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

Before You Sign: What Every Property Sale Agreement Should Cover

 

Many property disputes in our courts start with a sale agreement that was rushed, copied from the internet or never written down. A well-drafted agreement is the cheapest insurance a buyer or seller can buy.

The legal minimum. Under section 3(3) of the Law of Contract Act, a contract for the sale or other disposition of an interest in land must be in writing. It must be signed by all parties, and each signature must be attested by a witness who was present. An oral land deal, however sincere, is generally unenforceable.

Clauses that matter most.

• The parties and the property: full names, ID or registration numbers, and an exact description of the property as it appears on the title.
• Price and payment: the deposit, how the balance will be paid, and who holds money pending completion, often the advocates as stakeholders.
• Completion: the completion date, and what each party must deliver, such as the original title, signed transfer, consents, clearance certificates and keys.
• Conditions: any consents needed, such as Land Control Board consent for agricultural land or spousal consent for matrimonial property, and what happens if they are not obtained.
• Encumbrances: whether the property is charged to a bank, and how the charge will be discharged, usually through professional undertakings between advocates.
• Default: remedies if either side fails to complete, including completion notices, forfeiture of part of the deposit, refund terms and interest.
• Costs and taxes: who pays legal fees, stamp duty, valuation and registration fees.

The Law Society Conditions of Sale. Many agreements incorporate the Law Society of Kenya Conditions of Sale. These fill in gaps the parties did not expressly cover, but the specific terms should still be spelt out.

Involving all stakeholders. Where several people have an interest, such as co-owners, spouses or financiers, sharing drafts early avoids last-minute objections that derail completion.

Takeaways. Do not pay a deposit before the agreement is signed and searches are done. Never hand over money directly to a seller you have not verified. Have an advocate draft or review the agreement, because a few hours of careful drafting can save years of litigation.

Sued for Trying to Help: Getting a Wrongly Named Party Out of a Claim

A shop owner introduces a customer to a supplier, or offers to help two people resolve a disagreement over a purchase. The deal then goes wrong, and the disappointed buyer sues everyone they can think of, including the person who simply tried to help. Being named in a suit you have nothing to do with is stressful, but the law provides a way out.

Who can properly be sued. A claim must disclose a cause of action against each defendant or respondent. There must be facts which, if proved, would make that person legally liable. In a sale gone wrong, liability ordinarily lies with the party who sold the goods, received the money or made the promise. It does not lie with someone who merely introduced the parties or offered to mediate afterwards.

The mediator's position. Offering to help resolve a dispute does not make a person a party to the original transaction, nor a guarantor of its outcome. Treating peacemakers as defendants would discourage the informal dispute resolution the courts encourage.

How a wrongly named party responds.

• File a response on time. Even if the claim is baseless, failing to respond risks judgment by default.

• Apply to be struck out. Where the claim discloses no cause of action against them, the party can ask the court to strike out their name early, saving time and costs.

• Present the documents. Payment records showing who received the money, messages showing who made the deal, and evidence of the limited role the respondent played.

• Ask for costs. A party dragged into litigation without basis may seek costs against the claimant.

In the Small Claims Court. The Small Claims Court Act aims for quick, fair decisions, and the court can deal with the issue of a wrongly joined respondent early. Raising it at the first opportunity is important.

Takeaways. If you broker introductions or help resolve customer disputes, keep a record of your role and avoid handling money on behalf of either side. If you are sued anyway, do not ignore the papers. A prompt, focused response usually ends your involvement quickly.

"The Title Is in My Brother's Name, but the Property Is Ours": Family Property and Trusts

 

In many families, property is bought or developed together but registered in the name of one person. That might be the eldest sibling, the one who happened to be present at the land office, or the one trusted to hold it for everyone. Years later, relationships change, and the registered owner claims the property as solely theirs.

Registration is strong, but not everything. A registered proprietor's title is generally conclusive. But the Land Registration Act recognises that a title can be subject to trusts. Section 28 lists trusts, including customary trusts, among the overriding interests that bind registered land even if they are not noted on the register.

Kinds of trust the courts recognise.

• Resulting trust: where one person paid, wholly or partly, for property registered in another's name, the law may presume the registered owner holds it for the person who paid.
• Constructive trust: where it would be unconscionable for the registered owner to deny another's interest, for example after promising a share that the other relied on.
• Customary trust: particularly for ancestral or family land held by one member on behalf of the family.

Proving the claim. The burden lies on the person asserting the trust, and the evidence decides most cases. Useful proof includes payment records, family agreements and correspondence, evidence of who built, occupied and developed the property, and testimony from relatives or others who know the history.

The right court. Disputes over land are heard by the Environment and Land Court. Magistrates' courts also hear such disputes within their pecuniary limits, which keeps many family land cases closer to home and less costly.

Takeaways. If family members contribute to buying or developing property, record each person's share in a written agreement, or register the property jointly. If you already find yourself in this situation, collect every record of your contribution now and take advice before the property is sold or charged to a bank.

One Plot, Two Owners: Double Allocation by Local Authorities

 Across Kenya's growing towns, many people hold plots first allocated by the old municipal and town councils. When those councils were replaced by county governments, records were not always transferred cleanly. A common result is double allocation: the same plot allocated to two people, sometimes decades apart, each holding papers that look genuine.

Allotment letter vs title. An allotment letter is an offer to allocate land, usually subject to conditions such as paying stand premium and rates within a set time. Accepting the offer and meeting the conditions creates an interest that the courts will protect. A title, once issued, is generally conclusive proof of ownership. But section 26 of the Land Registration Act allows a title to be challenged where it was obtained by fraud or misrepresentation, or acquired illegally, unprocedurally or through a corrupt scheme.

How courts resolve competing claims. The Environment and Land Court, which has jurisdiction under Article 162(2)(b) of the Constitution, examines the root of each party's title. Key questions include:

• Who was allocated first, and did they meet the conditions of allotment?
• Was the plot available for allocation when the second allotment was made?
• Do the council minutes, receipts, survey plans and registry records support each claim?
• Did the later allottee know, or ought they to have known, of the earlier interest?

The county government's role. As successor to the former council, the county holds the records and is often a necessary party. Its officers' evidence on how the plot was handled can be decisive.

Patience and preparation. These cases are document-heavy and can take years, especially where the original records are incomplete. Success depends on assembling the full paper trail and witnesses who can explain it.

Takeaways. If you hold an allotment letter, pay all charges promptly, keep every receipt and follow through to a title. Before buying a plot, search county records and the land registry, and visit the site. If someone else claims your plot, seek advice early, before structures go up and positions harden.

You Owe the Money but Need Time: Settling a Debt Claim on Workable Terms

 

Not every defendant in a debt claim disputes the debt. Often a business owner accepts that money is owed but simply cannot pay it all at once. Burying the claim in a weak defence wastes money and goodwill. A negotiated, documented settlement is usually the smarter path.

Why engage rather than ignore. A defendant who ignores the demand or the suit risks a default judgment. That can bring interest, costs and execution against business assets or bank accounts with little warning. Engaging early, through an advocate, keeps control of the timetable in the debtor's hands.

What a good settlement covers.

• the agreed amount, including any reduction of interest or costs;
• a realistic instalment schedule matched to the business's cash flow;
• what happens if an instalment is missed, such as a default clause allowing judgment for the balance;
• whether the claimant will withdraw the suit, or record a consent judgment payable by instalments; and
• an undertaking that no execution will issue while payments are honoured.

Using the court's process. Settlements are often recorded in court as consent orders, which gives both sides certainty. Even after judgment, Order 21 Rule 12 of the Civil Procedure Rules allows the court, for sufficient reason, to order payment of a decree by instalments. That can provide breathing room where negotiation has failed.

Dealing with the other side's advocates. Settlement talks between advocates should be candid and without prejudice. Proposals should be backed by something credible, such as a first payment or evidence of expected income.

How we assist. We review the claim for any genuine dispute over the amount, then propose terms the client can actually meet. We record the settlement so the client is protected from sudden execution.

Takeaways. If you owe money, respond to demands promptly and propose a realistic plan. Only commit to instalments you can pay, since a missed payment often brings the whole balance due at once.