Kenya Information and Communications Act

Section 1. Short title Section This Act may be cited as the Kenya Information and Communications Act. [Act No. 1 of 2009 , s. 3.]

Section 2. Interpretation Section 2(1)(a) is uniquely linked to the signatory; Section 2(1)(b) is capable of identifying the signatory: Section 2(1)(c) it is created using means that the signatory can maintain under his sole control; and Section 2(1)(d) it is linked to the data to which it relates in such a manner that any subsequent change to the data is detectable; Section 2(1)(a) is fully controlled by a non-profit entity and carried on for nonprofitable purposes; Section 2(1)(b) serves a particular community; Section 2(1)(c) encourages members of the community served by it or persons associated with or promoting the interests of such community to participate in the selection and provision of programmes to be broadcast in the course of such broadcasting service; and Section 2(1)(d) may be funded by donations, grants, sponsorships or membership fees, or by any combination of the aforementioned; Section 2(1)(a) any program or data held in the computer system is altered or erased; Section 2(1)(b) any program or data is added to its contents; or Section 2(1)(c) any act occurs which impairs the normal operation of the computer system; Section 2(1)(i) when used with reference to telec...

Section 3. Establishment of Commission Section 3(1) There is hereby established a Commission to be known as the Communications Authority of Kenya. Section 3(2)(a) suing and being sued; Section 3(2)(b) taking, purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property; Section 3(2)(c) borrowing or lending money; and Section 3(2)(d) doing or performing all such other things or acts for the proper performance of its functions under this Act which may be lawfully done or performed by a body corporate.

Section 4. Headquarters Section The Headquarters of the Commission shall be in Nairobi.

Section 5. Object and purpose of the Commission Section 5(1) The object and purpose for which the Commission is established shall be to licence and regulate postal, information and communication services in accordance with the provisions of this Act. Section 5(2) The Commission shall have all powers necessary for the performance of its functions under this Act. Section 5(3) The Commission may enter into association with such other bodies or organisations within or outside Kenya as the Commission may consider desirable or appropriate and in furtherance of the purpose for which the Commission is established. Section 5(4)(a) any policy guidelines of a general nature relating to the provisions of this Act notified to it by the Cabinet Secretary and published in the Gazette ; Section 5(4)(b) Kenya’s obligations under any international treaty or agreement relating to the provisions of telecommunication, radio and postal services. Section 5(5) Deleted by ActNo. 1 of 2009, s. 5(b). [Act No. 1 of 2009 , s. 5.]

Section 6. Board of Authority Section 6(1)(a) a chairperson appointed by the President; Section 6(1)(b) the Principal Secretary for the time being responsible for matters relating to broadcast, electronic, print and all other types of media; Section 6(1)(c) the Principal Secretary for the time being responsible for matters relating to finance; Section 6(1)(d) the Principal Secretary for the time being responsible for matters relating to internal security; and Section 6(1)(e) seven persons appointed by the Cabinet Secretary. Section 6(2)(a) that the appointees to the Board reflect the interests of all sections of society; Section 6(2)(b) equal opportunities for persons with disabilities and other marginalised groups; and Section 6(2)(c) that not more than two-thirds of the members are of the same gender.

Section 7. Powers of the Board Section manage, control and administer the assets of the Commission in such manner and for such purposes as best promote the purposes for which the Commission is established;

Section 8. Conduct of business and affairs of the Board Section The conduct and regulation of the business and affairs of the Board shall be as provided in the First Schedule, but subject thereto, the Board may regulate its own procedure.

Section 9. Delegation by the Board Section The Board may, by resolution either generally or in any particular case, delegate to any committee of the Board or to any member, officer, employee or agent of the Commission the exercise of any of the powers or the performance of any of the functions or duties of the Board under this Act.

Section 10. Remuneration of Board members Section The Board, in consultation with the Cabinet Secretary, shall pay to members of the Board such remuneration, fees or allowances for expenses as it may determine.

Section 11. The Director-General Section 11(1) The Director-General shall be the chief executive officer of the Authority and shall be responsible for the day to the day management of the Authority. Section 11(2) The Director-General shall be an ex officio member of the Board but shall have no right to vote at any meeting of the Board. Section 11(3) The Director-General shall be recruited and appointed by the Board through a competitive process. Section 11(4) The Board shall determine the terms and conditions of service of the Director-General, in consultation with the Public Service Commission. Section 11(5) The Director-General shall be appointed for a term of four years renewable once. [Act No. 41A of 2013 , s. 9.]

Section 12.[Repealed by ActNo. 41A of 2013, s. 10.]

Section 13. Staff of the Commission Section The Board may appoint such officers or servants as are necessary for the proper discharge of the functions of the Commission under this Act or any other written law, upon such terms and conditions of service as the Board may determine.

Section 14. The common seal of the Commission Section 14(1) The common seal of the Commission shall be kept in such custody as the Board may direct and shall not be used except on the order of the Board. Section 14(2) The common seal of the Commission, when affixed to a document and duly authenticated, shall be judicially and officially noticed and unless and until the contrary is proved, any necessary order or authorisation by the Board under this section shall be presumed to have been duly given.

Section 15. Protection from personal liability Section Subject to section 16 , no matter or thing done by a member of the Board or by any officer, employee or agent of the Commission shall, if the matter or thing is done bona fide for executing the functions, powers or duties of the Commission under this Act, render the member, officer, employee or agent or any person acting on their directions personally liable to any action, claim or demand whatsoever.

Section 16. Liability for damages Section The provisions of section 15 shall not relieve the Commission of the liability to pay compensation or damages to any person for any injury to him, his property or any of his interests caused by the exercise of any power conferred by this Act or any other written law or by the failure, whether wholly or partially, of any works.

Section 17. Funds of the Commission Section such moneys or assets as may accrue to or vest in the Commission in the course of the exercise of its powers or the performance of its functions under this Act;

Section 18. Financial year Section The financial year of the Commission shall be the period of twelve months ending on the thirtieth June in each year.

Section 19. Annual estimates Section 19(1) At least three months before the commencement of each financial year, the Board shall cause to be prepared estimates of the revenue and expenditure of the Commission for that year. Section 19(2)(a) for the payment of the salaries, allowances and other charges in respect of the staff of the Commission and the members of the Board; Section 19(2)(b) for the payment of the pensions, gratuities and other charges in respect of retirement benefits to staff of the Commission; Section 19(2)(c) for the proper maintenance of the buildings and grounds of the Commission; Section 19(2)(d) for the proper maintenance, repair and replacement of the equipment and other movable property of the Commission; Section 19(2)(e) for the creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance or replacement of buildings or equipment or in respect of such other matters as the Board may deem fit; Section 19(2)(f) for the payment of the salaries, allowances and other charges in respect of the staff of the National Communications Secretariat established under section 84 , and such other expenses of the Secreta...

Section 20. Accounts and audit Section 20(1) The Board shall cause to be kept all proper books and records of accounts of the income, expenditure, assets and liabilities of the Commission. Section 20(2)(a) a statement of income and expenditure during that year; and Section 20(2)(b) a statement of the assets and liabilities of the Commission on the last day of the financial year. Section 20(3) The accounts of the Commission shall be audited by the Auditor-General or by an auditor appointed by the Board with the written approval of the Auditor-General. Section 20(4) The appointment of an auditor shall not be terminated by the Board without the prior written consent of the Auditor-General. Section 20(5) The Auditor-General may give general or special directions to an auditor appointed under subsection (3) and the auditor shall comply with those directions. Section 20(6) An auditor appointed under subsection (3) shall report directly to the Auditor-General on any matter relating to the directions given under subsection (5) of this section. Section 20(7) Within a period of six months after the end of the financial year, the Auditor-General shall report on the examination and audit of th...

Section 21. Investment of funds Section 21(1) The Board may invest any of the funds of the Commission which are not immediately required for its purposes in such securities as the National Treasury may, from time to time, approve. Section 21(2) The Board may place on deposit with such bank or banks as it may determine, any moneys not immediately required for the purposes of the Commission.

Section 22. Annual report Section 22(1) The Board shall, within three months after the end of each financial year, prepare and submit to the Cabinet Secretary a report of the operations of the Board for the immediately preceding year. Section 22(2) The Cabinet Secretary shall lay the annual report before the National Assembly within three months of the day the Assembly next sits after the report is presented to him.

Section 5A. Independence of the Authority Section 5A(1) The Authority shall be independent and free of control by government, political or commercial interests in the exercise of its powers and in the performance of its functions. Section 5A(2) In fulfilling its mandate, the Authority shall be guided by the national values and principles of governance in Article 10 and the values and principles of public service in Article 232(1) of the Constitution. [Act No. 1 of 2009 , s. 6, Act No. 41A of 2013 , s. 4.]

Section 5B. Freedom of the Media Section 5B(1) The Authority shall, in undertaking its functions under this Act comply with the provisions of Article 34(1) and (2) of the Constitution. Section 5B(2) Subject to Article 24 of the Constitution, the right to freedom of the media and freedom of expression may be limited for the purposes, in the manner and to the extent set out in this Act and any other written law. Section 5B(3) A limitation of a freedom under subsection (2) shall be limited only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Section 5B(4)(a) the spread of propaganda for war; Section 5B(4)(b) incitement to violence; Section 5B(4)(c) the spread of hate speech; or Section 5B(4)(d) constitutes ethnic incitement, vilification of others persons or community or incitement to cause harm; or Section 5B(4)(d)(i) constitutes ethnic incitement, vilification of others persons or community or incitement to cause harm; or Section 5B(4)(d)(ii) is based on any ground of discrimination specified or contemplated in Article 27(4). Section 5B(5) The Cabinet Secretary, in consultation with the A...

Section 5C. Policy guideleines by the Cabinet Secretary Section 5C(1) The Cabinet Secretary may issue to the Authority, policy guidelines of a general nature relating to the provisions of this Act. Section 5C(2) The guidelines referred to under subsection (1) shall be in writing and shall be published in the Gazette . [Act No. 41A of 2013 , s. 5.]

Section 6A. Qualifications for appointment of chairperson and members of the Board Section 6A(1)(a) a citizen of Kenya; Section 6A(1)(b) law; Section 6A(1)(b)(i) law; Section 6A(1)(b)(ii) telecommunications, information and communication technology; Section 6A(1)(b)(iii) broadcasting; Section 6A(1)(b)(iv) postal regulation; Section 6A(1)(b)(v) humanities and social sciences; or Section 6A(1)(b)(vi) any other relevant field. Section 6A(1)(c) has experience in the relevant sector for a period of at least ten years in the case of the chairperson and five years in the case of any other member; and Section 6A(1)(d) satisfies the requirements of Chapter Six of the Constitution. Section 6A(2) Despite subsection (1)(b) and (c), a person may be qualified for appointment as a chairperson or member of the Board, if such person, not being a degree holder, demonstrates that he or she has a distinguished career of not less than twenty years in the information, communication and technology sector. Section 6A(3)(a) in the last six months immediately preceding the appointment, had personal direct or indirect commercial interest in the sector regulated under this Act; Section 6A(3)(b) is an office-b...

Section 6B.[Deleted by ActNo. 18 of 2018, Sch.]

Section 6C. Term of office Section The chairperson and members of the Board shall hold office for a period of three years renewable once. [Act No. 41A of 2013 , s. 7.]

Section 6D. Vacation from office Section 6D(1)(a) resigns from office by notice in writing to the Cabinet Secretary; Section 6D(1)(b) dies; Section 6D(1)(c) gross misconduct, whether in the performance of the chairperson or member's functions or otherwise; or Section 6D(1)(c)(i) gross misconduct, whether in the performance of the chairperson or member's functions or otherwise; or Section 6D(1)(c)(ii) is absent from three consecutive meetings of the Authority without permission of the Board, except for good cause shown. Section 6D(2) A person desiring the removal of a member of the Board of the Authority on the grounds specified in subsection (1)(c) may present a complaint under oath to the Cabinet Secretary, setting out the alleged facts constituting that ground. Section 6D(3) The Cabinet Secretary shall consider the complaint and, if satisfied that it discloses a ground under subsection (1)(c), shall send the complaint to the President. Section 6D(4)(a) may suspend the chairperson or member pending the outcome of the complaint; and Section 6D(4)(b) shall appoint a tribunal in accordance with subsection (5). Section 6D(5)(a) a person who holds or has held office as a Judge of a sup...

Section 23. Provision of telecommunication services Section 23(1) The Commission shall, so far as is reasonably practicable, ensure there are provided throughout Kenya, such telecommunication services and in particular, emergency, public payphone and directory information services, as are reasonably necessary to satisfy the public demand thereof. Section 23(2)(a) protect the interests of all users of telecommunication services in Kenya with respect to the prices charged for and the quality and variety of such services; Section 23(2)(b) maintain and promote effective competition between persons engaged in commercial activities connected with telecommunication services in Kenya in order to ensure efficiency and economy in the provision of such services and to promote research and development in relation thereto; Section 23(2)(c) encourage private investment in the telecommunication sector; Section 23(2)(d) enable persons providing telecommunication services or producing telecommunication apparatus in Kenya to compete effectively in the provision of such services or apparatus outside Kenya; Section 23(2)(e) have regard to the values and principles of the Constitution; Section 23(2)(ee...

Section 24. Requirement of licence Section 24(1)(a) operate a telecommunication system; or Section 24(1)(b) provide any telecommunication services, Section 24(2) A person who contravenes any of the provisions of this section commits an offence and shall be liable on conviction to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or to both. [Act No. 1 of 2009 , s. 8.]

Section 25. Telecommunication Licences Section 25(1)(a) operate telecommunication systems; or Section 25(1)(b) provide telecommunication services, Section 25(2)(a) the provision, by means of any telecommunication system to which the licence relates, of any telecommunication services of a description specified in the licence; and Section 25(2)(b) any other telecommunication systems of a description specified in the licence; and Section 25(2)(b)(i) any other telecommunication systems of a description specified in the licence; and Section 25(2)(b)(ii) any telecommunication apparatus of a description specified in the licence. Section 25(3)(a) to provide the telecommunication services specified in the licence or of a description so specified; Section 25(3)(b) to interconnect to the telecommunication system to which the licence relates, or to permit the connection to such system, of such other telecommunication systems and apparatus as are specified in the licence or are of a description so specified, either without charge or subject to a reasonable charge to be determined in accordance with the method specified in the licence; Section 25(3)(c) to permit the provision by means of the tel...

Section 26.[Deleted by ActNo. 1 of 2009, s. 9.]

Section 27. General regulations for telecommunication services Section 27(1) The Cabinet Secretary in consultation with the Commission may make regulations generally with respect to telecommunication services. Section 27(2)(a) the running of telecommunication systems; Section 27(2)(b) the privacy of telecommunication; Section 27(2)(c) the provision of telecommunication services pursuant to the provisions of section 23 and in particular, the manner in which such services shall be offered and performed, the issue of licences and the payment of fees in respect thereof, and such other matters as it deems fit; Section 27(2)(d) the period during which and conditions subject to which messages and papers relating to telecommunication services belonging to, or in the custody of telecommunication operators shall be preserved; Section 27(2)(e) the issue, variation and withdrawal of approvals in respect of contractors for relevant operations in connection with any telecommunication system and the maintenance of registers of such contractors; Section 27(2)(f) fees and other charges for any matter permitted or matters required to be done under this Act in relation to telecommunication services;...

Section 28. Obtaining service dishonestly Section A person who dishonestly facilitates or obtains a service provided by a person authorised under this Act to provide telecommunication services with intent to avoid payment of any charge applicable to the provision of that service commits an offence and shall be liable on conviction to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or to both. [Act No. 1 of 2009 , s. 10.]

Section 29. Improper use of system Section sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

Section 30. Modification, etc., of messages Section A person engaged in the running of a licensed telecommunication system who, otherwise than in the course of his duty, intentionally modifies or interferes with the contents of a message sent by means of that system, commits an offence and shall be liable on conviction to a fine not exceeding three hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.

Section 31. Interception and disclosure Section intercepts a message sent through a licensed telecommunication system; or

Section 32. Tampering with telecommunication plant Section prevent, obstruct or delay transmission of any message;

Section 33. Trespass and wilful obstruction of telecommunication officer Section without permission, enters the equipment room of a telecommunication operator; or

Section 34. Prohibition of unlicensed telecommunication system Section 34(1) A person who, while not holding a valid licence under section 25 , runs a telecommunication system or provides a telecommunication service, commits an offence. Section 34(2)(a) that person provides telecommunication services which are not of a description specified in the licence; or Section 34(2)(b) there is connected to the licensed system, any telecommunication system or, as the case may be, any telecommunication apparatus which is not of a description so specified in the licence. Section 34(3) A person convicted of an offence under this section shall, on conviction be liable to a fine not exceeding one million shillings, or to imprisonment for a term not exceeding five years, or to both. [Act No. 1 of 2009 , s. 12.]

Section 25A. Payment of licence fees Section 25A(1) The Authority may prescribe fees payable for a licence issued under this Part. Section 25A(2) Subject to subsection (3), an applicant shall pay the prescribed fees in full before the grant of a licence. Section 25A(3)(a) the fees exceed one billion shillings; Section 25A(3)(b) the applicant is a Kenyan citizen or an entity in which Kenyan citizens own at least fifty-one per cent shares; and Section 25A(3)(c) the applicant undertakes to construct at least five hundred base transceiver stations across the country within three years of the grant of the licence. Section 25A(4)(a) cease to be a Kenyan citizen or an entity in which Kenyan citizens own at least fifty-one per cent shares; or Section 25A(4)(b) propose a transfer or assignment of the licence to a non-citizen or an entity in which Kenyan citizens do not own at least fifty-one per cent shares. Section 25A(5) The Authority shall revoke a licence granted subject to the conditions under subsection (3) if the licensee fails to meet the requirement under paragraph (3)(c). [Act No. 18 of 2018 , Sch.]

Section 27A. Duties of telecommunications operators Section 27A(1)(a) from natural persons, the person's full name, identity card number, date of birth, gender, physical and postal address; Section 27A(1)(b) from corporate persons or statutory bodies, official name, postal and physical address, particulars of registration, incorporation, enabling legislation or Gazette notice, as the case may be; and Section 27A(1)(c) such other information as may be prescribed from time to time. Section 27A(2)(a) existing subscribers register their SIM-cards within such time period as may be prescribed; Section 27A(2)(b) proper physical or electronic records are kept of the information referred to in subsection (1) and any change in such information; Section 27A(2)(c) the registration details of a subscriber are kept in a secure and confidential manner, and shall not be disclosed without the written consent of the subscriber. Section 27A(3)(a) for the purpose of facilitating the performance of any statutory functions of the Authority; Section 27A(3)(b) in connection with the investigation of any criminal offence or for the purpose of any criminal proceedings; or Section 27A(3)(c) for the purpose o...

Section 27B. Registration by agents Section 27B(1) A telecommunications operator may contract or otherwise engage a registration agent for purposes of registering existing or new subscribers. Section 27B(2)(a) ensure that proper registration of the subscriber is conducted prior to the selling of a SIM-card; Section 27B(2)(b) provide all records of registration to the telecommunications operator within such time after registration as may be prescribed; Section 27B(2)(c) ensure that the registration details of a subscriber are kept in a secure and confidential manner and are not disclosed to any other person; Section 27B(3) A telecommunications operator shall keep a record of its registration agents and such record shall be made available to the Authority at such time and in such manner as may be prescribed. Section 27B(4) A registration agent shall not hawk SIM-cards and shall ensure that they are sold and registered in a formal retail outlet. Section 27B(5) A person who contravenes this section commits an offence and shall be liable on conviction to a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding twelve months, or both. [Act No. 41A of...

Section 27C. Duties of telecommunication subscribers Section 27C(1)(a) provide the registration details required under section 27A ; Section 27C(1)(b) report to a telecommunications operator or a police station when his or her SIM-card is lost or stolen, within forty-eight hours of being lost or stolen or such other period as may be prescribed; Section 27C(1)(c) report any change in any identification details to a telecommunications operator within thirty days of the change taking place. Section 27C(2) A subscriber shall be prima facie liable for activities or transactions carried out using a SIM-card, registered under the subscriber's name. Section 27C(3) Notwithstanding subsection (2), a subscriber shall not be held liable if the subscriber can prove that he or she was not in control of the SIM-card at the time a particular activity or transaction was carried out. Section 27C(4) A person who contravenes this section, or knowingly provides false information to a telecommunications operator or registration agent commits an offence and shall be liable on conviction a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding six months, or both. [A...

Section 27D. Regulations on SIM-card Registration

Section 32A. Severing with intent to steal Section A person who, with intent to steal, severs any telecommunication apparatus or other works under the control of a licensee, commits an offence and is liable, on conviction, to a fine of not less than five million shillings or to imprisonment for a term of not less than ten years or to both. [Act No. 12 of 2012 , Sch.]

Section 35. Licensing requirements Section 35(1) Subject to subsection (2), no person shall, establish or use any radio communication station or apparatus except in accordance with the terms of a licence granted under section 36 . Section 35(2) A person who contravenes the provisions of subsection (1) commits an offence and shall be liable on conviction to a fine not exceeding five million shillings, or to imprisonment for a term not exceeding three years, or to both.

Section 36. Radio communication licence Section 36(1) The Commission may, on application in the prescribed manner, grant a licence authorising any person or persons of a specified class to establish or to use any radio communication station or apparatus or to install or use any apparatus for radio communication. Section 36(2)(a) in the case of a licence to establish a station, limitations as to the position and nature of the station, the purposes for which, the circumstances in which, and the persons by whom the station may be used, and the apparatus which may be imported, installed or used therein; and Section 36(2)(b) in the case of any other licence, limitations as to the apparatus which may be installed or used, and the places where, the purposes for which, the circumstances in which and the persons by whom the apparatus may be used. Section 36(3) A radio communication licence shall, unless earlier revoked in accordance with any term in that regard contained in the licence, continue in force for such period as may be specified therein. Section 36(4) Subject to the provisions of this Act, the Commission may renew or revoke a licence issued under this Part, or vary or modify any...

Section 37. Licences for scientific or research use Section 37(1) Where an application for the grant or renewal of a radio communication licence is made to the Commission by any person, and the Commission is satisfied that the purpose of the licence is to enable the applicant to conduct experiments in radio communications for the purpose of scientific research, the Commission shall subject to subsection (2) not refuse to grant or renew the licence, and shall not revoke the licence when granted and no sum shall be payable under any regulations in respect of such licence except the fee for the grant or the renewal thereof. Section 37(2) Nothing in subsection (1) shall prevent the Commission from refusing to grant or renew, or from revoking, a radio communication licence if the applicant has, whether before or after the grant or last renewal of the licence, been convicted of any offence under this Act, whether in relation to any radio communication apparatus covered by such licence or any other radio communication apparatus, or has been convicted of using any apparatus for the purpose of interfering with any radio communication. Section 37(3) Nothing in subsection (1) shall limit the...