A casual WhatsApp chat can bind a business deal. So, can an SMS. That is the clear warning from the High Court, which has ruled that digital text messages can create enforceable contracts when core legal elements are proven.
The decision was delivered by the High Court in Siaya in a small claims appeal between Fredrick Ochiel and Kennedy Okoth, two business acquaintances whose informal deal over an ultrasound machine spiralled into litigation.
The court dismissed the appeal and upheld a lower court award of Sh145,000, finding that messages exchanged on phones captured a valid agreement.
At the heart of the dispute was a simple arrangement. Mr Okoth said he orally agreed in September 2024 to lease his ultrasound machine to Mr Ochiel at Sh1,000 per day for 145 days. Mr Ochiel collected the machine in Nairobi, used it, paid only Sh5,000, and failed to return it. He denied any agreed fee and argued there was no written contract.
The trial court sided with Mr Okoth. On appeal, the High Court was asked to answer a broader question with growing relevance in Kenya’s digital economy: Can WhatsApp chats and SMS amount to a binding business contract?
Justice David Kemei answered in the affirmative, provided the law’s essentials are met. “It is trite law that oral agreements made in good faith are legally binding as long as the claimant can substantiate them,” the judge said, citing Section 107 of the Evidence Act on the burden of proof.
The court stressed that contracts need not be written to be enforceable. What matters is whether there was an offer, acceptance, consideration, and capacity.
Those elements, the court said, can be inferred from conduct and communications. “Contracts can be inferred from the conduct of the parties and need not be in writing,” the judgment stated, adding that a party relying on an oral agreement may prove it through “emails, texts, written communication, and conduct.”
In this case, the digital trail proved decisive. The court examined short text messages and WhatsApp correspondence presented by Mr Okoth. They showed discussions on daily charges, promises to pay by a certain date, explanations for delayed payment, and requests to settle at least 60 percent of the outstanding amount.
“It is noted that the parties did not sign any written agreement, but there are several short text messages (SMS) and WhatsApp correspondences that were presented by the respondent as evidence of an oral agreement,” the court stated.
Mr Ochiel acknowledged collecting the machine and admitted paying Sh5,000, a fact “captured in the communications.”
From that evidence, the court found “an obvious meeting of minds.” It concluded that “the terms of the oral agreement are captured in the correspondences via SMS and WhatsApp messages [and] bound the parties.”
The court also noted that since Mr Ochiel did not raise objections to the production of the communication evidence, the parties were deemed to have accepted the documents as part of the evidence.
Mr Ochiel had challenged the admissibility of the messages, arguing they lacked a certificate under Section 106B of the Evidence Act.
The court rejected that defence. He also withdrew his preliminary objection, failed to object when the messages were produced, and effectively accepted them as evidence.
“The appellant is therefore deemed to have agreed with the contents of those communications,” the court held, finding the statutory requirements satisfied.
The ruling carries a broader lesson for businesses and individuals who transact informally. Courts, the judge said, will not rewrite bargains simply because one party later regrets the terms.
Citing past authorities, the judgment reiterated that parties are bound by their agreements unless illegality, fraud, coercion, or undue influence is proven. Complaints that the charges exceeded the price of a new machine did not sway the court.
Jurisdiction arguments also failed. Although the machine was collected in Dagoretti, Kiambu, the court found Siaya proper because the respondent resided and worked there, satisfying the Civil Procedure Act.
Ultimately, the appeal was dismissed with costs, with the court finding that Mr. Ochiel acted in bad faith by using the machine without paying and failing to return it, forcing Mr. Okoth to sue.
Beyond the Sh145,000 award, the message is unmistakable. In Kenya’s courts, a handshake deal backed by WhatsApp or SMS can carry the full force of law. Every text message counts.
