Goods Once Sold Are Not Returnable. Says Who?

 The Law You Live, Part One   

     

By Tim Munyi Mugo, Advocate 

It is a Saturday afternoon on Luthuli Avenue. A young man has just bought a phone. The seller demonstrated it beautifully. Screen bright, speakers loud, camera sharp enough to count the pores on your face. Money changed hands, the phone was wrapped with the speed of a relay baton exchange, and everyone smiled.

By Sunday morning the phone will not charge. By Sunday afternoon it will not switch on. On Monday our friend returns to Luthuli, where the seller listens with genuine sorrow, then points at a small sign hanging behind the counter and hidden in receipts, the same sign that hangs in shops from Kongowea to Kamukunji, usually printed in a font that has seen things. 

Goods once sold are not returnable.

Most buyers walk away at this point, defeated by the authority of receipt, or laminated paper. What almost nobody on that street knows is that a law older than the tarmac they are standing on has something to say about this transaction. It is called the Sale of Goods Act, Chapter 31 of the Laws of Kenya, and it was borrowed almost word for word from an English statute of 1893. It has outlived empires, currencies, and at least four generations of phone sellers. It applies every time you buy goods for money, whether the contract is written, spoken, or concluded with a nod and a wink.

Here is what it quietly writes into your everyday purchases.

The seller must actually own what they are selling. This sounds obvious until you meet the man selling a laptop at nine in the evening, in an alley, at a quarter of the shop price, while looking over his shoulder like a striker waiting for an offside flag. The law has a Latin phrase for this situation, nemo dat quod non habet. You cannot give what you do not have. If the laptop was stolen, the true owner can recover it from you, and your receipt becomes a souvenir of a lesson well paid for.

Goods sold by description must match the description. If you order size 42 shoes over the phone and size 39 arrives, the seller is in breach even if the shoes are objectively beautiful. Your feet are not obliged to negotiate.

Where you tell the seller your purpose and rely on their skill, the goods must be fit for that purpose. You walk into a hardware shop and say you need paint for a bathroom. The seller, nodding wisely, sells you paint that dissolves at the first hint of steam. That nod created a legal obligation. The Act implies a condition that the paint be reasonably fit for the purpose you disclosed. The seller's wisdom, it turns out, was rented to you at a price, and it came with a warranty.

Goods sold by sample must match the sample. Every Gikomba trader who has opened a mitumba bale knows this principle in their bones, even if they have never read a statute. If the sample at the top was Manchester quality and the middle of the bale is mosquito net quality, the law of 1893 is on the buyer's side, however loudly the seller protests.

Now for the part that keeps this column honest. The Act is not a rescue service for careless buyers. Caveat emptor, let the buyer beware, still has teeth. If you examined the goods and the defect was one your examination should have revealed, the law expects you to live with your choices. If the phone box said camera and you did not check whether the camera existed beyond the sticker, the courtroom will be a lonely place.

And now, water. Because water touches every life in this country before breakfast does.

 Piped water flowing through your tap is generally treated as a regulated service under the Water Act 2016, governed by tariffs and a regulator rather than by Chapter 31. But think about the water you buy when the taps go quiet. The bowser that fills your tank. The kiosk that fills your jerrican. The bottle you grab in traffic. That water is measured, priced, and delivered. It starts to look very much like goods.

 And if it is goods, then a familiar question follows. When a tanker delivers twenty thousand litres the colour of strong tea, and you bought that water for your family to drink, was there an implied condition that it be fit for its purpose? You told the seller nothing in words, but the purpose of drinking water announces itself. The seller who supplies water for domestic use may be carrying an obligation heavier than the tanker itself, whether or not anything was signed.

I will not answer that question for you today. Good law, like good tea, is better when it steeps for a while.

What I will say is this. The Sale of Goods Act is not a museum piece. It sits beside you in the matatu, walks with you through Gikomba, and rides on top of every water bowser in this city. The sign that says goods once sold are not returnable is not a magic spell that dissolves your rights. Printing a sentence on a receipt does not promote it into an Act of Parliament. Sometimes the sign is accurate. Often it is simply hopeful, and hope, as every Kenyan knows, is not a legal instrument

So the next time a seller points at that sign with a straight face, you may smile back politely, because now you know the sign carries a silent footnote, and the footnote is Chapter 31.

 

Next in this series, we ask who bears the loss when goods are destroyed after you have paid but before they reach you. If your gas cylinder falls off the boda between the shop and your gate, whose cylinder just died?

 

Stay with me. The law you live is more interesting than the law you fear.

 

*The author is an Advocate of the High Court of Kenya and Co-Founder of the Veritas Governance Institute.

 

Connect on LinkedIn: linkedin.com/in/tim-munyi-mugo-8194b024 

 

Catch you in the next blog!

 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance.