Q&A – 4 April 2016
Mass marketing emails
I keep on getting mass marketing e mails from suppliers of various products from cement and mobile phones, to caterers and hotels. I have never asked them to send these adverts and promotions and yet I receive them. Is sending such mass communication legal? If I buy goods or services from such online suppliers, how does one enter into a contract without signing it on hard paper?
The Electronic Transactions Act of 2015, which is an important but very new law specifically addresses this in that (1) a person shall not send unsolicited commercial communication on goods or service unless- (a) the consumer consents to the communication; (b) at the beginning of the communication, the communication discloses the identity of sender and its purpose; and (c) that communication gives an opt-out option to reject further communication. (2) The consent requirement is deemed to have been met where- (a) the contact of the addressee and other personal information were collected by the originator of the message in the course of a sale or negotiations for a sale; (b) the originator only sends promotional messages relating to its similar products and services to the addressee; (c) the originator offered the addressee the opportunity to opt-out and the addressee declined to opt-out; and (d) an opportunity to opt-out is provided by the originator to the addressee with every subsequent message. (3) An originator who contravenes this section commits an offence and shall, upon conviction, be liable to a fine of not less than ten million shillings or to imprisonment for a term not less than one year or to both.
You can see that such unsolicited messages are illegal especially if you had not consented and are unable to opt out from receiving them.
The same law recognises formation of contracts electronically and states that (1) for avoidance of doubt, a contract may be formed electronically unless otherwise agreed by the parties. (2) Where an electronic record is used in the formation of a contract, that contract shall not be denied validity or enforceability on the ground that an electronic record was used for that purpose.
New manager charged with old manager’s wrong
The former manager of our company had not complied with a certain law and has been summoned to appear before one of the authorities to show cause. I am the new manager having just started my job and the summons only reads the manager. However at the time of the issue, it was him he was in charge not me. Unfortunately he was an expat and has left the country. Who should attend this show cause summons?
What you would like to hear is that it is the manager who was here at the time of the offence who should appear. Unfortunately, unless the law under which the title manager is charged states so, the summons is made out on the title. It does indeed sound very unfair but section 66 of the Interpretation of Laws Act makes it very clear that any civil or criminal proceedings taken by or against any person by virtue of his office shall not be discontinued or abate by his death, resignation or absence or removal from office, but may be carried on by or against, as the case may be, the person for the time being holding that office.
Police interview time limit
I was taken in for police interview and spent the entire day there from 9am to 7pm, and then admitted to bail after having to plead with the officer that I did not want to be held in custody as it was a minor bailable offence which i was denying in any case. I was told that the police in charge who could allow bail was attending a function but I finally managed to get of him and get bail. My question is on how long can an officer interview me because by the end of the interview I was extremely tired and stressed. The officer kept on asking the same question over and over again, slowly writing on his notepad. Is there no time limit under the law?
The Criminal Procedure Act has provided under section 50 that (1) for the purpose of this Act, the period available for interviewing a person who is in restraint in respect of an offence is– (a) subject to paragraph (b), the basic period available for interviewing the person, that is to say, the period of four hours commencing at the time when he was taken under restraint in respect of the offence.
Paragraph (b) in principle excludes time when you are waiting for your lawyer, or the time when you are not being interviewed. However, the basic time frame for the interview is 4 hours, which however can be extended to another four hours as provided under section 51.
Section 51 states that (1) where a person is in lawful custody in respect of an offence during the basic period available for interviewing a person, but has not been charged with the offence, and it appears to the police officer in charge of investigating the offence, for reasonable cause, that it is necessary that the person be further interviewed, he may– (a) extend the interview for a period not exceeding eight hours and inform the person concerned accordingly; or (b) either before the expiration of the original period or that of the extended period, make application to a magistrate for a further extension of that period. (2) A police officer shall not frivolously or vexatiously extend the basic period available for interviewing a person, but any person in respect of whose interview the basic period is extended pursuant to paragraph (a) of subsection (1), may petition for damages or compensation against frivolous or vexatious extension of the basic period, the burden of proof of which shall lie upon him.