The Day Your Silence Started Talking

The Law You Live, Part 3

By Tim Munyi Mugo 

A woman buys shoes in town. They pinch slightly, but the seller assures her that leather stretches, and leather has been making that promise since the invention of feet. She wears them to a wedding on Saturday, to church on Sunday, and to the office on Monday. By Wednesday one sole has separated from its shoe with a finality that suggests it was never truly committed.

She returns to the shop. And here she meets a problem that has nothing to do with the sole.

The Sale of Goods Act gives buyers a genuine right to reject goods that breach the contract. But that right has a shelf life, and it can be lost in three (3) ordinary ways, all of which the woman in the shoes has now managed to perform in a single week.

You lose the right when you tell the seller you accept the goods. Simple enough, and rarely the problem.

You lose it when you do something with the goods that only an owner could properly do. Wearing shoes to a wedding is such an act. So is fitting the tyres, installing the sink, cutting the fabric, or eating half the bag of rice. The law calls this an act inconsistent with the seller's ownership. You cannot treat goods as thoroughly yours on Saturday and insist they were always his on Wednesday.

And you lose it by simply saying nothing for too long. Keep the goods beyond a reasonable time without complaining and the Act treats your silence as a yes. This is the quiet trap. Kenyans are polite about defects. We wait. We hope it corrects itself. We are busy, the shop is far, the matatu fare is more than the item is worth. Meanwhile the clock is running and the law is drawing conclusions from our patience.

Crucially, though, before any of this bites, you are entitled to a reasonable opportunity to examine the goods. If the fridge is delivered sealed in a box, you have not accepted it merely by signing the delivery note at the gate. Signing that you received a box is not the same as agreeing that the box contained a working fridge. Many sellers hope you will confuse the two.

Now, what happens after acceptance is the part that decides most Kenyan disputes.

The Act divides broken promises into conditions and warranties. A condition goes to the heart of the deal, and its breach lets you reject the goods and walk away. A warranty is a lesser promise, and its breach entitles you only to compensation. Once you have accepted goods, a breached condition is demoted. It sinks quietly to the level of a warranty. You keep the shoes, and your remedy shrinks to money.

So the woman in the shoes has not lost everything. She has lost the right to hand them back. If the leather was defective, she may still claim the loss she suffered. But the dramatic scene she rehearsed all the way to town, where she places the shoes on the counter and demands her money, is no longer available to her. She sold that scene for one wedding, one church service, and one day at the office.

One more comfort worth knowing. If you do reject goods properly, you are not obliged to carry them back to the seller. It is enough to tell him you refuse them and that they are available for collection. You are a buyer, not a delivery service.

Water again, because water sharpens the point better than shoes.

Suppose your tank runs dry and you order a tanker. The water arrives faintly brown. You are unimpressed, but the household needs water today, so you let the driver pump all twenty thousand litres into your underground tank, where it joins whatever was left before.

You have just made rejection almost impossible. Not because the law suddenly turned against you, but because you did something only an owner would do. You mixed the goods with your own, in your own tank, beyond separation. The seller cannot collect his water now even if he wanted to. Your remedy has quietly become a claim for money, and money is a poorer remedy than clean water when the household is thirsty.

The lesson is not that you should send the tanker away. Sometimes you must take the water. The lesson is that the moment before you point at the tank inlet is the moment your legal position is strongest, and it is the cheapest moment to say clearly that you are receiving this water under protest and that it is not what you paid for. A sentence spoken at the gate is worth more than a letter written a month later.

The same principle governs utilities buying chemicals, meters, and pipes. Use half a consignment of doubtful chlorine and the argument about rejecting the batch is finished. Test on delivery, record the result, speak immediately. Institutions lose these cases in exactly the same way households do, only with more zeros.

Behind all of this sits an outer clock. Contract claims in Kenya must generally be brought within six years under the Limitation of Actions Act. Long before that outer limit, though, your practical right to reject will have expired through nothing more dramatic than good manners and a full diary.

So the working rule of this instalment is short. Examine early. Complain immediately. Do not use what you intend to return. And understand that in the law of sale, silence is not neutral. Silence is a sentence, and eventually it says yes on your behalf.

Next in this series, we meet the seller who never owned what he sold. The bargain phone, the beautiful logbook with an ugly history, and the ancient rule that decides whether you keep the thing or merely keep the receipt.

 

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.

 

 

 

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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.