What every Kenyan business owner must learn from the Persons with Disabilities Act, 2025 before the credits roll on their reputation, and their bank balance.
By Mokua Manyara, Advocate of the High Court of Kenya | Senior Partner, MNW & Advocates LLP
Every blockbuster needs a villain. We expect the villain to arrive with thunder, a scar and a sinister laugh. We rarely suspect the polite little machine sitting on the counter, blinking its blue light, asking us ever so sweetly to “tap or insert your card.” Yet that is exactly where the trouble hides. The most dangerous antagonist in Kenyan retail today is not a masked intruder. It is a touchscreen PDQ terminal that cannot speak, cannot be read by touch and cannot be operated by a customer who happens to be blind. It is a villain so quiet that most business owners are cheerfully feeding it popcorn while it writes their downfall.
Let me tell you the story. Picture it as a film in three acts.
Act One: The Glamour
Our leading man is Maximilian Tillington, owner of the dazzling supermarket empire known as Glamour Mart. Max is the kind of character a matinee idol would beg to play. Gold cufflinks, a smile insured for millions and a private mantra he repeats to the mirror each morning: “the customer is king, and I am the kingmaker.” His aisles gleam. His checkout terminals are the very latest, slim and sleek, all glass and no buttons, supplied with great ceremony by Patricia Platinum, the impossibly poised head of Merchant Acquiring at Apex Bank. Patricia speaks only in superlatives. “Frictionless,” she purrs. “Future proof. Seamless.” The two of them shake hands over the new terminal fleet as the soundtrack swells.
Nobody, in this triumphant opening scene, asks a single question about the customer who cannot see the screen.
Act Two: The Plot Twist
Enter our true hero, Professor Amani Tembo, a retired professor of philosophy, silver bearded, unhurried and quietly magnificent. He is also blind, which he treats as a fact about the world rather than a tragedy about himself. He arrives at Glamour Mart, fills his basket, glides to the till and presents his card. The terminal, that smooth little villain, demands a PIN through a screen Amani cannot see, on a surface that offers nothing to his fingers. The cashier leans in and says, in a stage whisper that carries to the next county, “just tell me your PIN, Mzee, I will type it for you.”
There it is. The plot twist that every business owner misses. To buy a loaf of bread, Professor Tembo is asked to surrender his secret PIN to a stranger, in public, and to thank everyone for the privilege. He is asked to trade his security, his privacy and his dignity for the right to spend his own money. He smiles, because he has read more law than most advocates, and he says only this: “How fascinating. You have built a shop that sells everything except respect.”
Cue the dramatic music. Because the Professor is right, and the law agrees with him.
Intermission: The Law, in Plain Light
Here is the script that Max and Patricia never read.
The Constitution of Kenya, 2010 does not whisper on this subject. It declares under Article 54 that a person with disability is entitled to dignity, to reasonable access to information and to communication in Braille or other appropriate means. It forbids discrimination on the ground of disability under Article 27, and it protects dignity under Article 28. Crucially, these rights bind everyone, not only the Government. A company is a “person” too, so Glamour Mart and Apex Bank are each on the hook.
Then came the Persons with Disabilities Act, 2025, which turned these promises into hard obligations with sharp teeth.
a. Section 27 speaks directly to the bank. Institutions that provide financial services must ensure that their services, their equipment and their platforms are available to persons with disabilities in accessible formats and technologies. A PDQ terminal is equipment. A PDQ terminal is a platform. The duty has Patricia Platinum’s name on it.
b. Section 78 speaks directly to the trader. A person who provides goods or services to the public must not make it impossible or unreasonably difficult for persons with disabilities to use them. At the till it is Max who provides the service and chooses the machine, so Max cannot hide behind the bank.
c. Section 31 hands the National Council for Persons with Disabilities a weapon called an Adjustment Order, which can be served on the proprietor of the premises or the provider of the service or on both. Ignore it and the penalty climbs to five million shillings or five years in prison.
d. Section 76 treats a customer denied a service on the ground of disability as a person who has suffered an injury, with a right to recover damages.
And lest anyone hope to escape by pleading good intentions, the Supreme Court has already closed that door. In Gichuru v Package Insurance Brokers Ltd the Court held that discrimination need not be deliberate, that the failure to make reasonable accommodation is itself a wrong and that a person who refuses to accommodate must show real hardship or pay. There was no cruel laugh, no villainous monologue, only a failure to think. The Court still awarded damages.
So the great revelation of our second act is this. The barrier did not need to be intentional to be unlawful. It only needed to exist.
Act Three: The Reckoning, and the Question of Who Pays
Now the courtroom drama. The audience leans forward and asks the only question that matters: who is liable, the bank that built the inaccessible machine or the shop that used it?
The unsatisfying answer for the defendants, and the delicious answer for everyone else, is both.
i. Apex Bank carries the primary design duty. It chose the terminals, it owns the fleet and it alone could have specified speech output, a tactile keypad and a headphone socket. Section 27 was written for it. Handing an inaccessible machine across the counter does not transfer the obligation, it merely shares the guilt.
ii. Glamour Mart carries an independent duty as the front of house service provider. Max decides what payment methods to offer and what alternatives to provide, and Max controls the premises the public enters. Sections 6, 76 and 78 reach him directly.
The likely result is joint and several liability, apportioned by control. Who built the barrier. Who deployed it. Who could have cured it and chose not to. In the worst version of the ending, our two glamorous protagonists discover that the regulator, the customer and the court are all reading from the same statute, and that the statute is not on their side.
Roll the bleak final scene. Max stares at a judgment sheet. Patricia practises a new word in the mirror, and the word is “regret.”
The Better Ending You Can Still Choose
Here is the secret that the best directors know. The ending is not fixed until you film it. Professor Tembo’s scene can be a horror, in which the call is coming from inside your own till, or it can be the warm closing shot in which he taps a talking terminal, hears the amount read aloud through a discreet earpiece, enters his PIN in private with dignity intact and walks out a loyal customer for life. Same shop. Same machine budget, more or less. Entirely different final reel.
The difference between the two endings is one decision, made early, by someone who read the script before the cameras rolled. In our trade we call that someone a lawyer, and we call the script a compliance audit.
This is the heart of the matter and the reason I have told you a story rather than handed you a statute. It is always cheaper to prevent the lawsuit than to survive it. An accessibility failure that costs a few thousand shillings to fix in the procurement room can cost millions in damages, penalties and ruined reputation in the courtroom. The PDQ terminal is only the opening scene. The same risk hides in your premises, your website, your application forms, your employment practices and your customer communications. The Act covers them all.
Your Invitation to the Premiere
At MNW & Advocates LLP we conduct a Persons with Disabilities Legal and Compliance Risk Audit designed precisely for businesses that would rather rewrite Act One than be ambushed in Act Three. We map your exposure under the Constitution and the Persons with Disabilities Act, 2025, we pressure test your premises, your technology and your policies against the accessibility standards, and we hand you a practical remediation plan that turns a liability into a competitive advantage. Inclusion, it turns out, is not only the law. It is also very good business, because the market of customers with disabilities, and the much larger market of people who admire a business that treats everyone with dignity, is enormous, loyal and currently underserved.
Do not wait for Professor Tembo to arrive at your counter and recite the statute back to you. Call us first. Let us read the script together while the lights are still up.
It is always safer, and far cheaper, to prevent than to cure.
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The author is an Advocate of the High Court of Kenya, a Certified Legal and Compliance Auditor and Senior Partner at MNW & Advocates LLP. All characters in this article are fictional. The law, regrettably for the careless and happily for the prepared, is entirely real.