Your Contractor Took the Money and Walked Away: What Now?

 Small business owners regularly pay contractors to fit out a shop, salon, restaurant or office, only for the work to stall half-done. The deposit is spent, opening day keeps slipping, and the contractor stops answering calls. The law offers practical remedies, and the earlier they are used, the better.

The legal basis. A fit-out arrangement is a contract, whether written, sent by WhatsApp or agreed orally and backed by payments. A contractor who takes payment and fails to complete the agreed works within a reasonable time, or to the agreed standard, is in breach. The client may claim a refund of money paid for undone work, the extra cost of hiring someone else to finish, and losses that flow naturally from the delay.

Building your evidence. The strongest claims are built on records:

• the quotation, agreement or messages setting out the scope and price;
• receipts, bank transfers and M-Pesa statements showing payments;
• dated photographs and videos of the site at each stage;
• an independent assessment of the work done and the cost to complete; and
• messages in which the contractor promised to return or admitted delay.

The demand letter. A formal demand from an advocate sets out the breach and the sum due, and gives a deadline to pay or complete. Many disputes end here, because contractors realise the client is serious. The demand also matters later, since courts look at whether the defendant was given a fair chance before suit.

If the demand is ignored. Claims of up to KES 1 million can go to the Small Claims Court, which must decide within sixty days. Larger claims go to the Magistrates' Court. The court can award a refund, damages, interest and costs.

Takeaways. Before work starts, insist on a written scope, a timeline and payment in stages tied to progress. Never pay most of the price upfront. If work stalls, document everything immediately and seek advice early. A demand letter costs far less than months of a closed business.

"We've Refunded You, So Why Pay Costs?" Why Late Payment Doesn't Erase Legal Costs

 A familiar pattern: a consumer pays for a product or service, the supplier fails to deliver, a demand letter is ignored, and suit is filed. Only then does the supplier offer a refund, but it refuses to pay the costs the customer incurred to get there.

The general rule. Section 27 of the Civil Procedure Act gives courts discretion over costs. The settled principle is that costs follow the event: the successful party is ordinarily entitled to them unless there is good reason to order otherwise. A defendant who pays only after being sued has, in substance, conceded the claim.

Why costs matter. Without costs, a wronged customer ends up out of pocket for legal fees, filing fees and the time spent chasing a refund that was owed from the start. Courts recognise that a party should not be penalised for enforcing a right the other side ignored. Where a valid demand was ignored and suit became necessary, a later refund does not by itself justify denying costs.

How we handle a late refund.

• Accept the principal refund without prejudice to the claim for costs and interest.
• Show the timeline: the payment, the failed delivery, the demand letter, the silence, the suit, and only then the refund.
• Ask the court to enter judgment for costs, and interest where appropriate, or to record a settlement that includes them.
• Resist attempts to treat the refund as full and final settlement unless costs are agreed.

Lessons for consumers. Keep receipts, contracts and every message with the supplier. Send a clear written demand before suing, since it is strong evidence when costs are argued. Do not sign a "full and final settlement" note that is silent on costs.

Lessons for businesses. If a refund is owed, pay it when the demand letter arrives. Waiting for a lawsuit nearly always costs more than the refund itself.

Criminal Revision: Not a Second Appeal, and the Complainant Still Has a Voice

An accused person sometimes asks the High Court to "revise" a magistrate's decision before the trial has ended. For the complainant, often the person who reported the crime, this can feel like the case is being derailed. Understanding what revision is, and is not, helps victims protect their interests.

What revision is. Article 165(6) and (7) of the Constitution gives the High Court supervisory jurisdiction over subordinate courts. Sections 362 to 364 of the Criminal Procedure Code allow the High Court to call for a lower court's record. It checks whether any finding, sentence or order is correct, legal and proper, and whether the proceedings were regular.

What revision is not. Revision is not an appeal by another name. It is meant to correct clear errors of law, illegality or impropriety. It is not a vehicle to re-argue evidence, delay a trial, or obtain a ruling that should await the end of the case. Courts have repeatedly declined revision applications that are, in substance, appeals against interlocutory rulings.

The complainant's place. The prosecution is conducted by the State, but complainants are not spectators. Article 50(9) of the Constitution and the Victim Protection Act, 2014 recognise victims' rights to be informed and to have their views and concerns heard where their personal interests are affected. Through an advocate, a complainant may seek to be heard and place relevant material before the court.

How we approach opposing a revision.

• Show that the order complained of is lawful and within the trial court's discretion.

• Point out where the application is really an appeal in disguise, or an attempt to stall the trial.

• Highlight any related civil or succession proceedings the applicant may be using the criminal process to influence.

• Ask the court to return the file promptly so the trial continues.

Takeaways. If you are a complainant and the accused files a revision, do not assume the matter is out of your hands. Engage an advocate to watch brief and, where appropriate, be heard. Timely participation can prevent unnecessary delay and keep the trial on course.

When Family Members Disagree: Who Can Collect Rent from an Inherited Property?

 When a parent dies leaving a rented building, the rent keeps coming in. Who has the right to collect it is often contested. A common flashpoint is one family member acting alone, for example by instructing auctioneers to levy distress against a tenant.

The estate comes first. Under the Law of Succession Act, a deceased person's property is managed by the personal representatives appointed by the court. Until there is a grant, nobody is entitled to deal with estate property on their own account. A person who takes, collects or disposes of estate assets without authority may be intermeddling, which section 45 of the Act makes an offence.

Co-landlords must act together. Where several people jointly hold the landlord's interest, the general rule is that they act jointly. One co-owner cannot, without the others' authority, terminate the tenancy, change the rent or seize a tenant's goods for arrears. Distress for rent under the Distress for Rent Act is a powerful remedy. It must be levied by the person entitled to the rent, through a licensed auctioneer and in strict compliance with the law.

The tenant's position. A tenant caught between feuding landlords risks paying twice. Business tenants in controlled tenancies can seek protection from the Business Premises Rent Tribunal, which can restrain an unlawful distress and give directions on who should receive rent.

How we approach these disputes.

• Establish who holds the grant and the authority to act for the estate.
• Challenge any unilateral distress before the Tribunal and seek preservation of the rent.
• Push for a transparent arrangement, such as an estate account, so rent is not lost to infighting.
• Coordinate the tenancy dispute with the succession proceedings so the two forums do not issue conflicting orders.

Takeaways. If you inherit rental property with siblings, obtain a grant early and agree in writing how rent will be collected and accounted for. If you are a tenant, ask for proof of authority before paying anyone new. Rent collected outside the estate's control is a frequent cause of years of litigation.

Sued in the Small Claims Court? A Business Owner's Guide to Responding

 

The Small Claims Court is fast, and that speed cuts both ways. A business served with a claim has little time to respond, and a weak response can mean judgment within weeks.

What the court is. The Small Claims Court was set up under the Small Claims Court Act, 2016. It hears civil claims of up to KES 1 million, including disputes over contracts for goods and services, money owed, and compensation for personal injury or damage to property. Its procedure is simple, and it is required to decide matters within sixty days of filing.

Why respondents get caught out. Many businesses assume a small claim is not worth serious attention. Because hearings are quick, there is rarely a second chance to fix a poor response. Documents not filed early may never be considered.

How we approach a defence.

• Check jurisdiction first. Is the claim within the monetary limit? Is it the type of dispute the court can hear? Was the right party sued? A claim filed in the wrong forum, or against the wrong entity, can be disposed of early.
• File a clear response on time. The response should answer each allegation and set out the business's version briefly, backed by documents.
• Gather the paper trail. Invoices, delivery notes, hire agreements, M-Pesa and bank records, emails and WhatsApp messages often decide these cases.
• Consider a counterclaim. If the claimant owes the business money, it may be raised in the same proceedings.
• Keep settlement open. The Act encourages amicable resolution, and a fair settlement can save time and reputation.

Takeaways for businesses. Treat every small claim as a real lawsuit. Keep your contracts and records organised, because in a sixty-day process the side with better documents usually wins. Get advice as soon as you are served, not on the eve of the hearing. Although parties may appear in person, an advocate can quickly spot jurisdictional and procedural points that end a weak claim early.

Tired of Marketing SMS You Never Asked For? Your Rights Under the Data Protection Act

 

Most Kenyans know the experience: you visit a shop, an event or an entertainment venue, hand over your phone number, and the promotional messages never stop. The Data Protection Act, 2019 gives you real tools to stop them, but using them in the right order matters.

Your rights. Section 26 of the Act sets out a data subject's rights. These include the right to be informed of how data is used, the right to object to processing, and the right to have false or misleading data corrected or deleted. Section 37 restricts the use of personal data for commercial purposes, including direct marketing, without the person's consent or a lawful basis. Section 40 provides for the rectification and erasure of personal data.

Start with the business itself. The Office of the Data Protection Commissioner expects a data subject to first exercise their rights directly with the data controller, the business sending the messages. In practice, that means a written request, kept on record, to:

• stop all marketing messages and withdraw any consent previously given;
• erase your personal data where there is no lawful basis to keep it; and
• disclose where your number was obtained and who it has been shared with.

Then the regulator. If the business ignores the request or keeps sending messages, a complaint to the Data Protection Commissioner is far stronger. You can show that you asked, that the business failed to comply, and the dates of messages sent after your request. A complaint lodged before this step may be declined or referred back.

Remedies. The Commissioner can investigate, issue enforcement notices and penalty notices, and order compensation to a person who has suffered damage from a breach of the Act.

How we assist. We prepare formal requests that leave the business no room for doubt, track the response period, and assemble the evidence for a complaint. We then pursue the matter before the Commissioner if needed.

Takeaways. Save screenshots of every unwanted message, with dates. Make your objection and erasure request in writing before complaining. Businesses should check that their marketing lists rest on genuine consent and offer an easy opt-out, since compliance is far cheaper than a penalty.

When the Landlord Cuts Off Water and Power: Rights of Business Tenants

 Some landlords who want a tenant out, or want higher rent, take a shortcut: they disconnect the water, switch off the electricity or block access. For a business, and especially an institution such as a school or clinic that serves the public, even a few days without utilities can be devastating. The law does not allow landlords to evict by pressure.

Controlled tenancies. The Landlord and Tenant (Shops, Hotels and Catering Establishments) Act protects tenants in "controlled tenancies". Broadly, these are business tenancies that are unwritten, or written for five years or less, or that allow termination within five years. A landlord who wants to end or change the terms of such a tenancy must serve a notice in the prescribed form. If the tenant objects, the Business Premises Rent Tribunal decides.

Self-help is unlawful. Cutting off utilities, changing locks or removing a tenant's property to force them out sidesteps that process. The Tribunal has power to investigate complaints and to make orders protecting tenants, including orders restoring services and restraining interference with quiet possession. Courts have consistently condemned such tactics.

Knowing who your landlord is. Many commercial buildings are owned or managed through companies, joint ventures or agents, and tenants sometimes do not know who actually holds the landlord's interest. The tenant may ask the Tribunal to direct disclosure, so that orders bind the right parties and rent is paid to the right person.

How we act for tenants.

• File a complaint with the Tribunal under certificate of urgency.
• Seek immediate orders to reconnect services and stop further interference.
• Seek disclosure of the true landlord and its authority.
• Protect the tenant's rent position, for example by depositing rent as the Tribunal directs, so the landlord cannot claim arrears as a pretext.

Takeaways. Keep your rent paid and your receipts safe. Document any disconnection immediately with photos, dates and messages. Do not retaliate by withholding rent without advice, and approach the Tribunal quickly, because urgent orders are available