Ask your Legal Questions

Deleted user

posted 2 years ago

Hello, I have a situation here. I am a legally licensed tour operator in Germany and I have booked a tour for my clients in Kenya with a person who claimed that he has a company. It turned out the company is fake and now he wants to take my money without completing what we agreed. I know who he is and I have met with him personally. He is a registered tour guide in Kenya but lied about his company and took money from me to his private account. I have all the invoices and payout bank slips. May I know whether it is possible to sue him or report him to the Tourism Regulatory Authority in Kenya? Thank you.

Country

Kenya

Fields:

Commercial and Business Law

Answer this Post

Contribute Now

Deleted user

Lawyer

posted 2 years ago

Hello, in Kenya, the tour company's actions are a criminal offense known as containing money under false pretenses. The process for reporting and getting the money back is to report to a police station and obtain police report number (known as Occurrence Book Number) this can then be used to pursue criminal charges in court whose outcome can be a full refund or a prison term with a fine. If a refund is not possible at the time of the conclusion of the criminal case, then the guilty verdict of the criminal court can be used in a civil case for a claim of refund for breach of contract or a claim for specific performance (ie to provide all services as agreed) and damages for lost time, fees, etc. It is also possible to get a refund by giving him a formal demand for a refund through a legal representative who will follow up until the refund is obtained. Reporting to the tourism authority is not possible at this time because the ministry guidelines are not yet in place and therefore cannot be used as a means of recourse. In any case, I'm happy and available to help. Please feel free to reach me by email at [email protected], to discuss this further. Kind regards, Saada.

Deleted user

Lawyer

posted 2 years ago

Yes, it is possible to sue him and raise a complaint with the Tourism Regulatory Authority. Additionally, the operator's conduct amounts to a criminal offence under the Kenyan Penal Code thus you should lodge an official complaint with the police.

Deleted user

Lawyer

posted 2 years ago

Hello, thank you very much for your question. I wish to render my considered legal opinion over this matter as follows: The fake company was used to obtain money by false pretense which is a criminal offence under Section 313 of the Kenyan Penal Code. The tour guide committed fraud and should be criminally liable to imprisonment for three (3) years and more but should be found guilty beyond a reasonable doubt; or Sue him for special damages under Kenyan Contract law for breach of contract. Your evidence of the invoices and payout bank slips should suffice which can be proved on a balance of probabilities. Lastly, the Tourism Regulatory Authority does not have jurisdiction over criminal and civil suits. Only a court of law can grant damages. If you have any further questions please feel free to contact me via my email: [email protected]. Thank you again.

Deleted user

Lawyer

posted 2 years ago

Hello, I hope this finds you well. The ideal approach to this situation is to sue for orders of rescission and damages for false misrepresentation or obtaining money by false pretence.

Deleted user

posted 2 years ago

Basically this falls under both fraud, misrepresentation and breach of contract. Should you choose to sue under the criminal dispensation, you may not recover your lost funds. I suggest that you sue as breach of contract. If the amount involved is less than one million shillings, you can file a suit in the small claims court which will take 60 days. Should you have further questions as to how to approach this please reach out to us.

Deleted user

Lawyer

posted 2 years ago

The option would be to institute legal proceedings against them. Kindly reach out law firm via email ([email protected] or WhatsApp( +254713741741) for detailed advice. We can help you in recovery of the money. Thanks.

Deleted user

Lawyer

posted 2 years ago

Hello The first step I would advise is to lodge an official complaint to Kenya police . If the facts indicated is the true position then this is a clear case of obtaining money by false pretences. Second step is to file a civil case to claim back the money as well as damages. Third ,if he is registered by TRA assuming his registration documents are legitimate then you can proceed to lodge complaints against him or her.

Deleted user

Lawyer

posted 2 years ago

Hello. Yes, you can file a complaint with the Tourism Regulatory Authority. However, you cannot recover the money you paid or any other monetary compensation by doing so. The Tourism Regulatory Authority will only take disciplinary measures against him and make him pay a fine or have him charged criminally in court. If you want to recover the money and even sue for additional damages, you will have to file a suit in a civil court in Kenya. Depending on how much money it is, you can file a suit either at Small Claims Court (for claims not above Ksh. 1,000,000), or chief magistrates court (for claims not above Ksh. 20,000,000) or the High Court (for claims above Ksh. 20,000,000).

Deleted user

Lawyer

posted 2 years ago

There are two ways you could go about it. If you had a contract with him, you can sue for breach of contract if he has violated certain clauses of the contract. Secondly you could report to the Police for Obtaining money under false pretences, Where he will be charged in a court of law. In Kenya both the Civil and criminal cases against him could proceed concurrently.

Deleted user

posted 2 years ago

Hello, My name is Damaris and I am a qualified advocate of the high court of Kenya. I am sorry about the terrible experience with the said tour operator. There are many genuine tour operators in Kenya and it is important to work with the ones who are fully registered as companies/corporations and have a good history of tour operations. I will offer you a general perspective based on the law in Kenya. You can recover your money through a civil suit for non-performance of contractual obligations. Concurrently, you can also initiate criminal proceedings so that he is charged by the republic and sentenced to prison. The Tourism Regulatory Authority in Kenya will readily receive and process your complaint and might help you to recover although you need a lawyer present and practicing in Kenya to file the case in court. It is important that you report him so he does not keep swindling other innocent people.

Deleted user

Lawyer

posted 2 years ago

Yes, you can sue the individual and also report him to the authorities. It may be good to know how much money you have already given him so that I can advise on which court you can sue him. If you had a written agreement, we will also need that in order get the best approach for you to recover your money. As a lawyer in Kenya, we can help you navigate through this. At this point our advise to you is to disengage and not give any more money.

Deleted user

Lawyer

posted 2 years ago

Hello yes it is possible to sue on the basis of fraud. If you had a contract you can also sue on the basis of breach of contract.

Deleted user

Lawyer

posted 2 years ago

Hi, Reference is made to your question. A few things I need to know,did you have a contract or what was the nature of the terms? Do you have texts and bank transactions confirming you paid him? This is a case that can be criminal (obtaining money by false pretences) and civil (for recovery of money). Kindly contact me on [email protected] for more consulting.