The unfortunate story of Jamaa
Jamaa is a hustler. He lives in Githurai 45. It’s hard to live in the city, especially when you don’t have a well-paying job, or a business that brings in a considerable amount of income. Jamaa also has a young family: together with his wife Msupa, they have two daughters ages 3 and 5 and they are expecting their third child. Jamaa has many side hustles. One of them is that he acts as a middle man for anyone who has anything to sell or buy. He acts as an agent/broker. Depending on who engaged him, Jamaa makes a commission from the sale/purchase.
Bad luck often comes uninvited. It is like a gate crusher. On a Friday morning, the police knocked on Jamaa’s door and picked him up for an undisclosed crime. Jamaa is used to these arrests because of the nature of this particular hustle: being a broker for the sale/purchase of anything. Sometimes he is charged with possession of stolen goods, other times he is charged with fraud. The charges rarely stick because the police often realize that they have the wrong guy: a hustler who simply earns a commission from what others sell/buy. However, the police have never picked him up at night. This is why Jamaa is freaked out. He spent the night in the small, dingy, crowded cell which had a bucket for a toilet.
This morning, Jamaa was interrogated by an officer and later charged with obtaining by false pretenses. Recently, Jamaa sold a 32” LCD Samsung TV to Haile. He sold it at 25,000kes. It was used, and quite old. The owner, Mrembo, needed some quick cash to pay off some people she owed money. What Mrembo did not disclose is that sometimes, the TV blacks out and does not show any picture except the sound. Other times, the TV on its own goes mute yet the picture is showing. Haile does not think he got value for his money. He says that the purchase was a rip off. Mrembo previously promised to return the money but has constantly broken her promise. When Haile calls her phone, she doesn’t pick. Yesterday, her phone was unavailable, the whole day. Haile suspects Mrembo has blocked his calls and does not want to refund his hard earned money.
So, Haile went to the police yesterday, and reported Mrembo and Jamaa. They sold to him a fake TV. It does not show the picture sometimes, and other times, it acts like a dead mute. The police picked up Jamaa, they cannot find Mrembo. It is on the above basis that Jamaa is charged with obtaining by false pretenses. According to the investigating officer, Jamaa earned a commission on a sale of a TV, which TV wasn’t fit for the purpose for which it was bought. As such, Jamaa got (obtained) a commission on a false sale of a TV (by false pretenses)
What does the law say?
Section 313 of the Penal Code provides that:
“Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.”
From the above section, the essential elements of the offence of obtaining by false pretenses are:
- Obtaining something capable of being stolen
- Obtaining the money through a false pretence
- Obtaining the money with intention to defraud
Section 312 of the Penal Code also defines “false pretense” as
“Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making \ it knows to be false or does not believe to be true, is a false pretence.”
In the above definition, the word “representation” is of great importance. It is a representation by words, writing or conduct, a representation in either past or present, a representation that is false, a representation made knowing it to be false or believed not to be true.
Clearly, from what the law says, the offence of obtaining by false pretenses does not relate to events in the future. In the case of Oware V. Republic (1984) KLR 2001, Court decided:
“A representation as to a future event cannot support a charge of obtaining money by false pretenses. In the above mentioned the case of R. V. Dent (1955) 2. Q.B. PP 594/5 was referred to and in which case Devlin, J.:-
“a long course of authorities in criminal cases has laid down that a statement of intention about future conduct, whether or not it be a statement of existing fact, is not such a statement as will amount to a false pretence in criminal law.””
Relevance of the law:
It now must be ascertained whether Jamaa knew this TV to be unfit for the purpose for which it was bought. Did Jamaa falsify any information pertaining to the “health” of the TV?
That will be for the court to decide. We can however make an opinion on the same.
If Jamaa knew about the health of the TV, and made a false representation to Haile that it was of excellent quality, then he is liable for obtaining by false pretenses. However, Mrembo should be enjoined as an accused so that Haile can recover his money or the value for his money.
What about civil remedies?
The truth is that this claim arises out of a commercial transaction. Haile still has remedies in a civil court against Mrembo for selling to him goods which are not fit for the purpose they were bought. Any civil remedy to Haile may be enforced under the Sale of Goods Act, Cap 31 and the Consumer Protection Act 2012
Section 16 (a) – (b) of the Sale of Goods Act provides that
No implied warranty as to fitness, except in certain cases
Subject to the provisions of this Act and of any Act in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows—
- where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for that purpose:
Provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose;
- where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality:
Provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which that examination ought to have revealed;
Sections 12, 13, and 15 of the Consumer Protection Act 2012 also have a basis for Haile’s possible civil claim
Suffice to note, such claims are tortious and the aggrieved person can seek remedies either in a civil or a criminal court.
The hustle in every city should be real. Knowledge of the laws that affect your hustle will keep you safe and away from the pain that may come from non-compliance and ignorance of the law.
Keep it real!
BY SAMALI BITALA
This article appears in our digital law newsletter, The Deuteronomy Vol 5, Issue 4 of May 26th, 2017
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