trade practices

24.--(l) The Commissioner shall investigate a complaint made under section 23 which appears to him to have merit and he may also initiate investigations into alleged restrictive trade practices of which he takes cognizance by other means, including but not limited to references by agencies of the Government.

Power of the Com- missioner to investi- gate com- plaints

(2) The Commissioner, or any person authorized in writing by him, may require access to copies of such records of trade practices, business transactions, and enterprise ownership and control as he may reasonably need to investigate complaints under section 23 and without limiting the generality of the foregoing, he or his authorized agent may-

(a) address to any person currently or previously engaged in trading in goods or services to which the allegations refer, or to any person currently or previously connected with a relevant trade association, questions concerning the existence or otherwise of

1994 19Fair Trade PracticesNo. 4

agreements, minutes of meetings or memoranda, correspon- dence, instructions to employees, or other records relating to the alleged trade practices and demand a response to the questions within a reasonable time;

(b) require any person currently or previously engaged in trading in goods or services to which the allegations refer to grant him access to records indicating the specifications of goods or services traded, persons from whom they have been sold or supplied, quantities and dates of purchases, sales and deliveries, prices charged, paid, and collected, terms and conditions of payment, credit provided, periods of delivery, manner of shipment and other relevant information; or

(c) require any person possessing records such as those described in this subsection to give them copies of records or alternatively to submit the record to him for copying by the Commissioner.

(3) Where the Commissioner deems it necessary for the purpose of verifying the specification of any goods whose trade is the subject of allegations under this section, or of verifying the movement of such goods in the course of trade, he or a person authorized in writing by him may enter any premises in the occupation or under the control of a trader, manufacturer, producer, commission agent, clearing and for- warding agent transporter or other person believed to be engaged in trading in those goods, and may inspect the premises and any goods situated thereon.

(4) Upon entering premises in pursuance of the powers conferred by subsection (3) the Commissioner or any other person authorized by him in writing shall, before proceeding to conduct an inspection of the pre- mises or goods situated thereon, inform the person present who is or who reasonably appears to be for the time being in charge of the premises of his intention to exercise his powers under this Act.

25.-(1) The Commissioner may take any of the following steps with respect to a person alleged to be engaged or to have been. engaged in restrictive trade practices-

(a) inform the person in writing that allegations have been made and that specific evidence has been presented to substantiate the al- legations, and invite the person to comment on the allegations and the evidence and to indicate what remedies the person would propose in order to bring his trade practices into conformity with this Act; or

(b) inform the person that in his opinion the weight of the evidence supports allegations that have been made concerning the occurr- ence of a restrictive trade practice, and the person to take, specific steps to discontinue such practices and, in addition, compensate for the past effects of such practices by. taking positive steps to

Powers of Commissioner in respect of restrictive trade practices

1994Fair Trade Practices20 No. 4

assist one or more existing or potential suppliers, competitors or customers to participate actively in producing or trading in the goods or services to which the allegations relate.

(2) In either of the cases referred to in paragraph (a) or (b) of subsec- tion (1) the Commissioner shall require the person alleged to have corn- mitted restrictive trade practices to respond to his communication by a certain date, and additionally he may require the person to take the corrective steps described in paragraph (b) of subsection (1) by a certain date and to furnish him with evidence that the steps have been taken by that date.

(3) If the person alleged to have committed a restrictive trade practice does not respond to the Commissioner's communication by the indicated date, or the Commissioner deems the person's response not to remove the grounds for the allegation, or the person fails to implement measures which he has agreed in his response, the Commissioner shall require the person to negotiate a consent agreement satisfactory to the Commis- sioner, stipulating that the person will desist from specified practices and will take such specified measures to compensate for the past effect of such practices.

(4) The Commissioner shall cause a consent agreement entered into under subsection (3) to be published in the Gazette as early as practicable and he shall send copies of the agreement to any person who complains to him of the trade practices in question, and also to any other persons whom he deems to be affected by the agreement.

26.-(I) If a person considered by the Commissioner to be committing or to have committed a restrictive trade practice under this Act fails. to take steps satisfactory to the Commissioner under section 25 or, having signed a consent agreement under subsection (3) of section 25, fails. to abide by the terms of the agreement or commits restrictive trade practices not covered by the agreement, the Commissioner shall make an order regulating the practice in question.

An, Order regulating restrictive trade practice

(2) The order issued shall require a person committing or deemed to have committed a restrictive trade practice to desist from the trade practices prohibited by this Act and may also require him to take certain positive steps to assist existing or potential suppliers, competitors, or customers, in order to compensate for the past effects of those practices.

(3) An order made under this section shall specify the effective dates by which the actions specified therein must be under taken which dates shall be no sooner than twenty-eight days following the date of publica- tion of the notice in the Gazette.

1994 21Fair Trade PracticesNo. 4 Actions27.-(1) In any case where one or more restrictive trade practices

are alleged to be committed or to have been committed by two or more persons acting in consent, whether expressly or implicitly, the Commis- sioner may classify till such persons as objects of a single investigation, and two or more such persons may be invited to negotiate and sign a single consent agreement.

following joint trade practices of several persons

(2) The Commissioner may address a single order to two or more persons, and in general whether the context allows the word ''person'' in sections 25, 26 and 27 may be interpreted to mean two or more persons alleged to be committing or to have committed one or more restrictive trade practices in concert.

28. A person aggrieved by the order of the Commissioner under section 26 may appeal to the Tribunal against the order within twenty- eight days of the making of the order.

29.--(l) Any person who, whether as principal or agent. Offences and penal- ties

(a) having not lodged an appeal in accordance with section 28 against an order of the Commissioner made under section 26, contravenes or fails to comply with the order; or .

(b) after the Tribunal has pronounced its decision on an appeal made under section 28, contravenes or fails to comply with any portion of an order of the Commissioner under section 28 which is con- firmed by the Tribunal or as modified by the Tribunal,

commits an offence.

(2) Any person who commits an offence under this section is liable on conviction to a fine not exceeding one million shillings or to impris-, onment for a term not exceeding two years or to both such fine and imprisonment.

(3) If the Court is satisfied that a monetary value can reasonably be placed on the damage including loss of income, suffered by a person, as a result of restrictive trade practices committed by a person guilty of an offence under section 21 or 22, or subsection (1) of this section, the convicted person shall, in addition to any other penalty which may otherwise be imposed. be liable to a fine Of two times Such monetary value. which the Court shall order to be paid to the person suffering the damage.

Appeals from the Commissioner order

Fair Trade Practices 199422 No. 4

PART IV CONTROL OF MONOPOLIES AND CONCENTRATIONS

OF ECONOMIC POWER Interpre- 30--(l) In this Part, unless the context otherwise requires-

''interest'' means ownership of shares or a prop- tation of Part IV ''beneficial interest'' or

ortion of the assets of an enterprise engaged in production, distribu- tion, or the supply of services;

41 control'' means the power to make major decisions in respect of the conduct of the affairs of an enterprise after no more than nominal consultation with other persons, whether directors or other officers of the enterprise;

''merger Or takeover'' means a transaction or other action which involves the implementation of a merger or takeover proposal;

"merger or takeover proposal'' means- (a) proposal relating to the acquisition or disposition of any

shares in a company which, together with shares, if any to which the transferee already has a beneficial interest, carry the right to exercise or control the exercise- (i) in the case of a private company, of more than fifty

percent of the voting power at any general meeting of the transferor company; or

(ii) in the case of a company other than a private company, of fifty percent or more of the voting power at any general meeting of the transferor company; or

(b) a proposal for the acquisition or disposition of- (i) the whole of the equity capital of the business of any

person or body of persons (other than a company); or (ii) a portion in the equity capital of the business of any

person or body of persons (other than a company) being a portion which, together with the portion (if any) in the equity capital of the business to which the transferee is already beneficially entitled or in which the transferee is already beneficially interested, gives, the transferee the whole, or more than fifty per cent,of the equity capital of the business; or

(c) a proposal relating to the acquisition or disposition of- (i) the whole of the assets of a section of a business,

(whether or not the business or the section of the business is carried on by a company); or

(ii) a portion of the assets of a section of a business (whether or not the business or that section of the business is carried on by a company), being a portion of those assets which, together with any equity capital already held in that section by the transferee, repre-

Fair Trade practices 1994 23No. 4

sents the whole of, or more than fifty per cent of the value of, the assets used in carrying on that section of the business; or

(d) a proposal (not being a proposal coming within paragraph (b) or paragraph (c) relating to the acquisition or dispos- ition of the tangible and intangible assets employed in the business or section of a business if the total value of the assets to which the proposal relates, together with any equity capital already held in the business or the section of the business, is more than fifty per cent of the combined value of the tangible and intangible assets employed in connection with the business or section of a business (whether the business or section of a business is carried on by a company or not); or

(e) a proposal which if effected would result in the establisfi- ment of a new business to acquire, by any of the means set out in paragraphs (a) to (d), a controlling interest -in two or more independently owned businesses or in one or more sections of at least two such businesses, being sections capable in themselves of being operated as businesses; or

(f) a proposal (not being a proposal coming within the forego- ing paragraphs of this definition) under which a company or business or section of a business (whether incorporated or not) ceases to be carried on at all and does so under or in consequence of any arrangement or transaction entered into for the purpose of, or having the effect of, preventing or restricting competition between that company, business, or section of a business and the other party to the arrange- ment or transaction or any body corporate that is intercon- nected with that party;

''market'' in relation to any goods or services, means the total value of transactions measured in prices at the stage of production or distribu- tion under examination based on the recent year for which they are available;

"nominee" in relation to any person, means any other person who may be required to exercise his voting power in relation to any company in accordance with the direction of the first-mentioned person or who holds shares directly or indirectly on behalf of the person;

"participant" in relation to a merger or takeover proposal or to a merger takeover, means-

(a) where the proposal is of the kind described in paragraph (a) of the definition of that term, the transferee and the transferor company;

(b) where the proposal is of the kind described in paragraph (b) of the definition -of that term, the transferee and the business whose capital or portion of whose capital is the subject of the offer or offers involved in the proposal;

Fair Trade Practices24 No. 4 1994

(c) where the proposal is of the kind described in paragraph (c) of the definition of the term , the transferee and the business (whether a company or not) whose assets or portion of the assets are the subject of the offer or offers involved in the proposal;

(d) where the proposal is of the kind described in paragraph (d) of the definition of that term, the business Whose assets are the subject of the proposal;

(c) where the proposal is of the kind described in paragraph (c) of the definition of that term, each business or section of a business involved in the proposal;

(f) where the proposal is of the kind described in paragraph (f) of the definition of that term, the parties to the arrangement or transaction and the company, business, or section of a business which is to cease to be carried on;

"private company'' has the same meaning as in the Companies Ordi-Cap, 212 nance;

''section of a business'' means a section of a business which is capable in itself of being operated independently;

" share'' in relation to a company, includes stock, any beneficial interest in any share, and any perpetual debenture or perpetual debenture stock;

''transferee'' means a person who, whether or not in concert with any other person, and whether by himself or his agent, is intended to receive a merger or takeover proposal, or proposes to acquire shares in a company, or the whole or a portion of a section of a business, or the whole or part of the tangible or intangible assets of a business or a section of a business;

''transferor'' means the owner of a business the capital or assets of which are sought to be acquired or disposed of in whole or in part under a merger or takeover proposal;

''transferor company'' means a company whose shares, or any of them are sought to be acquired or disposed of under a merger or takeover proposal. (2) For the purposes of this section, a person appointed as the receiver

or manager of the property of a body corporate or as the liquidator of a body corporate is not solely a transferee by reason of his appointment.

(3) The reference in paragraph (a) of the definition of the term "merger'' or takeover proposal'' in subsection (1), and the references in subsection (4), to shares to which the transferee is beneficially entitled shall each be read as including a reference to-

(a) shares held by any person or body corporate as a trustee for a nominee or agent of the transferee; and

(b) shares in or over which the transferee has any right, title, interest, or control over the vote; and

1994 25Fair Trade PracticesNo. 4

(c) shares which the transferee is or will be entitled to acquire under any option or on the fulfillment of any condition under any other shares or financial interest in the transferor company; and

(d) if the transferee is a company, shares to which any interconnected bodies corporate are already beneficially entitled, or which any such interconnected bodies corporate are or will be entitled to acquire in any such manner as aforesaid.

(4) Where- (a) in the case of a proposal of the kind described in paragraph (a)

of the definition of the term ''merger or takeover'' proposal in subsection (1) the transferee is already beneficially entitled to, or already has a beneficial interest in, any shares in the company to which the proposal relates, being shares which carry the right to exercise or control the exercise of more than fifty per cent of the voting power at any general meeting or the transferor corn- pany;

(b) in the case of proposal of the kind described in paragraph (b) (ii) of the definition of the term ''merger or takeover'' proposal in subsection (1) the transferee is already beneficially entitled to more than fifty per cent of the equity capital of the business to which the proposal relates;

(c) in the case of a proposal of the kind described in paragraph (ii) of the definition of the term ''merger or takeover proposal'' in subsection (1), the transferee already holds,, in the assets used in the carrying on of the section of the business to which the proposal relates, equity capital that represents more than fifty per cent of the value of those assets; or

(d) in the case of a proposal of the kind described in paragraph (d) of the definition of the term ''merger or takeover proposal'' in subsection (1) the transferee already owns tangible or intangible assets employed in connection with the business or section of the business to which the proposal relates, being assets which have a value that is more than fifty per cent of the combined value of the tangible and intangile assets employed in connection with the business or section of the business,

that proposal shall not be a merger or takeover proposal within the meaning of the definition.

(5) For the purposes of paragraph (c) (ii) and paragraph (d) of the definition of the term ''merger or takeover proposal'' in subsection (1) the value of the assets of the section of the business involved in the merger or takeover proposal shall be determined by reference to the value at which the assets less any current liabilities attributable to the section of the business are shown in the books of the relevant business, less any relevant provisions for depreciation.

26 No. 4 Fair Trade Practices 1994

Identify- 31.--(l) The Minister shall keep under review the structure of produc- tion and distribution of goods and services in the country to determine where concentrations of economic power exist whose detrimental impact

ing Un- warranted concent-

on the economy out-weighs the efficiency advantages, if any, of integra tion in production and distribution; and in identifying unwarranted con-

rations of economic power centration of economic power he shall pay particular attention to the.

following factors-

(a) a person controls a chain of distributing units the value of whose sales exceeds one-third of the relevant market for the category of goods sold by the chain, comprising the national market in the case of a national chain or a regional or urban market in the case of a regional or urban chain respectively; or

(b) a person, by virtue of controlling two or more physically distinct units which manufacture substantially similar products, supplies more than one-third of the value, at ex-factory prices, of the domestic market for the category of the goods into the country but excluding exports of the goods from the country; or

(c) a person has a beneficial interest, exceeding twenty per cent of outstanding shares, in a manufacturing enterprise, and simultane- ously has a beneficial interest, however small, of outstanding shares, in one or more wholesale or retail enterprises which dis- tribute products of the manufacturing enterprise; or

(d) a person has a beneficial interest, exceeding twenty per cent of outstanding shares, in a wholesale distributing enterprise, and simultaneously has a beneficial interest, however small, in one or more retail enterprises which distribute goods supplied by that wholesale enterprise.

(2) The Minister may direct the Commissioner to investigate any economic sector which he has reason to believe may feature one or more factors -relating to unwarranted concentrations of economic power, and for that purpose the Commissioner shall be entitled to require any par- ticipant in that sector to grant him or any person authorized in writing by him access to records relating to patterns of ownership and person- tages of sales accounted for by leading enterprises in the sector.

(3) The Commissioner may require any person possessing the records referred to in subsection (2) to give him copies of the records or alter- natively to submit the records to him for copying.

(4) For the purpose of this section, an unwarranted concentration of economic power shall be deemed to be prejudicial to the public interest if, having regard to the economic conditions prevailing in the country and to all other factors which are relevant in the particular circumstance, the effect thereof is or would be-

(a) to increase unreasonably the cost relating to the production, sup- ply, or distribution of goods or the provision of any service; -or

1994 27Fair Trade PracticesNo. 4

(b) to increase unreasonably- (i) the price at which goods are sold; or (ii) the profits derived from the production, supply or distribu-

tion of goods or from the performance of any service; or (c) to reduce or limit unreasonably competition in the production,

supply or distribution of any goods (including their sale or . purchase) or the provision of any service; or

(d) to result in a deterioration in the quality of any goods or in the performance of, any service.

(5) Notwithstanding the. provisions of this section, the Commissioner may on his own motion initiate an investigation on any of the issues which may be investigated under this section and shall report his findings to the Minister.

32,41), After receiving the report of the Commissioner on an inves- orders of . tigation under subsection (2) or subsection (5) of section 31 the Minis-

ter to dis-may make an order directing any person whom he deems to hold an pose of in- unwarranted concentrations of economic power in any sector to dispose terests of such portion of his interests in production or distribution-or the supply of services as the Minister deems necessary to remove the unwarranted concentration.

(2) A disposal of interest in pursuant to an order made under subsec- tion (.1) may be accompanied by sale of all or part of a person's beneficial interests in an enterprise, or by sale of one or more units in a group or chain of manufacturers or distributors or suppliers of services controlled by the person.

(3) No order shall be issued tinder this section that would have the. effect of subdividing a manufacturing facility whose -degree of physical integration is such that the introduction of independent management units controlling different components I reduce its efficiency and substan tially raise production costs per unit of output.

(4) An order made under this section shall allow sufficient time for orderly disposal of interests so as not to cause undue loss of value to the person to whom the order is addressed.

33.-(1) A person aggrieved by an order of the Minister made under, section 32 may appeal to the Tribunal against that decision within thirty days after the date on which a notice of that decision on him and the decision of the Tribunal shall be final.

Appeals from. the ministersbeen servedhas order

34.(1) Any person who, whether as principal or agent, and whether by himself or his agent-

offence and pen- alty

(a) having lodged no appeal within the time allotted for appeals under section 33 against an order of the Minister made under section 32, contravenes or fails to comply with such order; or

1994Fair Trade Practices28 No. 4

(b) after the Tribunal has pronounced its decision on the appeal, contravenes or fails to comply with any portion of an order of the Minister made under section 32 which is confirmed by the Tribunal or as modified by the Tribunal,

commits an offence, (2) Any person who commits an offence under this section shall be

compelled by the Court to comply with the order of the Minister or of the Tribubal as the case may be and if there is no such compliance such person or the directors of the company shall be jointly liable to a fine not exceeding three million shillings for everyday the offence persists.

Minister's 35.-(I) Any person who, whether as principal or agent, and whether by himself or his agent, in the absence of an authorizing order by the Minister, participates in consummating-

approval required for mer- gers and (a) a merger between two or more independent enterprises engagedtakeovers in manufacturing or distributing substantially similar com-

modities, or engaged in supplying substantially similar services; or (b) a takeover of one or more such enterprises by another such

enterprise, or by a person who controls another such enterprise, commits an offence.

(2) No merger or takeover as described in subsection (1) carried out in the absence of an authorizing order by the Minister, shall have effect, and no obligations imposed on the participating parties by any agreement in respect of the merger or takeover shall be enforceable in legal proceed- ings.

(3) Any person who commits an offence under this section is liable on conviction to a fine not exceeding two million shillings or to impris- onment for a term not exceeding twelve months or to both such fine and imprisonment.

36. Any person may apply to the Commissioner for an order authoriz- ing a merger or takeover as described in section 35.

Applica- tion to the Minister for appeal

37.--(l) The Commissioner shall investigate any application under section 36 and for that purpose the Commissioner shall be entitled to require any participant in any economic sector within which a merger or takeover under section 35 is proposed to take place to grant to the Commissioner or to any person authorized in writing by him access to records relating to patterns of ownership and percentages of sales ac- counted for by participants in the proposed merger or takeover or by other leading enterprises in the relevant sector.

Investiga- tion by the cornmis- sioner

(2) The Commissioner may require any person possessing such re- cords to give him copies of those records or alternatively to submit such records to him for copying by the office of the Commissioner.

Fair Trade Practices 1994 29No. 4

,38. In evaluating an application under section 36 for the purpose of formulating a recommendations to the Minister, the Commissioner shall have due regard to the following criteria-

Criteria for evaluatingapplica- tions for(a) a merger or takeover will be advantageous to the country to the

Extent that the participants produce goods and services entering approval into international trade and the merger or takeover will yield a substantially more efficient unit with lower production costs and greater marketing thrust, thus enabling it to compete more effec- tively with imports, expand the country exports and thereby in- crease employment;

(b) a merger or takeover will be disadvantageous to the extent that it reduces competition in the domestic market and increases the ability of producers of the goods or services in question to man- ipulate domestic prices in accordance with the principles of oligopolistic interdependence;

(c) a merger or takeover will not merely be disadvantageous for the only reason that it encourages capital-intensive production technology in lieu of labour-intensive technology.

39.-(l) After considering the recommendation of the Commissioner made under section 38 the Minister may make an order concerning the application for authorization of a merger or takeover.

Order of the Minis- ter on mergers and.(2) An order made under subsection'(1) may approve or reject the

application, or it may approve the application on condition that certain steps be taken to reduce the negative effects of the merger or takeover on competition.

takeovers

(3) The Minister shall cause an order made under subsection (1) to be published in the Gazette as soon as reasonably practicable after it is made.

40. Any person aggrieved by an order of the Minister made under Appeals section 39 -may appeal to the Tribunal against that decision within thirty from or-ders of the days after the date on which a notice of that decision has been served Minister on him.

PART V REGULATION AND DISPLAY Of PRICES

41. In this Part, unless the context requires otherwise- Interpre-tation of ''cost'' means the cost determined in the manner prescribed by an order' Part V

under section 44; ''invoice'' includes a record of credit sale; ''maximum price'' means the maximum lawful price at which goods may

be sold in wholesale or retail quantities or otherwise, as the case may be; in accordance with this Act, -and includes any consideration for an option to purchase;

19%Fair Trade Practices30 No. 4 I "maximum service charge'' means the maximum lawful charge at which

any service may be rendered in accordance with this Act;. ''overcharge'' means a sale of any goods at a price in excess of the

maximum price or rendering a service at a charge in excess of the maximum service charge;

''percentage fixed goods'' means goods or any quantities of good in respect of which the maximum percentage of profit on cost is fixed under section 43;

"'price-controlled goods'' means percentage fixed goods and price-regu- lated goods;

''price-controlled service'' means a service the maximum charge for which has been fixed by an order made under section 42;

''price-regulated goods'' means goods the maximum price for which has been fixed by an order made under section 42;

"selling price'' means the actual net price charged to the purchaser of the goods concerned, after all discounts and other allowances have been deducted;

''trader'' includes- (a) any person, other than a commission agent or clearing or

forwarding agent, who is required to take out a licence under the Business Licensing Act, 1972;

(b) any person . who carries on the business of supplying goodsAct No.25 of 1972 or rendering services whether or not the person is required, to take out a licence under the Business Licensing Act, 1972; and

(c) Any person carrying on. business in the course of which he, supplies goods or renders services for the purpose of or in performance of a contract by him for work, labour and,... materials;

''Transporter''- means any person who carries on the business of transport- ing goods on behalf of another person. 42.--(I) The Minister may from time to time, by an order published

in the Gazette- Power to fix -maximurn

(a) fix maximum. prices for the sale, either wholesale or retail, which ~ may include charges for packing and delivery, of any goods-

prices,

(i) by any person to another person; or (ii) by their manufacturer to or through the agency of a trader

in those goods; or (iii) by a trader in those goods to another trader of such goods; or (iv) by a trader in those goods to a person who is not a trader in

such goods; or (v) by a person who is not a trader in any particular goods to a

trader in those goods; (b) fix the maximum service charge that may be made for any service;

No. 4 1994 31Fair Trade Practices

(c) prohibit any person carrying on business or gainful occupation specified in the order from increasing. the price of any goods sold by him in the course of such business or occupation above. the price which was ordinarily charged by him 'for like or similar goods, or the charge which was ordinarily made by him for any like or similar service, on a date or during a period specified in the order; and in any proceeding brought for failing to comply with an order made under this paragraph the burden of proving the price ordinarily charged or the charge ordinarily made on the date or during the period specified shall be upon the defendant;

(d) prescribe the type of packing , weight, size, quality, marking and the processing and ingredients of any goods manufactured in the

(e) prescribe the amount of the deposit which any person selling any price-controlled goods subject to the condition that any container of those goods is to be returned may require in respect of any such container, and prescribe the amount (which may exceed the amount of the deposit) which such person shall, on the return of the container, refund to the person by whom the container is returned and the conditions subject to which the refund shall become payable;

(f) exclude anything from the operation of all or any of the provisions

(2) For the purposes of this section, the Minister may fix the maximum price or any maximum charge in respect of the sale of any goods or the rendering of any service by declaring in any manner whatsoever how the maximum price or charge shall be ascertained, and, without prejudice to the generality of the foregoing, may fix any such maximum price or charge either by declaring the maximum price or charge irrespective of the price or charge of such goods or services to the seller, or person rendering the same, or by declaring that any maximum price of goods shall be a price not exceeding the cost to the seller plus a stated sum or a stated percentage of such cost or a stated maximum profit.

(3) Under this section, the Minister may- (a) fix a maximum price or a maximum service charge for any area

in the country which differs from the maximum price or maximum service charge fixed in respect of like or similar goods or services for another area or other areas;

(b) fix a maximum price for goods which includes any charge made for any service, whether a price controlled service or not, re- ndered in relation to the sale of those goods;

(c) fix a maximum service charge for any service which includes any price or charge for the sale of goods whether price controlled goods or not, sold in connection with that service.

(4) For the purposes of this section, the power of the Minister shall be limited to the goods and services produced by monopoly undertakings.

country;

of this Act.

199432 No. 4 Fair Trade Practices

43.-(I) The Minister may from time to time by an order published in the Gazette prescribe any goods of which the maximum price shall, except Where the price is fixed under section 42, be the cost of such goods to the importer, manufacturer or producer, plus the percentage of profit set forth in the order, and plus in addition as. a separate iterm such transport charges as are permitted by subsection (2).

Power to prescribe percen- tage fixed goods

(2) Every importer, commission agent, manufacturer or producer of percentage fixed goods shall, on first sale, endorse on the invoice the maximum retail price which may be charged for such goods sold at the place at which the importer or commission agent has taken delivery of the goods, or at which the goods have been manufactured or produced, and every trader when reselling those goods (except when selling retail to consumer) shall endorse on his invoice the maximum retail price endorsed on the invoice of the importer or of previous seller invoice, adding thereto, as a separate item, the. expense (if any) ordinarily incur- red of transporting the goods from the place of business of the importer or of previous seller to his own place of business.

(3) A trader who acquires for resale any percentage fixed goods by the transfer of such goods from one department or branch of his business to another, or from, an associated business or from any business in which he has a financial interest other than that of a shareholder, or, in which he has an interest in the management or control thereof, whether such department, branch, associated business or other business is in the coun- try, or in any other country, shall, when selling those goods, endorse, on his invoice the maximum retail price of the goods, which shall be the price which would be permissible had he himself imported the goods direct from the country of origin.

(4) Every trader when reselling goods under subsection (3) (except when selling 'retail to a consumer) shall endorse on his invoice the maximum retail price endorsed on the first or previous invoice, adding thereto, as a separate item, the cost (if any) ordinarily incurred of trans- porting the goods from the first or previous place of business of the seller to his own place of business.

(5) Any person who sells or transfers percentage fixed goods otherwise than in accordance with the provisions of this section, or who omits to do anything which he is required to do under this or who, purporting to give any information or to. make any endorsement required by him under this section gives any false information or makes any false indorse- ment, commits an effence.

44. The Minister may from time to time by order published in the Gazette , declare the method by which the cost of any goods or of any service shall be determined, and may in such order declare different methods of determining the cost in respect of different classes of goods, transaction or sellers.

D,etermi- nation of cost

Fair Trade Practices 1994 33No. 4

45. All orders made under sections 42, 43 and 44 shall be laid before orders to be laid be.-the National Assembly as soon as may, be, after they are made, and if

a resolutions passed that the order be annulled, it shall thenceforth be fore theNational void, but without prejudice to the validity of anything done thereunder Assembly or to the making of any new order.

46.--(l) No price-controlled goods shall be sold by auction except under and in accordance with the conditions of a permit issued by the Commissioner and the Commissioner may grant such a permit to any auctioneer either generally in respect of any class of such goods or specifically in respect of any particular sale, and may in such permit impose such conditions relating to the maximum prices at which the, goods may be sold as he may consider necessary, in order to avoid the contravention of this Act.

Auction sales

(2) Any person who sells any price-controlled goods by auction with- out a permit granted under this section or otherwise than in accordance with the conditions imposed in such Permit commits an offence.

47. Copies of any order made under this Act or lists of maximum Publicity prices or maximum service charges fixed under this Act shall be displayed of orders

and lists ofin such places and published in different newspapers in the country as the Commissioner may consider necessary to bring such matter to the notice of the public.

maximum prices and charges

48.-41) The Commissioner may, by notice published in the Gazette, require any trader or other person, or any class of traders or other persons, supplying price-controlled goods or rendering price-controlled services to display a list in Kiswahili and in any other language or lan- guages specified in the notice, in a prominent manner and in a conspicu- ous position, so that it may easily be read by customers in those parts of his or their business premises where business is done, of the current maximum prices for such prices for such price-controlled goods as are mentioned in the order which he or they may supply, or the maximum service charge for any price-controlled service as are specified in the notice which he or they render.

(2) A notice under this section may apply to the whole country or to any area or areas thereof, and may provide for the form in which any such list of maximum prices or maximum service charges which it requires to be displayed shall be arranged.

49._(1) Every trader, manufacturer, producer or commission Traders to agent- supply in-

voice(a) shall, at the time of sale, supply to every purchaser from him of goods in wholesale quantities an original invoice containing the following particulars-

(i) the name and address of seller; (ii) the name of the purchaser; (iii) the date of the sale; (iv) a description sufficiently exact to identify the goods;

Traders, etc. re- quired to display maximum prices

Fair Trade Practices 199434 No 4

(v) the net quantity of the goods sold; (vi) the price or charges charged therefor, showing any au-

thorized transport charge separately; and (vii) in, the case of imported goods, other than price-regulated

goods, the customs entry number and date; and (b) shall retain in his records a duplicate, copy of the invoice.

(2) Every trader, manufacturer, producer or commission agent- (a) shall, at the time of sale, supply to every purchaser from him of

goods in retail quantities an original invoice containing the follow- ing particulars (unless the purchaser at the time of sale dispenses with this requirement)-

(i) the name and address of the seller; (ii) the date of the sale;

(iii) a description sufficiently exact to identify the goods; (iv) the net quantity of the goods sold; and (v) the price or charges charged therefor; and

(b) shall retain in his records a duplicate copy of the invoice. (3) Every transporter shall- (a) as soon as practicable after completion of the transport of any

price-controlled goods, supply to the person for whom the goods have been transported an original invoice containing the following particulars-

(i) the name and address of the transporter; (ii) the date on which the transportation took place;

(iii) a description sufficiently exact to identify the goods trans- ported;

(iv) a description sufficiently exact to identify the conveyance in which the goods were transported;

(v) the place from which and the place to which the goods were transported;

(vi) the quantity of the goods transported; and (vii) the rate or rates charged therefor; and

(b) retain in his records a duplicate copy of the invoice. (4) For the purposes of this section, the seller shall specify in writing

the price or charge which he assigns to each class of price-controlled goods included in the transaction.

(5) Every person who renders any price-controlled service for which a charge has been made or is to be made shall, as soon as possible after such service has been rendered, supply to such person an invoice describ- ing the service and showing the charge which has been or is to be made for such service, including the selling price of any materials used in his records.

(6) Any person who fails to comply with the provisions of this section or with any conditions imposed under subsection (5) commits an offence.

1994 35Fair Trade PracticesNo. 4

50.-(I) Every Trade, manufacturer, producer, Commission agent, Books of clearing, and forwarding agent of other person supplying any price-con- trolled goods or rendering any price -controlled service shall keep such books of account or other records in respect of his dealing in price-con- trolled goods or price -controlled services and shall make such entries therein, as may be prescribed, and shall preserve such books of account or records after the date of the last entry Therein for a period of two years, or such other period as the Commissioner may allow:

(2) If any retail trader, Commission agent, clearing and forwarding agent or other Person supplying any price -controlled goods or rendering any price-controlled service shows to the satisfaction Of the Commis- sioner that the application of this section would impose undue hardship the Commissioner may exempt such retail trader, commission agent' clearing and forwarding agent or other person from complying wit'' the provisions of this section subject to such conditions and for such time as he may consider necessary.

(3) Any person who fails to comply with the provisions of this section or with any conditions imposed thereunder commits an offence

PART VI CONSUMER PROTECTION

interpre-51--(1) In this Part- " express warranty" in relation to goods, means an undertaking, asser- tation ofPart VItion or representation in relation to--

(a) the quality, performance of characteristics of the goods-, (b) the provision of services that are or may at any time be required-

in respect of the goods; (c) the supply of party that are or may at any time be required

the goods; or (d) the future availability of identical goods, or of goods constituting

or forming part of a set of which the goods in relation to which the undertaking, assertion or representation is given or made from part, given or made in connection with tile supply Of tile goods or in connection with the goods or in connection with the promotion by any means (If the supply or use of the goods, the natural tendency of which is to induce persons to acquire the goods; ''manufactured'' includes grown, extracted, produced, processed and

assembled. (2) For the purposes of this Part, where a person makes a represen-

tation with respect to any future matter (including doing of, or the refusing to do, any act) and the person does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.

account

Fair Trade Practices 199436 No. 4

(3) For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a person with respect to any future matter, the person shall, unless he adduces evidence to the contrary, be deemed not to 'have had reasonable grounds for making the representation.

(4) Sub-section (1) shall be deemed not to limit by implication the meaning of a reference in this Part to a misleading representation, a presentation that is misleading in a material particular or conduct that is misreading or is likely or liable to mislead.

(5) A reference to goods, shall, unless the contrary intention appears, be read as reference to goods of a kind ordinarily acquired for personal, domestic or household use or consumption.

(6) A reference to a person who acquires goods from a consumer does not include a reference .to a person who acquires goods for the purpose of re-supply.

(7) A reference to the quality of goods includes a reference to the state or condition of the goods.

(8) A reference to antecedent negotiations in relation to the acqui- sition of goods by a consumer shall be read as a reference to any negoti- ations or arrangements conducted or made with the consumer by another person in the course of business carried on by the other person whereby the consumer was induced to acquire the goods or which otherwise promoted the acquisition of the goods by the consumer.

(9) if- (a) a person holds himself out to the public as the manufacturer of

goods; (b) a person causes or permits his name, a name by which he carries

on business or his brand or mark to be applied to goods supplies by him; or

(c) a person causes or permits another person, in connection with the supply or possible supply of goods by that other person, or in connection with the promotion by that other person by any means of the supply or use of goods, to hold out the person to the public as the manufacturer of the goods,

the person shall be deemed, for the purposes of this Part, to have manufactured the goods.

(10) if- (a) goods are imported into the country by a person who is not the

manufacturer of the goods; and (b) at the time of the importation the manufacturer of the goods

does not have a place of business in the country, he shall be deemed, for the purposes of this Part, to have manufactured the goods.

1994 37Fair Trade practicesNo. 4 (11) For the purposes of subsection (9) (b)- (a) a name, brand or mark shall be deemed to be applied to goods if-

(i) it woven in, impressed on worked into or annexed or affixed to the goods; or

(ii) it is applied to a covering, label, reel or thing in or with which the goods are supplied; and

(b) where a person's name in which he carries on business or his brand or mark is applied to goods, it shall be presumed, unless the contrary is established, that he caused or permitted the name brand or mark to be applied to the goods.

(12) The reference in subsection (11) to a covering includes a reference to a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper and the reference in that subsection to a label includes a reference to a brand or ticket.

(13) if goods are imported into the country on behalf of a person, such person shall be deemed, for the purposes of this Part, to have

imported the goods into the country. (14) For the purposes of this Part, goods shall be taken to be supplied

to a consumer notwithstanding that, at the time of the supply, they are affixed to land or premises.

52.-M No person shall, in trade engage in conduct that is misleading Mislead- ing or de- captive

or deceptive or is likely to mislead or deceive. (2) Nothing in this Part shall be taken as limiting by implication the

conduct

generality of subsection (1). Uncons. 53.-41) No person shall, in connection with the supply or possible

supply of goods or services to a person, engage in conduct that is, in all cionable conduct

the circumstances, unconscionable. (2) Without in any way limiting the matters to which the Tribunal

may have regard for the purpose of determining whether a person has contravened subsection (1) in connection with the supply or possible supply of goods or services to a person (in this subsection referred to as the 'consumer'), the Tribunal may have regard to-

(a) the relevant strength of the bargaining positions of the person and the consumer;

(b) whether, as a result of conduct angaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier;

(c) whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services;

(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the person in relation to the supply or possible supply of the goods or services; and

38 No. 4 1994Fair Trade Practices

(e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than a body corporate,

(3) A person shall not be taken for the purposes of this section to engage in unconscionable conduct in connection with the sup- ply or possible supply of goods or services to a person by reason only that he institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration.

(4) For the purposes of determining whether a person has contravened subsection (1) in connection with the supply or pos- sible supply of goods or services to a person-

(a) the court shall not have regard to any circumstances that were not reasonably forceable at the time of the alleged contra- vention; and

(b) the court may regard to conduct engaged in, or circumstances existing, before the commencement of this section.

(5) A reference in this section to goods or services is a reference to goods or services of kind ordinarily acquired for personal, domestic or household use or consumption.

(6) A reference in this section to the supply or possible supply of goods does not include a reference to the supply or possible supply of goods for the purpose of re-supply or for the purpose of using them up or transforming them in trade or commerce.

54. No person shall, in connection with supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services-

False or mislead- ing rep- resenta-

(a) falsely represent that goods are of a particular standard, quality,tion grade, composition, style or model or have had a particular history or particular previous use;

(b) falsely represent that services are of a particular standard quality or grade;

(c) falsely represent that goods are new; (d) falsely represent that a particular person has agreed to acquire

goods or services; (e) represent that goods or services have sponsorship, approval, per-

formance characteristics, accessories, uses or benefits they do not have;

(f) represent that he has a sponsorship, approval or affiliation he does not have;

(g) make a false or misleading representation with respect to the price of goods or services;

Fair Trade Practices 1994 39No. 4

(h) make a false or misleading representation concerning the availa- bility of. facilities for the repair of goods or of spare parts for goods;

(i) make a false or misleading representation concerning the place of origin of goods;

(j) make a false or misleading representation concerning the need for any goods or services;

(k) make a false or misleading representation concerning the exis- tence, exclusion or effect of any condition, warranty, guarantee, right or remedy-

55. No person shall, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services, make a representation with respect to an amount that, if paid, would constitute a part of the consid- eration for the supply of the goods or services unless he also specifies the cash price for the goods or services.

Cash price to be stated in certain circumsta- nces

56. No person shall, engage in conduct that is liable to mislead the Mislead- public as to the nature, the manufacturing process, the characteristics, ing con-

ductthe suitability for their purpose or the quantity of any goods. 57. No person shall, engage in conduct that is liable to mislead the

public as to the nature, the characteristics, the suitability for their purpose of the quantity of any services.

Certain mislead. ing con. duct in re. lation to services

58.-(I) No person shall, advertise for supply at a specified price, goods or services if there are reasonable grounds, of which he is aware, or ought reasonably to be aware, for believing that he will not be able to offer for supply those goods or services at that price for a period that

Bait ad. vertising

is, and in quantities that are, reasonable having regard to the nature of the market in which he carries on business and the nature of the adver- tisement.

(2) Any person who has, in trade, advertised goods or services for supply at a specified price shall offer such goods or services for supply at that price for a period that is, and m, quantities that are reasonable having regard to the nature of the market in which he carries on business and the nature of the advertisement.

(3) In a prosecution of a person in relation to a- failure to offer goods or services to a person (in this subsection referred to as the 'customer') in accordance with subsection (2), it is a defence for that person if he establishes that-

(a) he offered to supply, or to procure another person to supply goods or services of the kind advertised to the customer within a reasonable time, in a reasonable quantity and at the advertised price; or

Fair Trade Practices 199440 No. 4

(b) he offered to supply immediately, or to procure another person to supply within a reasonable time equivalent goods or services to the customer in a reasonable quantity and at the price at which the first mentioned goods or services were advertised,

and, in either case, where the offer was accepted by the customer, he has so supplied, or procured another person to supply, goods or services.

59. No person shall accept payment or other consideration for goods or services where, at the time of the acceptance-

Accepting payment without or

(a) he intends-being able to supply (i) not to supply the goods or services; or.as ordered.

(ii) to supply goods or services material different from the goods- or services in respect of which the payment or other consi- deration is accepted; or

(b) there are reasonable grounds, of which he is aware or ought. reasonably to be aware, for believing that he will not be able to supply the goods or services within the period specified by him or, if no period is specified, within a reasonable time.

60---(1) No person shall make a representation that is false or mis- leading in a material particular concerning the profitability or risk or any other material aspect of any business activity that he has represented as one that can be, or can be to a considerable extent, carried on at or from a person's place of residence.

Mislead- ing rep- resenta- tions about cer- tain busi- ness ac- (2) Where a person, invites, whether by advertisement or otherwise,

persons to engage or participate, or to offer or apply to engage or participate, in a business activity requiring the performance by the per- sons concerned of work, or the investment of moneys by the persons concerned and the performance by them of work associated with the investment, he shall not make, with respect to the profitability or risk or any other material aspect of the business activity, a representation that is false or misleading in the material particular.

tivities

61. No person shall use physical force or undue harassment or coercionHarass- ment and in connection with the supply or possible supply of goods or services to coercion a consumer or the payment for goods or services by a consumer.

62- (I) Nothing in sections 52,54,56,57 or 60, applies to a prescribed publication of matter by a prescribed information provider, other than-

Applica- tion of provisions (a) a publication of matter in connection with-of Part to

(i) the supply or possible supply of goods or services; orpre- (ii) the promotion by any means of the supply or use of goodsscribed in-

formation or services,

Fair Trade Practices 1994 41No. 4

where the goods or services were relevant goods or services in relation to the prescribed information provider; or the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with-

(i) a person who supplies goods or services of that kind; or (ii) a body corporate that is related to a body corporate that

supplies goods or services of that kind; or (b) a publication of an advertisement.

(2) For the purposes of this section, a publication by a prescribed information provider is a prescribed publication if-

(a) in any case the publication was made by the prescribed informa- tion provider in the course of carrying on a business of providing information, or

(b) in the case of a person who is a prescribed information provider by virtue of paragraph (a), (b) or (c) of the definition of 'pre-

scribed information provider' in subsection (3) (whether or not the person is also a prescribed information provider by virtue of another operation of that definition)-the publication was by way of radio or television broadcast by the prescribed information provider.

(3) In this section- ''prescribed information provider'' means a person who carries on a

business of providing information.''relevant goods or services'', in relation to a prescribed information provider, means goods or services of a kind supplied by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the pre- scribed information provider; 63.-(1) Notwithstanding the provisions of this Act, the Commis-

sioner may publish a notice in writing in the Gazette containing- Warning notice to public

(a) a statement that goods of a kind specified in the notice are under investigation to determine whether the goods will or may cause injury to any person) or

(b) a warning of possible risks involved in the use of goods of a kind specified 'in the. notice.

(2) Where an investigation referred to in subsection (1) has been completed the Commissioner shall, as soon as practicable after the inves- tigation has been completed, by notice in writing published in the Gazette, announce the results of the investigation, and may announce in the notice whether, and if so, what action is proposed to be taken in relation to the goods under this Part.

Product64.-(1) No person shall supply goods that are intended to be used, or are of a kind likely to be used, by a consumer if the goods are of -a kind-

safety standards and un- safe

1994Fair Trade Practices42 No. 4

(a) in respect of which there is a prescribed consumer product safety standard and which do not comply with that standard;

(b) in respect of which there is in force a notice under this section declaring the goods to be unsafe goods; or

(c) in respect of which there is in force a notice under this section imposing a permanent ban on the goods.

(2) The regulations may, in respect of goods of a particular kind, prescribe a consumer product safety standard consisting of such require- ments as to-

(a) performance, composition, contents, methods of manufacture or processing, design, construction, finish or packaging of the goods;

(b) testing of the goods during, or after the completion of, manufac ture or processing; and

(c) the form and content of markings, warnings or instructions to accompany the goods,

as the reasonably necessary to prevent or reduce risk of injury to any person.

(3) No person shall export goods the supply in the country of which is prohibited by subsection (1) unless the Minister has, by notice in writing given to such person, approved the export of those goods.

(4) Where the Minister approves the export of goods under subsection (3), the Minister shall cause a statement setting out particulars of the approval to be laid before the Nation Assembly at the next sitting after the approval is given.

(5) Where it appears to the Minister that goods of a particular kind will or may cause injury to any person, the Minister may, by notice published in the Gazette,declare the goods to be unsafe goods, and shall forthwith impose a temporary ban on the goods.

(6) A notice and the temporary ban under subsection (5) shall remain inforce until the end of three months after the publication of the notice in the Gazette unless it is revoked before the end of that period.

(7) Where- (a) a period of three months has elapsed after the date of publication

of the notice in the Gazette declaring goods to be unsafe goods and a temporary ban has been imposed; and

(a) the supplier has failed to make good the defect. the Minister may, by notice in writing published in the Gazette, impose a permanent ban....

(8) Where- (a) the supplying of goods by any person constitutes a contravention

of this section by reason that the goods do not comply with a prescribed consumer product safety standard;

1994 43Fair Trade PracticesNo.. 4

(b) a person suffers loss or damage by reason of a defect in, or a dangerous characteristic of, the goods or by reason of not having particular information in relation to the goods; and

(c) the person would not have suffered the loss or damage if the goods had complied with that standard,

the person shall be deemed for the purposes of his Act to have suffered the loss or damage by the supplying of the goods.

(9) Where- (a) the supplying of goods by any person constitutes a contravention

of this section by reason that there is in force a notice under this section declaring the goods to be unsafe goods or imposing a temporary or permanent ban on the goods; and

(b) a person suffers loss or damage by reason of a defect in, or a dangerous characteristic of the goods or by reason of not having particular information as to a characteristic of the goods,

the person shall be deemed for the purposes of this Act to have suffered the loss or damage by the supplying of the goods.-

65.-(l) Subject to the provisions of the Standards Act, no person shall supply goods that are intended to be used, or are of a kind likely to be used, by a consumer, being goods of a kind in respect of which a consumer product information standard has been prescribed, unless he has complied with that standard in relation to those goods.

Product informa tion Act No. 3 of 1975

(2) The regulations may, in respect of goods of a particular kind, prescribe a consumer product information standard consisting of such requirements as to-

(a) the disclosure of information relating to the performance, com- position, contents, methods of manufacture or processing, design, construction, finish or packaging of the goods; and

(b) the form and manner in which that information is to be disclosed on or with the goods,

as are reasonably necessary to give persons using the goods information as to the quantity, quality, nature or value of the goods.

(3) Where- (a) the supplying of goods by any person constitutes a contravention

of this section by reason that he has not complied With a prescribed consumer product information standard in relation to the goods;

(b) a person suffers loss or damage by reason of not having particular information in relation to the goods; and

(c) the person would not have suffered the loss or damage if he had complied with that standard in relation to, the goods,

the person shall be deemed, for the purposes of this Act, to have suffered the loss or damage by the supplying of the goods.

199444 No. 4 Fair Trade Practices -

66.-(1) The Minister may, by notice published in the Gazette, declare that, in respect of goods of a kind specified in the notice, a particular

Power of Minister to declare standard, or a particular part of a standard, prepared or approved by

the Bureau of Standards or-by a prescribed association or body, or such a standard or part of a standard with additions or variations specified in the notice, is a consumer product safety standard for the purposes of section 64 or a consumer product information standard for the purposes of section 65.

product safety in- formation

(2) Where a notice is so published, the standard, or the part of the standard, referred to in the notice, or the standard or part of a standard so referred to with additions or variations specified in the notice, its the case may be, shall be deemed to be a prescribed consumer product safety standard for the purposes of section 64 or a prescribed consumer product information standard for the purposes of section 65, as the case may be.

(3) Subsection (1) does not authorise the publication of a notice in relation to goods of a particular kind if the standard or the part of the standard refer-red to in the notice, or the standard or the part of the standard so referred to with additions and variations specified in the notice, is inconsistent with a standard prescribed in relation to goods of that kind by regulations made for the purposes of section 64 or 65.

67.-(1) Where-Compul- (a) any person supplies-goods that are intended to be used, or areSory pro-duct recall of a' kind likely to be used, by a consumer, and-

(i) it appears to the Minister that the goods are goods of a kind which will or may cause injury to any person;

(ii) the goods are goods of a kind in respect of which there is a prescribed consumer product safety standard and the goods do not comply with that standard; or

(iii) the goods are goods of a kind in relation to which there is in force a notice under subsection (5) or (7) of section 64, and

(a) it appears to the Minister that the supplier has not taken satisfac- tory action to prevent the goods causing injury to any person,

the Minister may, by notice in writing published in the Gazette, require the supplier-

(c) to take action within the period specified in the notice to recall the goods;

(d) disclose to the public, or to a class or persons specified in the notice, in the manner and within the period specified in the notice, one or more the following-

(i) the nature of a defect in, or a dangerous characteristic of, the goods identified or the notice;

(ii) the circumstances, being circumstances identified in the notice, in which the use of the goods is dangerous; or

(iii) procedures for disposing of the goods specified in the notice; or

Fair Trade Practices 1994 45No. 4

(e) to inform the public, or a class of persons specified in the notice, in the manner and within the period specified in the notice that the supplier undertakes to do whichever of the following the supplier thinks is appropriate:

(i) except where the notice identifies a dangerous characteristic of the goods-repair the goods;

(ii) replace the goods; (iii) refund to a person to whom the goods were supplied

(whether by the supplier or by another person) the price of the goods,

within the period specified in the notice. (2) Notwithstanding sub-paragraph (1) (e) (iii), where the Minister,

in a notice under subsection (1), requires the supplier to, take action under paragraph (1)(e), the Minister may specify in the notice that, where-

(a) the supplier chooses to refund the price of the goods; and (b) a period of more than 12 months has elapsed since a person

(whether or not the person to whom the refund is to be made) acquired the goods from the supplier,

the amount of a refund may be reduced by the supplier by an amount attributable to the use which a person has had of the goods, being an amount calculated in a manner specified in the notice.

(3) The Minister may, by notice in writing published in the Gazette, give directions as to the manner in which the supplier is to carry out a recall of goods required under subsection (1).

(4) Where the supplier, under subsection (1), undertakes to repair goods, the supplier shall cause the goods to be repaired so that-

(a) any defect in the goods identified in the notice under subsection (1) is remedied; and

(b) if there is a prescribed consumer product safety standard in re- spect of the goods-the goods comply with that standard.

(5) Where the supplier, under. subsection (1), undertakes to replace goods, the supplier shall replace the goods with like goods which-

(a) if a defect in, or a dangerous characteristic of, the first mentioned goods was identified in the notice under subsection (1), do not contain that defect or have that characteristic; and

(b) if there is a prescribed consumer product safety standard in re- spect of goods of that kind, comply with that standard.

(6) Where the supplier, under subsection (1) undertakes to repair goods or replace goods, the cost of the repair or replacement, including any necessary transportation costs, shall be borne by the supplier.

1994Fair Trade Practices46 No. 4

(7) Where goods are recalled, whether voluntarily or in accordance with a requirement made by the Minister under paragraph (1)(d), a person who has supplied or supplier any of the recalled goods to another person outside the country shall, as soon as practicable after the supply of those goods, give a notice in writing to that other person-

(a) stating that the goods are subject to recall; (b) if the goods contain a defect-or have a dangerous characteristic-

setting out the nature of that defect or characteristic; and (c) if the goods do not comply with a prescribed consumer product

safety standard in respect of the goods-setting out the nature of the non compliance.

(8) Where a person is required under subsection (7) to give a notice in writing to another person, the first mentioned person shall, within ten days after giving that notice, provide the Minister with.a copy of that notice.

(9) Any person who contravenes subsection (8) commits an, offence and is liable on conviction-

(a) in the case of a person not being a body corporate, to a fine not exceeding one million shillings or to imprisonment for a term not exceeding twelve months; or

(b) in the case of a person being a body corporate, to a fine not exceeding five million shillings.

68. Where a notice under subsection 67(l) is in force in relation to any person such person-

Com- pliance with pro-

(a) shall comply with the requirements and directions in the notice;duct recall andOrder

(b) shall not- (i) where the notice identifies a defect in, or a dangerous

characteristic of the goods, supply goods of the kind to which the notice relates and which contain that defect and have that characteristic; or

(ii) in any other case, supply goods of the kind to which the notice relates.

69. Where-Loss or damage (a) a person contravenes section 68 by-caused by

(i) supplying goods of a kind in relation to which a notice undercontra- subsection 67(l) is in force; or

(ii) failing to comply with the requirements of such a notice; and vention of product recall

(b) a person suffers loss or damage by reason of a defect in, or aorder dangerous characteristic of, the goods or by reason of not having particular information as to a characteristic of the goods,

the person shall be deemed for the purposes of this Act to have suffered the loss or damage by the supplying of the goods, or by the failure of the supplier to comply with the notice, as the case may be.

1994 47Fair Trade PracticesNo. 4

70._(1) Notwithstanding the provisions of this Act where a person voluntarily takes action to recall goods because the goods will or may cause injury to any person, he shall, within two days after taking that action, give a notice in writing to the Commissioner-

Notifica- tion of voluntary recall

(a) stating that the goods are subject to recall; and (b) setting out the nature of the defect in, or dangerous characteristic

of, the goods. (2) A person who contravenes sub-section (1) commits an offence

and is liable on conviction- (a) in the case of a person not being a body corporate to a fine not

exceeding one million shillings or to imprisonment for a term not exceeding twelve months; or

(b) in the case of a person being a body corporate to a fine not exceeding five million shillings.

71--0) Where the Commissioner publishes notice in the Gazette under section 63 (l) the Commissioner shall, within fourteen days,

Copies of Certain notices to

either - be given to

(a) cause a copy of the notice to be given to each person who, to supplier the knowledge of the Commissioner, supplies goods of the kind or be pub- to which the notice relates; or lished incertain

newspap- (b) cause a copy of the notice to be published in a newspaper circulat- ers.

ing in each part of the country where goods of the kind to which the notice relates are, to the knowledge of the Commissioner supplied.

(2) Any failure to comply with sub-section (1) in relation to a notice does not invalidate the notice.

72. Where- Conflict of laws

(a) the proper law of a contract for the supply by any person of goods or services to a consumer would, but for a term that it should be the law of some other country or a term to the like effect, be the law of any part of the United Republic; or

(b) a contract for the supply by any person of goods or services to a consumer contains a term that purports to substitute, or has the effect of substituting, provisions of the law of some other country or of any part of the United Republic for all or any of the provisions of this Part,

this part applies to the contract notwithstanding that term.

1994Fair Trade Practices48 No. 4

73.-(l) Any term of a contract (including term that is not set out inApplica- tion of the contract by another term of the contract) that purports to exclude, part to contracts restrict or modify has the effect of excluding, restricting or modifying- not to (a) the application of all or any of the provisions of this Part;

(b) the exercise of a right conferred by such a provision; exclude or modify

(c) any liability of the person for breach of a condition or warranty implied by such a provision; or

(d) the application of section 108 is void.

(2) A term of a contract shall not be taken to exclude, restrict or modify the application of a provision of this Part or the application of section 108 unless the term does so expressly of is inconsistent with that provision or section.

74.--(I) Subject to this section, a term of a contract for the supply by a person of goods or services other than goods or services of a kind ordinarily acquired for personal, domestic or household use or consump- tion is not void under this section by reason only that the term limits his liability for a breach of a condition or warranty (other than a condition or warranty implied by section 76) to-

Limita- tion of lia- bility for breach of certain conditions or warran- ties

(a) in the case of goods- (i) the replacement of the goods or the supply of equivalent

goods; (ii) the payment of the cost of replacing the goods or of acquiring

equivalent goods; (iii) the payment of the cost of replacing the goods or of acquiring

equivalent goods; (iv) the payment of the cost of having the goods repaired; or

(b) in the case of services- (i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

(2) Sub-section (1) does not apply in relation to a term of a contract if the person to whom the goods or services were supplied establishes that it not fair or reasonable for the supplier to rely on that term of the contract.

(3) In determining for the purposes of subsection (2) whether or not reliance on -a term of a contract is fair or reasonable, a court shall have regard to all the circumstances of the case and in particular to the following matters-

1994 49Fair Trade PracticesNo. 4

(a) the strength of the bargaining positions of the supplier and the person to whom the goods or services were. supplied. (in this sub-section referred to as 'the buyer') relative to each other, taking into account, among other things, the availability of equi- valent goods or services and suitable alternative sources of supply;

(b) whether the buyer received an inducement to agree to the term or, in agreeing to the term, had an opportunity of acquiring the goods or services or equivalent goods or services from any source of supply under a contract that did not include that term;

(c) whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties); and

(d) in the case of the supply of goods, whether the goods were man- ufactured, processed or adapted to the special order of the buyer.

75. -(1) Where in a contract for the supply of goods by a supplier to a consumer, other than a contract to which sub-section (3) applies, there is-

Implied undertak- ings as to title en- cumbr-

(a) an implied condition that, in the case of a supply by way of sale, ances the supplier has a right to sell the goods, and, in the case of an cand quiet agreement to sell or a hire-purchase agreement, the supplier will Posses- have a right to sell the goods at the time when the property is to pass;

(b) an implied warranty that the consumer will enjoy quiet possession of the goods except so far as it may lawfully be disturbed by the supplier or by another person who is entitled to the benefit of any charge or encumbrance disclosed or known to the consumer before the contract is made; and

(c) in the case of a contract for the supply of goods under which the property is to pass or may pass to the consumer implied warranty that the goods are free, and will remain free until the time when the property passes, from any charge or encumbrance not dis- closed or known to the consumer before the contract is made.

(2) A person is not, in relation to a contract for the supply of goods, in breach of the implied warranty referred to in paragraph (1) (c) by reason only of the existence of a floating charge over assets of the supplier unless and until the charge becomes fixed and enforceable by the person to whom the charge is given.

(3) In a contract for the supply of goods by the supplier to a consumer in the case of which there appears from the contract or as to be inferred from the circumstances of the contract an intention that the supplier should transfer only such title as he or a third person may have, there is-

sion

Fair Trade Practices 199450 No. 4

(a) an implied warranty that all charges of encumbrances known to the supplier and not known to the consumer have been disclosed to the consumer before the contract is made; and

(b) (i) the supplier; (ii) in a case where the parties to the contract intend that the

supplier should transfer only such title as a third person may have, that person; and

(iii) any one claming through or under the supplier or that third person otherwise that under a charge or encumbrance dis- closed or known to the consumer before the contract is made, will not disturb the consumer's quiet possession of the goods.

76.-(1) Where there is a contract for the supply (otherwise that by way of sale by auction) by a person in the course of a business of goods to a consumer by description, there is an implied condition that the goods will correspond with the description, and, if the supply is by reference to a sample as well as by description, it is not sufficient that

Supply by descrip-' tion

-the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.

(2) A supply of goods is not prevented from being a supply by descrip- tion for the purposes of sub-section (1) by reason only that, being exposed for sale or hire, they are -selected by the consumer.

77.--(l) Where a person supplies (otherwise than by -way of sale by auction) goods to a consumer in, the course of a business, there is an implied condition - that the goods supplied under the contract for the supply of the goods are. of merchantable quality, except that there is no such condition by virtue only of this section-

Implied undertak- ings as to quality or fitness

(a) as regards defects specifically drawn to the consumer's attention before the contract is made; or

(b) if the consumer examines the goods before the contract which that examination ought to reveal.

(2) Where a person supplies (otherwise than by way of sale by auction) goods to a consumer in the course of a business and the consumer, expressly or by implication, makes known to the person by whom any antecedent negotiations are conducted any particular purpose for which the goods are being acquired, there is an implied condition that the goods supplied under the contract for the supply of the goods are reason- ably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the consumer does not rely, or that it is unreasonable for him to rely, on the skill or judgment of that person.

(3) Sub-sections (1) and (2) apply to a contract for the supply of goods made by a person who in the course of a business is acting as agent for another person as they apply to a contract for the supply of goods made

1994 51Fair Trade PracticesNo. 4

by a person in the course of a business, except where that person is not supplying in the course of a business and either the consumer knows that fact of consumer before the contract is made..

Supply by78. Where in a contract for the supply (otherwise than by way of sale by auction) by a person in the course of a business of goods to a consumer there is a term in the contract, expressed or implied, to the effect that the goods are supplied by reference to a sample-

sample

(a) there is an implied condition that the bulk will correspond with the sample in quality;

(b) there is an implied condition that the consumer will have a reason- able opportunity of comparing the bulk with the sample; and

(c) there is an implied condition that the goods will be free from any defect, rendering them unmerchantable, that would. not be appa- rent on reasonable examination of the sample.

79.-41) Where- Liability for loss or(a) a person supplier supplies goods, or breach of causes goods to damage

be supplied, to a linked certain credit provided of the supplier and a contracts consumer enters into a contract with the linked credit provider for the provision of credit in respect of the supply by way of sale, lease, hire or hire-purchase of the goods to the consumer; or

from breach of certain contracts

(b) a consumer enters into a contract with a linked credit provider of a supplier for the provisions of credit in respect of he supply by the supplier of goods or services, or goods and services, to the consumer,

and the consumer suffers loss or damage as a result of misrepresentation, breach of contract, or failure of consideration in relation to the contract, or as a result of a breach of a condition that is implied in the contract by virtue of sections 76, 77, 78 or of a warranty that is implied in the contract virtue of section 80, the supplier and the linked credit Pro- vider are., subject to this section; jointly and severally liable to. the con sumer for the amount of the loss or damage, and he consumer may recover that amount by action in accordance with this section in a court of competent jurisdiction

(2) Where- (a) a supplier supplies goods, or causes goods to be supplied, to a

credit provider who is not a linked credit provider of the supplier; (b) a consumer enters into a contract with the credit provider for

the provision of credit in respect of the supply by way of sale, lease, hire or hire-purchase of the goods to the consumer;

(c) antecedent negotiations in relation to the contract were conducted with the consumer by or on behalf of the supplier; and

1994Fair Trade Practices52 No. 4 -

(d) the credit provider did not take Physical possession of the goods before they were delivered to the consumer,

or where a consumer enters into a contract with a credit provider- for the provision of credit in respect of the supply of services to the consumer by a supplier of which the credit provider is not a linked credit provider, and the consumer suffers loss or damage as a result of a breach of a condition that is implied in the contract by virtue of section 76,. 77 or 78 or of a warranty that is implied in the contract by virtue of section 80, the credit provider is not under any liability to the consumer for the amount of the loss or damage, but the consurner may recover that amount by action in a court of competent jurisdiction against the supplier.

(1) A linked credit provider of a particular supplier is not liable to a consumer by virtue of subsection (1) in proceedings arising under that subsection if the credit provider establishes-

(a) that the credit provided by the credit provider to the consumerI was the result of an approach made to the credit provider by the consumer that was not induced by the supplier;

(b) where the proceedings relate to the supply by way of lease, hire or hire-purchase of goods by the linked credit provider to the consumer, that- (i) after due inquiry before becoming a linked credit provider

of the supplier, the credit provider was satisfied that the deputation of the supplier in respect of the supplier's 'financial standing and business conduct was good; and

(ii) after becoming a linked credit provider of the supplier, the credit provider had not had cause to suspect that- (aa) the consumer might be entitled to recover an amount

of loss or damage suffered as a result of misrepresen- tation or breach of a condition or warranty referred to in sub-section (1); and

(bb) the supplier might be unable to meet the liabilities of the supplier liabilities as and when they fall due;

(c) where the proceedings relate to a contract of sale with respect to which a tied loan contract applies, that-

(i) after due inquiry before becoming a linked credit provider of the supplier, the credit provider was satisfied that the reputation of the supplier in respect of the supplier's financial standing and business conduct was good; and

(ii) after becoming a linked credit provider of the supplier, but before the tied loan contract was entered into, the linked credit provider had not had cause to suspect that-

1994 53Fair Trade PracticesNo. 4

(aa) the consumer might, if the contract was. entered into, be entitled to recover an amount of loss or damage suffered as result of misrepresentation, breach of con- tract or failure of consideration in relation to the con- tract or as a result of a breach of a sub-section (1); and

(bb) the supplier might be unable to meet the liabilities of the supplier's as and when they fall due, or

(d) where the proceedings relate to a contract of sale with respect to which a tied continuing credit contract entered into by the linked credit provider applies, that, having regard to- (i) the nature and volume of business carried on by the linked

credit provider; and (ii) such other matters as appear to be relevant in the cir-

cumstances of the case, the linked credit provider, before becoming aware of the contract of sale or of proposals for the making of the contract of sale (whichever the linked credit provider first became aware of), had not cause to suspect that a person entering into such a contract with the supplier might be entitled to claim damages against to claim damages against, or recover a sum of money from, the supplier for misrepresentation, breach of contract, failure of consideration, breach of a condition or breach of a warranty as referred to in subsection (1).

(4) Subject to subsection (5), in any proceedings in relation to a contract referred to in paragraph (1) (a) or (b) which a credit provider claims damages or an amount of money from a consumer, the consumer may set up the liability of the credit provider under subsection (1) in diminution or extinction of the consumer's liability.

(5) Subject to sub-section (6), a consumer may not, in respect of a liability for which, by reason of this section, a supplier and a linked credit provider are jointly and severally liable-

(a) bring proceedings to recover an amount of loss or damage from the credit provider; or

(b) where proceedings are brought against the consumer by the credit provider, make a counter claim or exercise the right conferred by sub-section (4) against the credit provider,

unless the consumer brings the action against the supplier and the credit provider jointly or, in the case of a counter claim or right conferred by sub-section (4), claims in the proceedings against the supplier in respect of the liability by third party proceedings or otherwise.

(6) Sub-section (5), sub-section (8) (a) and sub-section (9) (a) do not apply in relation to proceedings where-

(a) the supplier has been dissolved or is commenced to be wound up; or

1994Fair Trade Practices54 No. 4

(b) in the opinion of the court.in which the proceeclings are, taken, it is not reasonably likely that a judgment obtained against the- supplier would be satisfied and the court has on the application of the consumer, declare that sub-section (5) and paragraph (a) of sub-section (8) and paragraph (a) of sub-section (9) do not applv in relation to the proceedings.

(7) The liability of a linked credit provider to a consumer for damages or a sum of money in respect of a contract referred to in sub-section (1) does not exceed them sum of-

(a) the amount financed under the tied loan contract, tied continuing credit contract, lease contract, contract of hire or contract of hire purchase;

(b) the amount of interest (if any) or damages in the nature of interest allowed or awarded against the linked credit provider by the court; and

(c) the amount of costs (if any) awarded by the court against the linked credit provider or supplier or both.

(8) Where in proceedings arising under sub-section (1), judgment is given against a supplier and a linked credit provider, the judgment-

(a) shall not be enforced against the linked credit provider unless a written demand made on the supplier for satisfaction of the judge- ment has remained unsatisfied for not less than thirty days, and

(b) may be enforced against the linked credit provider only to the extent of- (i) the amount calculated in accordance with sub-section

(ii) so much of the judgment debt as has not been satisfied by the supplier,

whichever is the lesser. (10) Unless the linked credit provider and supplier otherwise agree,

the supplier is liable to the linked credit provider for the amount of a loss suffered by the linked credit provider, being an amount not exceed- ing the maximum amount of the linked credit provider's liability under sub-section (7) and, unless the court otherwise determines, the amount of costs (if any) reasonably incurred by the linked credit provider in defending the proceedings by reason of which the liability was incurred.

(11) Notwithstanding any other law, where in proceedings arising under sub-section (1), judgment is given against a supplier and a linked credit provider or against a linked credit provider for an amount of loss or damage, the court in which the proceedings are taken shall, on the application of the consumer, unless goods cause is shown to the contrary, award interest to the consumer against the supplier and credit provided or against the credit provider as the case may be, upon the whole or a

1994 55Fair Trade PracticesNo. 4

part of the amount, from the time when the consumer became entitled to recover the amount Until the date on which the Judgment is given, at whichever of the following rates is the greater- -

(a) where the amount payable by the consurner to tile credit provider for the obtaining of credit provider for the obtaining of credit in connection with the goods or services to which tile proceedings relate may be calculated at a percentage rate per anum - that rate or, if more than one such rate may be calculated, the lower or lowest of those rates;

(b) eight percent or such other rate as is prescribed. (12) in determining whether good cause is shown against awarding

interest under sub-section (1-1) on the whole or part of an amount of loss or damage, the court shall take into account any payment made into court by the supplier or credit provider.

(13) Where a judgment given in proceedings arising under sub-sec- tion (1) is enforced against a linked credit provider of a particular supplier, the credit provider is subrogated to the extent of the judgment so enforced to any rights that the consumer would have had but for the judgment against the supplier or any other person,

(14) In this section- 11 credit provider'' means a person providing, or proposing to provide,

in the course to a business carried on by him, credit to consumers in relation to the acquisition of goods or services;

''linked credit provider'', in relation to a supplier, means a credit provider (a) with whom the supplier has a contract. arrangement or under-

standing relating to- (i) the supply to the supplier of goods in which the supplier

deals; (ii) the business carried on by the supplier of supplying goods

or services; or (iii) the provision to persons to whom goods or services are sup-

lied by the supplier of credit in respect of payment for those goods or services; or

(b) to whom the supplier, by arrangement with the credit provider, regularly refers persons for the purpose of obtaining credit;

(c) whose forms of contract or forms of application or offers for credit are, by arrangement with the credit provider, made avail- able to persons by the supplier; or

(d) with whom the supplier has a contract, arrangement or under- standing under which contracts or applications or offers for credit from the credit provider may be signed by persons at premises of the supplier;

1994Fair Trade Practices56 No. 4

''tied continuing credit contract'' means a continuing credit contract under which a credit provider provides credit in respect of the payment by a consumer for goods or services supplied by a supplier in relation to whom the credit provider is a linked credit provider;

''tied loan contract'' means a loan contract entered into between a credit provider and a consumer where- (a) the credit provider knows or ought reasonably to know that the

consumer enters into the loan contract wholly or. partly for the purposes of payment for goods or services supplied by a supplier; and

(b) at the time the loan contract is entered into the credit provider as a linked credit provider of the supplier.

80--(1) .In every contract for the supply by a supplier in the course of a business of services to a consumer there is an implied warranty that

Warran- ties in re- lation to the services will be rendered with due care and skill and that any materialsthe supplied in connection on with those services will be reasonably fit forof services the purpose for which are supplied.

(2) Where a person supplies services (other than services of a profes- sional nature provided be a qualified architect or engineer) to a consumer in the course of a business and the consumer, expressly or by implication, makes known to him any particular purpose for which the services are required or the result that he desires the services to achieve, there is an implied warranty that the services supplied under the contract for the supply of the services and any materials supplied in connection with those services will be reasonably fit for are of such a nature and quality that they for that purpose might reasonably be expected to achieve that result, except where the circumstances show that the consumer does not rely or that it is unreasonable for him to rely on the persons skill or judgment.

(3) A reference in this section to services does not, include a reference to services that are, or are to be, provided, granted or conferred under-

(a) a contract for or in relation to the transportation or storage of goods for the purposes of a business, trade, profession or occu- pation carried on or engaged in by the person for whom the goods are tansported or stored; or

(b) a contract of insurance.

81-(1) Where-Actions in respect of

(a) a person, supplies goods manufactured by him to another person Who acquires the goods for re-supply;

unsuitable goods

(b) a person (whether or not the person who acquired the goods from another person) supplies the goods (otherwise than by way of sale by auction) to a consumer;

1994 57Fair Trade Practice'No. 4

(c) the goods are acquired by the consumer for a particular purpose that was, expressly or by implication, made known to the person, either directly, or through the person from whom the consumer acquired the goods or a person by whom any antecedent negoti- ations in connection with the acquisition of the goods were con- ducted;

(d) the goods are not reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied; and

(e) the consumer or a person who acquires the goods from, or delivers title to the goods through or under the consumer suffers loss or damage by reason that the goods are not reasonably fit for that purpose,

he has little to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against him in a court of competent jurisdiction.

(2) Sub-section (1) does not apply- (a) if the goods are not reasonably fit for the purpose referred to in

that sub-section by reason of- (i) an act or default of any person (not being the person or a

servant or agent of the person); or (ii) a cause independent of human control, occurring after the

goods have left the control of the person; or (b) where the circumstances show that the consumer did not rely,

or that it was unreasonable for the consumer to rely, on the skill or judgment of the person

82.--(l) Where- Actions in respect Of(a) a person supplies goods manufactured by. the person to another

person who acquires the goods for re-supply false de- scription

(b) a person (whether or not the person who acquired the goods from the person) supplies the goods (otherwise than by way of sale by auction) to, a consumer by description;

(c) the goods do not correspond with the description; and (d) the consumer or a person who acquires the goods from, or derives

title to the goods through or under, suffers loss -or damage by reason that the goods do not correspond with the description,

he is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against him in a court of competent jurisdiction.

1994Fair Trade Practices58 No. 4

(2) Sub-section (1) does not apply if the goods do not correspond with the description referred to in that sub-section by reason of-

(a) a act or default of any person; (b) a cause independent of human control,

occurring after the goods have left the control of that person. (3) A person is not liable to compensate a person for loss or damage

suffered by the person by reason that goods do not correspond with a description unless the description was applied to the goods-

(a) by or on behalf of him;, or (b) with his consent whether express or implied.

(4) If the goods referred to in sub-section (1) are supplied to the consumer by reference to a sample as well at by description, it is not a defence to an action under this section that the bulk of the goods corres- ponds with the sample if the goods do not also correspond with the description

(5) A supply of goods is not prevented from being supply by descrip- ion for the Purpose of sub-section (1) by reason only that, being exposed for sale or hire, they are selected by the consumer.

83;-(I) Where-Actions in rapect of

(a) a person supplies goods manufactured by him to another person who acquires the goods for re-supply;

goods of unmer- chantable

(b) a person (whether or not the person acquired the goods fromquality. him) supplies the goods (otherwise than by way of sale by auction) to a consumer;

(c) the. goods are not of merchantable quality; and (d) the consumer or a person who acquires the goods from, or derives

title to the goods thorough or under, the consumer suffers loss or damage by reason that the goods are not of merchantable quality,

such person is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other, person may recover the amount Of the compensation by action against him in a court of competent jurisdiction.

(2) Sub-section (1) does not apply- (a) if the goods are not of merchantable quality by reason of-

(i) an act or default of any person; or (ii) a cause independent of human control,

occurring after the goods have left the control of the person;

Fair Trade Practices 1994 59No. 4

(b) as regards defects specifically drawn to the consumer's attention before the making of the contract for the supply of the goods to the consumer; or

(c) if the consumer examines the goods before that contract is made, as regards defects that the examination ought to reveal.

(3) Goods of any kind are of merchantable quality within the meaning of this section if they are as fit for the purpose or purpose for which goods of that kind are commonly bought as it is reasonable to expect having regard to-

(a) any description applied to the goods by him; (b) the price received by him for the goods (if relevant); and (c) all the other relevant circumstances.

84.-(1) Where- Action in respect of

(a) a person supplies goods manufactured by him to another with non-cor. person who acquires the goods for goods for re-supply; respon-

dence(b), a person (whether or not the person who acquired the goods samples, from the another person) supplies the goods (otherwise than by way of sale by action) to a consumer;

etc.

(c) a goods are supplied to the consumer by reference to a sample; (d) the bulk of the goods does not correspond with the sample in

quality or the goods have a defect, rendering them unmerchant able, that is not, or would not be, apparent on reasonable exami- nation of the sample; and

(e) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers--loss or damage by reason that the bulk does not correspond with the sample in quality or by reason that the goods have that defect,

he is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the loss or damage by action against him in a court of com- petent jurisdiction.

(2) Sub-section (1) does not apply where- (a) the sample is not supplied by the person; (b) the supply by sample is made without the express or implied

concurrence of the person; or (c) the failure of the bulk of the goods to correspond with the sample

in quality or he existence of the defect is due to- (j) default of any person or cause independent of human control,

occurring after the goods have left the control of the person; or

Fair Trade Practices60 No. 4 1994

(ii) other circumstances that were beyond the control of him and that it could not reasonably be expected to have foreseen.

85.-(1) Where-Actions in respect of (a) a person supplies goods (otherwise than by way of sale by auction)

manufactured by him to a consumer; failure to provide facilities (b) a person, supplies goods manufactured by him to another personfor repairs

who acquires the goods for re-supply and a person (whether or not the person acquired the goods from him) supplies the goods (otherwise than by way of sale by auction) to a consumer, and

or parts

(c) at a time (in this section referred to as the 'relevant time') after the acquisition of the goods by the consumer- (i) the goods required to be repaired but facilities for their

repair are not reasonable available to the consumer or a person who acquires the goods from or derives title to the goods through or under, the consumer; or

(ii) a part is required for the goods but the part is not reasonably available to the consumer or a person who acquires the goods from or derives title to the goods through or under, the consumer;

(d) the person acted unreasonably in failing to ensure that facilities for the repair of the goods were, or that the part was reasonably available to the consumer or that other person at the relevant time; and

(e) the consumer or that other person,- suffers loss or damage by reason of the failure of the supplier to ensure that facilities for the repair of goods were, or that the part was, reasonably, available to the consumer or that other person at the relevant time.

he is liable to compensate the consumer or that other-person for the loss or damage and the consumer or, that other person may recover the amount of the compensation by action against him in a court of competent jurisdiction.

(2) Sub-section (1) does not apply where the person took reasonable action to ensure that the consumer acquiring the goods would be given notice at or before the time when he acquired the goods that-

(a) he did not promise that facilities for the repair of the goods, or that parts for the goods, would be available; or

(b) he did not promise that facilities for the repair of the goods, or that parts for the goods, would be available after a specified period, being a period that expired before the relevant time.

(3) Where the person took reasonable action to ensure that the con- sumer acquiring the goods would be given notice at or before the time when he acquired the goods that he -did not promise that-

1994 61No. 4 Fair Trade Practices

(a) facilities for the repair of the goods, being facilities of a kid specified in the notice, would be available;

(h) parts for the goods, being parts of a kind specified in the notice, would be available; or

(c) facilities for the repair of the goods would be available at, or parts for the goods would be available from, a place or places specified in the notice,

he is not liable to compensate the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer for loss or damage suffered by the consumer-or that other person by reason of the failure of person to ensure that facilities or parts of the kind specified in the notice, or parts of the kind specified in the notice, were available, or that facilities for the repair of the goods were available at, or parts for the goods were available from a palace or places specified in the notice, as the case may be.

(4) In determining whether a person acted unreasonably in failing to.ensure that facilities for the repair of goods were, or that a part was, reasonably available to a person at the relevant time, a court shall have regard to all the circumstances of the case, and in particular to the , facilities or that part being so available, being circumstances beyond the control of the person.

86.-(I) Where- Actions in respect of

(a) a person supplies goods (otherwise than byway of sale by auction) manufactured by him to a consumer; or

non-corn- pliance with ex-

(b) a person supplies goods manufactured by him to another person press war- who acquires the goods for re-supply and a person. (whether or not the person acquired the goods from him) supplies the goods (otherwise than by way of sale by auction) to a consumer; and

ranty

(c) a person fails to comply with an express warranty given or made by him in relation to the goods; and

(d) the consumer who acquires the goods from him suffers loss or damage by reason of the failure,

he is liable to compensate the consumer for the loss or damage and the consumer may recover the amount of the compensation by action against him in a court of competent jurisdiction.

(2) For the purposes of any action instituted by a person against a person under this section, where-

(a) an undertaking, assertion or representation was given or made in connection with the supply of goods or in connection with the promotion by any means of the supply or use of goods; and

1994Fair Trade Practices62 No. 4

(b) the undertaking, assertion or representation would, if it had been given or made by him or a person acting on its behalf, have constituted an express warranty in relation to the goods,

it shall be presumed that the undertaking, assertion or representation was given or made by him or a person acting on his behalf unless he proves that he did not give or make, and did not cause or permit the giving or making of, the undertaking, assertion or representation.

87. Where-Right of seller to

(a) a person (in this section referred to.as the seller') is under arecover liability to another person in respect of loss or damage suffered by the consumer as a result of a breach of a condition or warranty implied by a provision of his part in a contract for the supply of goods (whether or not the goods are, of a kind ordinarily acquired for personal, domestic or household use, or consumption) by the seller to the consumer; and

against manufac- ture or im- porter.

(b) a third person (in this section referred to as the manufacturer')- (i) is liable to compensate the consumer in respect of the same

loss or damage by reason of the provisions of t-his Part; or (ii) in a case where the goods referred to in paragraph (a) are

not of a kind ordinarily acquired for personal, domestic or household use or consumption would, if the provisions of sections 81, 82, 83 and 84 applied in relation to those goods, be liable to compensate the consumer in respect of the same loss or damage by reason of any of those provisions,

the manufacturer is liable to indemnify the seller in respect of the liability of the seller to the consumer and the seller may, .in respect of the manufacture's is liability to indemnify 'the, setter, institute an action against the manufacturer in a court of competent jurisdiction for such legal or equitable relief as the seller could have obtained if the liability of the manufacturer to indemnify the seller had arisen under a Contract of indemnity made between the manufacturer and the seller.,

88.-(I) Subject to this section, an action under a provision of this Part may be commenced at any time within three years after the day on which the cause of action accrued.

Time for commen- cing ac- tions

(2) For the purposes of this section, a cause of action shall be deemed to have accrued-

(a) in the case of an action other than an action under section 87, on the day on which the consumer or a person who acquired the goods from or derived title to the goods through or under, con- sumer first became aware, or ought reasonably to have become aware-

(i) in the case of an action under section 87, that the goods were 'not reasonably fit for the purpose referred to in that section;

1994 63Fair Trade PracticesNo. 4

(ii) in the case of an action under section 82, that the goods did not correspond with the description referred to in that sec- tion;

(iii) in the case of an -action under section 93, that the goods were not of merchantable quality;

(iv) in the case of an action Wider-section 84, that the bulk of the goods did not correspond with the sample in quality or the goods had the defect referred to in the section;

(v) in the case of an action under section 85-that the goods required to be repaired or that the part was required for the goods, as the case may be; or

(vi) in the case of an action under section 86, of the failure of the corporation to comply with the express warranty referred to in that section; or

(b) in the case of an action under section 87, on- (i) the day, or the first day, as the case may be, on which the

seller referred to in that section made a payment in respect of, or otherwise discharged in whole or in part, the liability of that seller to the consumer or that other person; or

(ii) the day on which a proceeding was instituted by the con- sumer or that other person against that seller in respect of that liability or, if more than one such proceeding was insti- tuted, the day on which the first such proceeding was insti- tuted,

whichever was the the earlier. (3) In an action under a provisions of this Part, it is a defence if the

defendant proves that the action was not commenced within ten years after the time of the first supply to consumer of the goods to which the action relates.

89.-(l) Any term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) that purports to exclude, restrict of modify, or has the effect of excluding, restricting or modifying, any liability of a person to compensate or indemnify another person that may arise under this Part is void.,

Applica- tion of di- vision not to be excluded or mod- ified

(2) A term of a contract shall not be taken to exclude, restrict or modify the application of a provisions of this Part unless the term does so expressly or is inconsistent with that provision.

(3) Nothing in this section applies to a term of a contract referred to in sub-section 90 (4).

1994Fair Trade Practices64 No. 4

90.-(l) Notwithstanding section 87 but subject to this section, in the case of goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability under that sec- tion of a manufacturer to a seller is limited to a liability to pay to the seller an amount equal to-

Limita- intion

certain cir- curnstanc es of lia- bility of

(a) the cost or replacing the goods;manufac- (b) the cost of obtaining equivalent goods;ture to sel- (c) the cost of having the goods repaired, whichever is the lowestIer

amount. (2) Sub-section (1) does not apply in relation to particular goods if

the seller established that it not fair or reasonable for the liability of the manufacturer in respect of those goods to be limited as mentioned in sub-section (1).

(3) In determining for the purposes of sub-section (2) whether or not it is fair or reasonable for the liability of a manufacturer to a seller in respect of goods to be limited as mentioned in sub-section (1), a court shall have regard to all the circumstances of the case and, in particular, to-

(a) the availability of suitable alternative sources of supply of the goods;

(b) the availability of equivalent goods; and- (c) whether the goods were manufactured, processed or adapted to

the special order of the seller. (4) This section is subject to any term of a contract between the

manufacturer and the seller imposing on the manufacturer a greater liability than the liability mentioned in sub-section (1).

(5) In this section, the expressions 'manufacture' and 'seller' have the same respective meanings as in section 87.

Rescis- 91.-(l) Where- sion of contracts (a) a person supplies goods to a consumer in the course of a business

and (b) there is a breach of a condition that is, by virtue of a provision

in this Part, implied in the contract for the supply of the goods, the consumer is, subject to this section, entitled to rescind the contract by-

(i) causing to be served on the supplier a notice in writing signed by him giving particulars of the breach; or

(ii) causing the goods to be returned to the supplier and giving to him either orally or in writing, particulars of the breach.

(2) Where a consumer purports to rescind under this section a contract for the supply of goods by any person the purported rescission does, not have any effect if-

Fair Trade Practices 1994 65No. 4

(a) the notice is not served or the goods are not returned within a reasonable time after the consumer has had a reasonable oppor- tunity of inspecting the goods;

(b) in the case of a rescission effected by services of -a notice, after the delivery of the goods to the consumer but before the notice is served-

(i) the goods were disposed of by the consumer, were slots, or were destroyed otherwise than by reason of a defect in the goods;

(ii) the consumer caused the goods to become unmerchantable or failed to take reasonable steps to present the goods from becoming unmerchantable; or

(iii) the goods were damaged by abnormal use; or (c) in the case of a rescission effected by return of the goods, while

the goods were in the possession of the consumer- (i) the consumer caused the goods to become unmerchantable

or failed to take reasonable steps to prevent the goods from becoming unmerchantable; or

(ii) the goods were damaged by abnormal use. (3) Where a contract for the Supply of goods by any person to a

consumer has been rescinded in accordance with this section- (a) if the property in the goods had passed to the consumer before

the notice of rescission was served on, or the goods were returned to him, the property in the goods re-vests in the supplier upon the service of the notice or the return of the goods; and

(b) the consumer may recover from the supplier as a debt, the amount or value of any consideration paid or provided by him for the goods.

(4) The right of rescission conferred by this section is in addition to, and not in derogation of, any other right or remedy under this Act or any other Act. 92. Whenever the terms and conditions which are to govern any con- sumer transaction are to be included. whether wholly or in part, in a - standard form contract shall be registered with the commissioner in accordance with the regulations to be made by Minister under this Act. 93. (1) For the purpose of this Part all coast incurred by a part to Costs a litigation before a court or Tribunal as the case may be shall be borne by each party.

(2) Notwithstanding the provision of subsection (1), the Tribunal or court may, if it is of the opinion that the circumstances of the case so warrant, order one of parties to bear tile Costs.

Standard from con- tracts

Fair Trade Practices 199466 No. 4

PART VII MISCELLANEOUS PROVISIONS

94.-(1) For the purposes of assisting him-Power to obtain in-

(a) to determine whether any goods or any service shall be madeformation the subject of an order under this Act in fixing the prices therefor; or

(b) to decide the manner in which the powers conferred on him by this Act shall be exercised in respect of any goods or any service, the Minister may, from time to time, by notice published in the Gazette, or by notice in writing served on such person, require any trader, manufacturer, producer, transporter or any other person supplying any goods or rendering any service

(i) to furnish to the Commissioner, either verbally or in writing, and in such form as the Minister may specify in such notice, any information in relation to his trade or business, either by way of periodical return or otherwise;

(ii) to produce for inspection by the Commissioner any books, accounts or other documents relating to his trade or busi- ness, and to submit to the Commissioner samples of any goods in which he deals.

(2) No person shall be required under subsection (1) to furnish any balance-sheet or profit and loss account, but this subsection shall not prevent the requiring of information by reason only that it is or might be contained as an item in such a balance-sheet or profit and loss account.

(3) Any notice authorized to be served under subsection (1) on any person believed to be carrying on any trade or business therein mentioned shall be deemed to be duly served if it is addressed to him by the description of ''the occupier'' of the premises upon which the trade or business in question is believed to be carried on, and delivered to some person, not appearing to be merely a subordinate employee, on the premises.

(4) No information relating to any particular trade or business ob- tained under this section shall be published or otherwise disclosed with- out the prior consent in writing of the person by whom the information was furnished:

(5) Nothing in this section shall restrict the disclosure of information (i) to any Minister responsible for, or any officer of, any minis-

try or department of the Government; (ii) to any person or any authority having any functions in rela-

tion to the development or regulation of trade or business in the country; or

1994 67Fair Trade PracticesNo. 4 - (iii) to any person for the purpose of legal proceedings, or the

use of such information in any manner which the Minister thinks necessary or expedient in connection with the pur- poses of this Act.

95.-(I) The Commissioner or any person authorized in writing by the Commissioner, or any police officer of or above the rank of inspector, is empowered-

General powers A the com missioner

(a) to enter any premises in the occupation or under the control of any trader, manufacturer, producer, commission agent, clearing and forwarding agent, transporter or any other person supplying any goods or rendering any price-controlled service

(b) to inspect any such premises as are specified in paragraph (a)-, (c) to examine any books, accounts or other documents relating to

the trade or business of any person specified in paragraph(a) and to require a copy of any such book. account or other document or of the record of any transaction which he has reasonable cause to believe relates to price-controlled goods or price-controlled services to be provided and to be certified fly Such person*, and where any such books, accounts or other documents or records are in a language other than Kiswahili language, and he is satisfied that any such person can provide or obtain a translation, and further to required that any Such books, accounts or other documents to be deposited at his office for examination; or

(d) to require, from time to time, by notice in writing served upon any person specified in paragraph (, Such person to furnish verbally or in writing and in such form as may be required, such information in relation to his trade or business as may be specified in such notice.

(2) Upon entering any premises in pursuance of the powers conferred by, paragraph (a) of subsection (1), the commissioner or any other person so authorized to enter the premises, or any police officer Of Or above the rank of inspector, shall, before proceeding), to exercise any of the powers conferred by subsection (1), inform the person present on Such premises who is or who reasonably appears to be for the time being in charge of such premises of his intention to exercise his powers under subsection (1).

(3) When any books, accounts or other documents are deposited in pursuance of paragraph (c) of subsection(1), the person who has required the deposit of such books, accounts or other documents shall-

(a) furnish the owner thereof with a receipt therefor-, (h) be responsible to the owner thereof for the sate custody Of the

books accounts or other documents-, and (c) return the books accounts or other documents to the owner

thereof within thirty days.

199468 No. 4 Fair Trade Practices-

(4) Nothing in subsection (3) shall be construed as requiring any person to return or be responsible for the safe custody of any books, accounts or other documents which have been handed to the police or which have been produced as exhibits in proceedings before any court.

(5) The Commissioner is empowered- (a) to require, by notice published in the Gazette, in respect of any

goods, that when exposed or offered for sale, they shall bear such mark or label as may be specified in such notice for the purpose of indicating their quality, grade, weight or other mea- sure, price or place of origin;

(b) to prohibit or regulate in like manner, the sale, purchase, disposal or movement by any person of any price-controlled goods in such manner as he may direct;

(c) to require, by notice in writing served upon such person., any person who is in possession of any price-controlled goods to sell the goods. to that person and in such manner and at such price or charge as he may specify in the notice;

(d) to require, in like manner, any trader, manufacturer, producer or commission agent to submit to him samples of 'any price-con- trolled goods in which he deals;

(e) to direct, in like manner, the place in which any price-controlled goods may be stored;

(f) to demand, in like manner, from any person in apparent posses- sion of any price-controlled goods, who alleges that such goods or any of them have already been sold by him, the immediate production of the invoice, contract or other documentary evidence of the sale.

(6) The Commissioner may- (a) by notice published in the Gazette or by a notice in writing served

upon, or left at the place of business of, any trader, manufacturer, producer, commission agent, clearing and forwarding agent or transporter or any person who renders any service-

(i) require, in relation to any price-controlled goods or any price-controlled service, any such person as and from a date to be specified in such order to endorse on any sales invoice any information, directions or such other particulars as may be specified in such notice;

(ii) require, in relation to any price-controlled goods or any price-controlled service, that such information, directions or other particulars shall be declared in writing to an intend- ing purchaser or other person before any sale or rendering of service;

1994 69Fair Trade PracticesNo. 4

(b) determine- (i) what constitutes a wholesale or retail quantity; (ii) what constitutes a wholesale or a retail transaction;

(c) with the approval of the Minister, prohibit or regulate the move- ment of any goods.

(7) The Commissioner shall acknowledge all correspondence pertain- ing to price changes within sixty days of the receipt of that correspon- dence.

(8) Whenever a person has overcharged in respect or any price-con- trolled goods which he has sold or in respect of any price-controlled service which he has rendered, the Commissioner may, irrespective of any action that in y have been taken or that may be taken against the person under this Act , direct to him to refund a sum equal to twice the overcharge.

(9) The sum to be refunded shall within a time specified by the Com- missioner, be paid to him, and he shall refund to the purchaser the amount constituting the overcharge and such other sum as he may in his absolute discretion consider reasonable, and shall pay the balance, if any, into the Consolidated Fund. (10) Where it appears that, in determining the selling price or price-con- trolled goods, the seller thereof has complied with this Act but that the price charged by any previous seller of those goods was in excess of the maximum price, the Commissioner may direct the previous seller to refund a sum equal to twice the amount by which the price paid by such purchaser exceeded the maximum price which he would have been re- quired to pay for the goods, if the provisions of this Act had been observed by each of the persons who dealt in the goods up to the time of their acquisition by such purchaser.

(11) The sum to be refunded shall be paid to the Commissioner who shall refund to the ultimate purchaser the amount by which the price paid by the purchaser exceeded the maximum price which he would have been required to pay for the goods if the provisions of this Act had been observed by each of the persons who dealt in those goods up to the time of their acquisition by the purchaser, and such other sum (not exceeding the balance of the sum refunded by the seller) as he may consider reasonable, and shall pay the balance, if any into the Consoli- dated Fund.

(12) For the purposes of this section, ''trader'' includes an auctioneer.

96.-(1) The Commissioner may, with the approval of the Minister, Delega- delegate in writing all or any of his powers, duties or functions under tion of this Act, either generally, or in any area in the country, or for such powers periods or purposes as he may specify, to any person approved by the Minister, and may at any time revoke or vary such delegation.

1994Fair Trade Practices70 . N o. 4- 97.-(l) The Commissioner may, at any time and from time to time

and without assigning any reason therefor, cancel, revoke, amend or vary any permit, exemption or permission which he may have granted

Power to revoke or vary per- mits, etc.

under this Act. (2) Any person aggrieved by the decision of the Commissioner may

appeal to the Minister within twenty one days from the day of communi- cation to the person concerned of the Commissioners decision; and the decision of the Minister shall be final.

Certifi- 98.-(1) The Commissioner or any public officer authorized by himcates may in writing certify (a) the maximum price that has been fixed for any wholesale or retail

sale of any price-regulated goods; (b) what constitutes a wholesale or what is wholesale or retail quan-

tity; (c) the precise amount of the overcharge invoiced in any transaction,

subject to proof that such transaction has constituted an offence involving overcharge;

(d) that any exemption or permission which may be given under this Act by the Commissioner has or has not been given;

(e) the maximum percentage of profit allowed upon the sale of any percentage fixed goods;

(f) in any proceedings concerning the price at which price-controlled goods were sold, if such price is not expressed in Tanzanian shil- lings, then the equivalent selling price in Tanzanian shillings;

(g) the maximum service charge that has been fixed for any price-con- trolled service.

(2) In any proceedings instituted in any court under this Act, any fact so certified by the Commissioner or any public officer authorized by him shall be admitted without further proof as prima facie evidence of the fact so certified

(3) In any proceedings in any court arising out of the provisions of this Act, the certificate of the Commissioner or any public officer au- thorized by him as to what constitutes a wholesale or a retail sale, or as to what constitutes a wholesale or retail quantity, in respect of the subject matter of such proceedings shall be final and conclusive.

99. If a magistrate is satisfied by information on oath that there is reasonable grounds for suspecting that an offence has been committed under this Act, and that evidence of the commission of the offence is to be found on any premises specified in the information, he may grant a search warrant authorizing the Commissioner or any officer authorized by the Commissioner or any police office to enter the premises at any time within one month from the date of the warrant, and to search the premises and seize any goods found on the premises which the person so authorized has , reasonable ground for believing to be evidence of the commission of the offence.

Power to enter and search

Fair Trade Practices 1994 71No. 4

100.-(l) The Commissioner or any officer authorized by him or any Power of police officer of or above the rank of inspector, if he has reasonable entry and

seizurecause to believe that any offence under this Act is being committed on any premises, or if he has reasonable cause to believe that any goods, in respect of which there is reasonable ground for suspecting that any such offence has been committed, are in or upon any premises, and that the delay which would occur in obtaining a search warrant as provided under section 99 would defeat the purposes of this Act, may enter and search the premises without a search warrant for -the purpose of ascer- tainting if an offence is being committed or whether or not the goods are, in or upon such premises, and may inspect such goods and any documents relating to them, and may seize any goods or documents on such premises which the person so searching or inspecting has reasonable cause to believe to be evidence of the commission of such an offence.

(2). The I provisions of section 38(3) and (4) of the Criminal Procedure Act relating to search and seizure so far as may be, shall apply in respect of subsection (~) of, this section.

(3) No prosecution against any person for an offence under subsection (2) shall be instituted except with the written consent of the Director of Public Prosecutions.

(4) The Commissioner or any officer authorized by him may, in con- nection with the investigation of any alleged offence arising out of a test purchase involving payment with marked money, search any person for the marked 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 any marked money so found.

101.-(1) If any police officer, has reason to believe that any vehicle Power to• . . search contains any goods which are being transported -contravention of any of vehicles the provisions of this Act, he may order such' vehicle to stop, and may and seize examine the contents thereof, and if that person fails to stop he commits goods an offence.

(2) Where any vehicle has been stopped under subsection (1),, the person stopping the vehicle may take it with its goods to the nearest police station,. and the officer in charge of the police station may there- upon seize any goods found therein, being goods which the officer has reasonable cause to believe are goods in respect of which an offence under this Act is or has been committed.

102. Where any goods have been seized under sections 99, 100 or 101 the person who has seized the goods shall. forthwith report to a magistrate the fact of the seizure, and if a magistrate is satisfied that the goods are of a perishable nature, or that, by reason of the fact the market for goods is seasonal, or for other good reasons, to delay the disposal of the same would otherwise unduly prejudice the owner thereof, he may authorize the Commissioner to sell or otherwise dispose of the goods

Procedure on seizure of goods

1994Fair Trade Practices72 No. 4 -

Retention 103.-(l) Where any vehicle, goods or money has been seized under section 99, 1.00 or 101 the vehicle, goods or money may be retained for a period not exceeding thirty days, or, if within that period proceedings are commenced for any offence under this Act, until the final determi nation of those proceedings.

and dis- posa] of' seized goods

(2) Where proceedings are taken for any offence under this Act, the court by or before which the alleged offender is tried may make Such order as to the forfeiture of the vehicle or goods in respect of which such offence was committed, or as to the disposal of any vehicle, goods or money seized in connection therewith, as the court shall see fit.

(3) In this section, ''goods'' shall be construed as including the pro- ceeds of the sale of any goods, where such goods have been sold in accordance with section 102.

Offence 104.-(l) Any person who sells any price-controlled goods or renders any price-controlled service at a price or charge which exceeds theto sell orpurchase maximum price or the maximum service charge, as the case may be, commits an offence.

above maximurn price (2) Subject to section 112, any person who purchases or offers to

purchase any price-controlled goods at a price or charge which exceeds the maximum price for the goods, or who pays, or offers to pay for any price-controlled service a charge which exceeds the maximum Service charge fixed therefor, commits an offence.

105. (1) Any person carrying on a business in the course of whichRefusal to sell goods any goods arc supplied, and who has in his possession a stock of the

goods and who (a) falsely denies that he has goods in his possession or ownership:

or (b) refuses or tails, except with the permission of the Commissioner

to supply the goods in reasonable quantities upon tender of im- mediate payment to the maximum price- there of (in the case of price-controlled goods) or the price indicated by any mark or label borne by the goods (iii the case of any other goods) or

(c) refuses of fails to expose or offer for sale such goods continuously when required by the Commissioner

commits an offence. (2) It shall be a good defence for a person charged an offense

under paragraph (b) of subsection (i) to prove that the supply of the goods would involve breach of an obligation lawfully imposed on him-course of which any price controlled goods are supplied shall be deemed

to have in his possession a stock of such goods if any such goods are being kept or stored in the premises where he is emplyed and if he sells such goods on behalf of his employer in the ordnary course of his ..' employment.

106. Any trade, manufacturer, producer or commission agent to whom an offer to buy price-controlled goods has been made, and who, except with the permission of the Commissioner imposes any Conditions of sale

IIIegal connditins

(3) the servant or agent of any person carrying on business in the

1994 73Fair Trade PracticesNo. 4

other than a condition requiring immediate payment on delivery thereof or prescribing terms within which Payment must be made or delivery taken, or a condition requiring a deposit in respect of any container of such goods, commits an offence.

107. Any person who- offence (a) obstructs or hinders any person authorized by this Act to enter toobstructand inspect or search any premises or to stop and search any

vehicle or to stop and search any vehicle or to examine any books, accounts or other documents or to seize any vehicle, goods or

au- thirties

money; or (b) refuses or delays or fails to produce any books, accounts or other

documents or certified copies or translations thereof relating to his trade or business which he may be required under this Act to produce; or

(c) refuses or delays or fails to furnish any information or, in pur- ported compliance with any requirement of this Act, knowingly or without reasonable grounds for believing the same to be true furnishes information which is false or misleading in any material particular, whether upon demand being made by a person au- thorized by this Act to demand the same or otherwise; or

(d) publishes or otherwise discloses any information in contravention of any provision of this Act;

(e) refuses or delays or fails to comply with any order, prohibition, direction, demand, requirement or notice lawfully made, given, issued, served or published under this Act,

commits an offence - 108.-(1) Any person who commits an offence under this Part shall

be liable on conviction to a fine not exceeding three million shillings or to imprisonment for a term not exceeding five years, or to both.

Penalties

(2) Where the offence in respect of which a person is convicted is an offence under section 104(l), that person shall, in addition to any other penalty which may be imposed, be liable to a fine of 'not less than five times the value of the overcharge, and in such a case the court may order that there shall be paid therefrom to the purchaser such as may in the opinion of the court serve to compensate him for any loss of time or any expenses which he may have incurred.

(3) Where any trader, manufacturer, producer, commission agent, clearing and forwarding agent, transporter, or person rendering any services has been found guilty of an offence under this Act, the court may, in addition to any other penalty to which the convicted person may be liable, make such order, having effect during such period, as the court thinks fit, for preventing the offender from carrying on, or being concerned directly or indirectly in the carrying on of, the business in the course of which the transaction constituting the offence was ef- fected, or any branch of that business, or in any business or branch of a business of a similar character.

1994Fair Trade Practices74 No. 4 ...

(4) Where a person charged with any offence under this Act is a body corporate, every person who, at the time of the commission of the offence, was a director, manager or officer of the body corporate may be charged jointly in the same proceedings with such body corporate, and where the body corporate is convicted of the offence, every such director, manager or officer shall be deemed to be guilty of that offence unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of the offence.

(5) Any partner in any firm shall be answerable for the acts or omis- sions of any other partner in the same firm in so far as they concern the 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.

(6) Any employer who employs in his shop, store or other place or business any agent, clerk, servant or other person shall be answerable for the acts or omissions of such agent, clerk, servant or other person in so far as they concern the business of such employer; and if such agent, clerk servant or other person commits any act or makes any omission which is an offence under this Act, or which would be an offence if made or committed by such employer, such employer and his agent, clerk, servant or other person shall be jointly and severally liable to the penalties provided under this Act.

(7) Notwithstanding the provisions of the Magistrates' Courts Act or of the Criminal Procedure Act relating to the jurisdiction of subordinate courts, any subordinate court may impose any penalty or any combina- tion of penalties prescribed under this Part.

Act No. 2 of 1984 Act No. 9 of 1985

109. In any proceedings in any court instituted for an offence under this Part, the production by the Commissioner, or any person authorized by him in writing, or by any police office, or by a public prosecutor within the meaning of the Criminal Procedure Act of an original invoice a duplicate invoice or a tripicate invoice purporting to have been found in the possession of the seller or a copy of such invoice certified by the Commissioner or by the seller shall, save where the prosecution alleges the falsity of the contents of such invoice, be prima facie evidence of a sale by the seller and of all the facts contained in such invoice, duplicate invoice or triplicate invoice or certified copy; and for the purposes of this subsection, ''sale'' includes the rendering of services.

Burden of proof Act No. 9 of 1985

Actions 110.-(I) Without prejudice to the provisions of this Act, any recog- nised consumer organization may initiate a consumer action before the Tribunal or any court of competent jurisdiction.

by con- sumer or- ganisa- tions

(2) A recognized consumer organization means an organization regis- tered and is officially recognized by the Commissioner as a consumer organization.