A High Court ruling in Siaya has confirmed that WhatsApp chats and SMS messages can amount to binding contracts, warning businesses and individuals that informal digital exchanges may carry legal force.
The decision arose from a small claims appeal between Fredrick Ochiel and Kennedy Okoth over the lease of an ultrasound machine. The court dismissed the appeal and upheld an award of Sh145,000 in favour of Mr Okoth, finding that text messages captured a valid agreement.
According to the record, Mr Okoth said the two orally agreed in September 2024 that Mr Ochiel would lease the machine at Sh1,000 per day for 145 days. Mr Ochiel collected it in Nairobi, used it, paid only Sh5,000 and failed to return it. He denied agreeing to any fee and argued there was no written contract.
In determining the dispute, the High Court framed the wider issue as, “Can WhatsApp chats and SMS amount to a binding business contract?” Justice David Kemei answered yes, provided the essential elements of a contract are present.
The judge stressed that agreements need not be written to be enforceable.
“Contracts can be inferred from the conduct of the parties and need not be in writing,” the court stated, adding that oral agreements may be proved through “emails, texts, written communication, and conduct”.
Messages produced in court showed discussions about daily charges, promises to pay by specific dates, explanations for delayed payment and requests to clear at least 60 percent of the balance. Mr Ochiel also acknowledged collecting the machine and paying Sh5,000, facts reflected in the exchanges.
From this, the court found a clear meeting of minds, concluding that “the terms of the oral agreement were captured in the SMS and WhatsApp messages and bound the parties”.
Mr Ochiel had challenged the admissibility of the messages for lack of a certificate under Section 106B of the Evidence Act. The court rejected this, noting that he withdrew his objection and failed to oppose their production. As a result, “the appellant was deemed to have agreed with the contents of those communications”.
The court also dismissed arguments on jurisdiction and complaints that the charges exceeded the value of a new machine. The appeal was dismissed with costs, with the judge finding that Mr Ochiel acted in bad faith.
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