Verbal, WhatsApp and SMS contracts are binding - court

Your WhatsApp, text  and phone call commitments could henceforth land you in jail if you don’t honour them, the High Court in Siaya has ruled in a new precedent.

The court held that promises made verbally or through electronic communication can amount to binding obligations, even in the absence of a written and signed contract.

The ruling by Justice David Kemei, stems from a Fredrick Ochiel v Kennedy Okoth case arising from a dispute over an ultrasound machine that had been leased based on phone calls and WhatsApp messages.

The court, in the ruling made on Monday January 19, upheld a Sh145,000 judgment arising from the WhatsApp engagements that was never written, never signed, and never stamped.

The machine was collected, used, partially paid for and never returned. When payment was demanded, the defence was simple, there was no agreement.

“It is further noted that the parties did not sign any written agreement but that there are several short text messages (SMS) and WhatsApp correspondences which were presented by the Respondent as evidence of an oral agreement,” part of the ruling by Justice Kemei states.

The Court found that the parties had agreed on the daily charge, acted on that agreement, and communicated consistently about payment and return through their phones.

In dismissing the appeal, the Court pointed out that a contract does not have to be written to be enforceable.

In the court documents, seen by The Star, Kemei says that oral agreements are valid if offer, acceptance, and consideration can be proven.

In this case, the WhatsApp messages, SMS exchanges, partial payment, and conduct of the parties left no doubt that there was a meeting of minds.

“It is trite law that oral agreements which have been made in good faith are legally binding as long as the claimant is able to substantiate in court pursuant to the provisions of Section 107 of the Evidence Act regarding the burden of proof,” the judge noted.

The Court was clear that courts will not rewrite contracts or rescue parties from bargains they voluntarily entered into, unless there is fraud, coercion, or illegality.

However, the ruling cautions that a party relying on an oral agreement must present evidence such as witnesses, emails, texts, written communication and conduct.

Okoth told the court that he spoke with Ochiel, (appellant) on the phone on September 9 and 10, 2024, during those calls, Ochiel asked to lease an ultrasound machine.

They agreed that the machine would be hired at a cost of Sh1,000 per day. Later, Ochiel collected the machine from Dagoretti, where Achola’s employee, Linder Kalunge, handed it over to him.

He told the court that the appellant only paid Sh5,000 on 16 December 2024 and made no other payments after that. The machine was also never returned. By the time he filed the case in court, the amount owed had reached Sh145,000.

Achola added that because the appellant refused to return the machine, he reported the matter to Siaya Police Station.

During cross-examination, Okoth said the agreement was to begin on 11 September 2024 and confirmed again that it was an oral agreement.

He told the court that Ochiel had declined to return the machine. Okoth also held that he refused to collect the machine from a third party because it was Ochiel who hired it and therefore should return it himself.

The ruling followed an appeal from a decision made by Magistrate Jacob Punga Mkala, at the Siaya Small Claims Court in Case in 2025.

In that decision, the court ruled in favour of the claimant and ordered the other party to pay Sh145,000, plus Sh10,000 to cover costs, and interest.