(NAIROBI, KENYA) – Kenya’s High Court has dismissed a lawsuit filed by the Consumer Federation of Kenya (Cofek) seeking refunds from Stanbic Bank for revellers who attended a music festival organised by the lender in Nairobi on 10th June 2023.
The consumer lobby group had claimed that hundreds of fans who paid up to KES 30,000 ($232 / GBP 183) for tickets complained that the event fell short of its promise. The court, however, found that Cofek failed to prove its claims.
“The petitioner did not make meaningful effort to substantiate the allegations with cogent, credible and admissible evidence on a balance of probabilities,” said Justice Lawrence Mugambi.
Stanbic used the festival as a brand and entertainment initiative, intended to bring its brand promise, “IT CAN BE,” to life through music. The bank also said the festival supported Kenyan arts, music and the entertainment industry.
The petition arose from complaints about the Boyz II Men headlined festival at Uhuru Gardens in Nairobi, including alleged chaotic seating, poor sound and visual quality, obstructed views, congestion, inadequate sanitation and security concerns and loss of personal property.
Cofek said the event substantially departed from what had been advertised and that the shortcomings violated consumers’ rights under Article 46 of the Constitution. It asked the court to declare that consumers’ rights had been violated and order compensation over the alleged shortcomings at the festival. But the court said the federation did not prove those allegations on the required standard.
“I find that although the petitioner came out very strongly and forcibly on the allegations contained in the pleadings, it did not substantiate them with credible and admissible evidence,” the judge said.
The court singled out witness statements filed with the petition, saying they were not affidavits and had not been properly introduced as evidence. It said those statements did not provide details of payments or ticket numbers and were not properly linked to the supporting affidavit.
“Despite being aware that there were witnesses who had recorded statements, the petitioner did not seek to introduce that evidence in support of this petition,” the court said.
Cofek also relied on emails complaining about the event, but the court found that the electronic material lacked the certificate required under Section 106B of the Evidence Act. The court said the certificate was a mandatory safeguard for electronic evidence because of the risk of tampering.
“As such, the electronic evidence relied on in this petition does not meet the legal threshold of admissibility,” he said.
The court also noted that Cofek cited online videos showing poor sound and faulty screens, but did not produce the videos for examination.
Stanbic’s published festival FAQ said regular tickets cost KES 8,000 ($62 / GBP 49), VIP tickets KES 15,000 ($116 / GBP 92) and VVIP access KES 30,000 ($232 / GBP 183), while stating that every ticket category would have a seating arrangement.
Complaints emerged from attendees about overcrowding, poor sound, malfunctioning screens, sound quality and the general arena layout.
The respondents denied the allegations and told the court that extensive preparations had been made for the festival. Their evidence showed that organisers had arranged 70 washrooms, tents for 6,926 people, seating for 6,270, bar facilities for 8,100 and food vendors capable of serving 11,100 people.
The court heard that reserved seats were only for the county governor and guests, while other seats were available on a first served basis.
Cofek challenged that account and pointed to the organisers’ admission that the expected capacity was 6,926 people, while another affidavit said the audio equipment was contracted to serve an estimated 5,000 people.
The court also rejected the respondents’ earlier arguments that Cofek lacked standing or that the dispute had to be handled through contractual mechanisms. It held that consumer rights under the Constitution’s Article 46 are protected by the Constitution and go beyond private contractual arrangements.
“The inquiry is thus independent of and transcends the contractual arrangement,” he said.
The court also considered a public apology issued after complaints about the festival. Justice Mugambi said the apology expressed general regret but did not amount to an admission of the specific allegations or legal wrongdoing.
“My reading of the apology is that it was an expression of general regret for the inconveniences experienced,” he said.
The court concluded that the pleadings set out concertgoers’ grievances, but the evidence did not establish them.
“The petitioner’s case was well pleaded, but it must fail for the failure to discharge the burden of proof,” said the judge, dismissing the petition.