The High Court of Kenya at Siaya recently made a determination that is hailed as a milestone step towards embracing the digital contracts as a country. In the said Appeal cited as Ochiel v Okoth [2026] KEHC 106 (KLR), the Appellant one Fredrick Ochiel, sought to overturn the Small Claims decision claiming that the WhatsApp messages which was presented before the trial court did not amount to a contract within the definition of a contract under the Laws of Contract. It was his argument that he did not execute any written contract with the Respondent, one Kennedy Okoth and therefore he had no legal liability.
Traditionally, under the Laws of
governing contracts, contracts have been constrained to only two forms; Written
and Oral contracts. The requirements for a legally enforceable written contract
have been well articulated in our Kenya Law of Contract Act and for a written
contract to be duly enforceable, the stringent rules have to be adhered to.
On the other hand, under the common law
of contract, Oral contracts are often described as verbal, and they provide a
flexible requirement for its enforceability. The most important requirement in
an oral contract is that there should be a clear indication of an offer being
made by one party which is then accepted by the other party at a consideration
of value which may be in form of money being exchanged. While it is hard to
prove an oral contract as it is made verbally, it is not impossible. Evidence
of witness testimony, emails, and SMS/WhatsApp messages are acceptable to
prove the existence and terms of the contract.
Fredrick Ochiel had admitted in his
witness statement that he had collected the ultrasound machine from Kennedy
Okoth and later paid him Kshs. 5,000/= as consideration. This ultimately
convinced the court that indeed an oral contract existed between the two
parties regardless of the terms of contract. The Honourable Judge D.K Kemei
upheld the small claims Court award of Kshs. 145,000/= to the Respondent while
stating that;
‘It
transpired from the evidence that the Appellant had received the Respondent’s
ultrasound machine, used it and failed to return it thereby leading the
Respondent to suffer loss and that the Appellant took the Respondent for a ride
as he used the Respondent’s ultrasound machine without making any payments and
then failed to return it forcing the Respondent to file suit’.
The Honourable Judge D.K Kemei further
added that it is not upon the court to re-write the terms of a contract in
terms of favourability to one party unless coercion, fraud or undue influence
are pleaded or proved by a party to the contract.
Therefore, in the wake of intensive
digitalization, the strict enforcement of traditional forms of contracts is
unconscionable. In fact, in view of catching up with digitalization, the Law
should question at this point whether there is/should be a separate, legal and
enforceable form of contract known as a digital contract? This perplexity
arises from the fact that digital contracts, such as agreements on SMS/WhatsApp
are neither verbal nor are they written with strict adherence to the rules of
written contract.
Prepared
By:
PATRICKS LAW ASSOCIATES
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Written
by Bridget Inyanje & Maurine Korir
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