Preface
AN
ACT
of Parliament to provide for offences relating to computer
systems; to enable timely and effective detection, prohibition,
prevention, response, investigation and prosecution of computer
and cybercrimes; to facilitate international co-operation in
dealing with computer and cybercrime matters; and for connected
purposes
This Act may be cited as
the Computer Misuse and Cybercrimes Act, 2018.
In this Act, unless the context otherwise requires —
-
"access"
means gaining entry into or intent to gain entry by a
person to a program or data stored in a computer system
and the person either —
- (a)
alters, modifies or erases a program or data or any
aspect related to the program or data in the computer
system;
- (b)
copies, transfers or moves a program or data to —
- (i)
any computer system, device or storage medium other than
that in which it is stored; or
- (ii)
to a different location in the same computer system, device
or storage medium in which it is stored;
- (c)
causes it to be output from the computer in which it is held, whether
by having it displayed or in any other manner; or
- (d)
uses it by causing the computer to execute a program or is itself
a function of the program;
-
"Authority"
means the Communications Authority of Kenya;
-
"authorised person"
means an officer in a law enforcement agency or
a cybersecurity expert designated by the Cabinet
Secretary responsible for matters relating to national
security by notice in the Gazette for the purposes
of Part III of this Act;
-
"blockchain technology"
means a digitized, decentralized, public ledger
of all crypto currency transactions;
-
"Cabinet Secretary"
means the Cabinet Secretary responsible for matters
relating to internal security;
-
"Central Authority"
means the Office of the Attorney General and
Department of Justice;
-
"Committee"
means the National Computer and Cybercrimes Coordination Committee
established under section 4;
-
"computer data storage medium"
means a device, whether physical or virtual, containing or designed to contain,
or enabling or designed to enable storage of data, whether available in a single
or distributed form for use by a computer, and from which data is capable of being
reproduced;
-
"computer system"
means a physical or virtual device, or a set of
associated physical or virtual devices, which use electronic, magnetic, optical
or other technology, to perform logical, arithmetic storage and communication
functions on data or which perform control functions on physical or virtual
devices including mobile devices and reference to a computer system includes
a reference to part of a computer system;
-
"content data"
means the substance, its meaning or purport of a specified
communication;
-
"critical information infrastructure system or data"
means an information system, program or data that supports or performs a function with
respect to a national critical information infrastructure;
-
"critical infrastructure"
means the processes, systems, facilities, technologies, networks,
assets and services essentials to the health, safety,
security or economic well-being of Kenyans and the effective functioning of
Government;
-
"cybersquatting"
means the acquisition of a domain name over the internet
in bad faith to profit, mislead, destroy reputation, or deprive another from
registering the same, if the domain name is —
- (a)
similar, identical or confusingly similar to an existing trademark
registered with the appropriate government agency at the time of
registration;
- (b)
identical or in any way similar with the name of a person other than
the registrant, in case of a personal name; or
- (c)
acquired without right or intellectual property interests in it;
-
"data"
means any representation of facts, information or concepts in a form
suitable for processing in a computer system, including a program suitable to
cause a computer system to perform a function;
-
"interception"
means the monitoring, modifying, viewing or recording of non-public
transmissions of data to or from a computer system over a
telecommunications system, and includes, in relation to a function of a computer
system, listening to or recording a function of a computer system or acquiring
the substance, its meaning or purport of such function;
-
"interference"
means any impairment to the confidentiality, integrity or availability
of a computer system, or any program or data on a computer system,
or any act in relation to the computer system which impairs the operation
of the computer system, program or data;
-
"mobile money"
means electronic transfer of funds between banks or
accounts' deposit or withdrawal of funds or payment
of bills by mobile phone;
-
"national critical information infrastructure"
means a vital virtual asset, facility, system, network or process
whose incapacity, destruction or modification would have —
- (a)
a debilitating impact on the availability, integrity or delivery of
essential services including those services, whose integrity, if
compromised, could result in significant loss of life or casualties; or
- (b)
significant impact on national security, national defense, or the
functioning of the state;
-
"network"
means a collection of hardware components and computers interconnected
by communications channels that allow sharing of resources
and information;
-
"password"
means any data by which a computer service or a computer
system is capable of being obtained or used;
-
"pornography"
includes the representation in books, magazines, photographs, films,
and other media, telecommunication apparatus of scenes of sexual
behaviour that are erotic or lewd and are designed to arouse sexual
interest;
-
"premises"
includes land, buildings, movable structures, a physical or
virtual space in which data is maintained, managed, backed up remotely and
made available to users over a network, vehicles, vessels or aircraft;
-
"program"
means data representing instructions or statements that, if
executed in a computer system, causes the computer system to perform a
function and reference to a program includes a reference to a part of a program;
-
"requested State"
means a state being requested to provide legal
assistance under the terms of this Act;
-
"requesting State"
means a state requesting for legal assistance and may for the
purposes of this Act include an international entity to which Kenya is
obligated;
-
"seize"
with respect to a program or data includes to —
- (a)
secure a computer system or part of it or a device;
- (b)
make and retain a digital image or secure a copy of any program
or data, including using an on-site equipment;
- (c)
render the computer system inaccessible;
- (d)
remove data in the accessed computer system; or
- (e)
obtain output of data from a computer system;
-
"service provider"
means —
- (a)
a public or private entity that provides to users of its services the
means to communicate by use of a computer system; and
- (b)
any other entity that processes or stores computer data on behalf
of that entity or its users;
-
"subscriber information"
means any information contained in the form of
data or any form that is held by a service provider, relating to subscribers of its
services, other than traffic data or content data, by which can be established —
- (a)
the type of communication service used, the technical provisions
taken thereto and the period of service;
- (b)
the subscriber's identity, postal, geographic location, electronic
mail address, telephone and other access number, billing and
payment information, available on the basis of the service
agreement or arrangement; or
- (c)
any other information on the site of the installation of
telecommunication apparatus, available on the basis of the service
agreement or arrangement;
-
"telecommunication apparatus"
means an apparatus constructed or adapted for use in transmitting
anything which is transmissible by a telecommunication system or
in conveying anything which is transmitted through such a system;
-
"telecommunication system"
means a system for the conveyance, through the use of electric, magnetic,
electro-magnetic, electro-chemical or electro-mechanical energy, of—
- (a)
speech, music or other sounds;
- (b)
visual images;
- (c)
data;
- (d)
signals serving for the impartation, whether as between persons
and persons, things and things or persons and things, of any
matter otherwise than in the form of sound, visual images or data;
or
- (e)
signals serving for the activation or control of machinery or
apparatus and includes any cable for the distribution of anything
falling within paragraphs
(a),
(b),
(c) or
(d);
-
"traffic data"
means computer data relating to a communication by means
of a computer system, generated by a computer system that formed a part in
the chain of communication, indicating the communication's origin, destination,
route, time, date, size, duration or the type of underlying service; and
-
"trust accounts"
means an account where a bank or trust company is
holding funds in relation to mobile money on behalf of the public depositors.
The objects of this Act are to —
- (a)
protect the confidentiality, integrity and availability of computer
systems, programs and data;
- (b)
prevent the unlawful use of computer systems;
- (c)
facilitate the prevention, detection, investigation, prosecution and
punishment of cybercrimes;
- (d)
protect the rights to privacy, freedom of expression and access to
information as guaranteed under the Constitution; and
- (e)
facilitate international co-operation on matters covered under this Act.
There is established the National Computer and Cybercrimes Co-ordination
Committee.
- (1)
The Committee shall comprise of —
- (a)
the Principal Secretary responsible for matters relating to internal
security or a representative designated and who shall be the
chairperson;
- (b)
the Principal Secretary responsible for matters relating to information,
communication and technology or a representative designated
in writing by the Principal Secretary responsible for information,
communication and technology;
- (c)
the Attorney-General or a representative designated in writing by the
Attorney-General;
- (d)
the Chief of the Kenya Defence Forces or a representative designated
in writing by the Chief of the Kenya Defence Forces;
- (e)
the Inspector-General of the National Police Service or a
representative designated in writing by the Inspector-General of the
National Police Service;
- (f)
the Director-General of the National Intelligence Service or a
representative designated in writing by the Director General of the
National Intelligence Service;
- (g)
the Director-General of the Communications Authority of Kenya or a
representative designated in writing by the Director-General of the
Communications Authority of Kenya;
- (h)
the Director of Public Prosecutions or a representative designated in
writing by the Director of Public Prosecutions;
- (i)
the Governor of the Central Bank of Kenya or a representative
designated in writing by the Governor of the Central Bank of Kenya;
and
- (j)
the Director who shall be the secretary of the Committee and who
shall not have a right to vote.
- (2)
The Committee shall report to the Cabinet Secretary responsible for matters
relating to internal security.
- (1)
The Committee shall —
- (a)
advise the Government on security related aspects touching on
matters relating to blockchain technology, critical infrastructure,
mobile money and trust accounts;
- (b)
advise the National Security Council on computer and cybercrimes;
- (c)
co-ordinate national security organs in matters relating to computer
and cybercrimes;
- (d)
receive and act on reports relating to computer and cybercrimes;
- (e)
develop a framework to facilitate the availability, integrity and
confidentiality of critical national information infrastructure including
telecommunications and information systems of Kenya;
- (f)
co-ordinate collection and analysis of cyber threats, and response to
cyber incidents that threaten cyberspace belonging to Kenya, whether
- (g)
such threats or incidents of computer and cybercrime occur within or
outside Kenya;
- (h)
co-operate with computer incident response teams and other relevant
bodies, locally and internationally on response to threats of computer
and cybercrime and incidents;
- (i)
establish codes of cyber-security practice and standards of
performance for implementation by owners of critical national
information infrastructure;
- (j)
develop and manage a national public key infrastructure framework;
- (k)
develop a framework for training on prevention, detection and
mitigation of computer and cybercrimes and matters connected
thereto; and
- (l)
perform any other function conferred on it by this Act or any other
written law.
- (2)
Subject to the provisions of this Act, the Committee shall regulate its own
procedure.
- (1)
There shall be a Secretariat which shall comprise of the Director and
such number of public officers that, subject to the approval of the Committee,
the Cabinet Secretary responsible for matters relating to internal security in
consultation with the Cabinet Secretary responsible for matters relating to
information, communications and technology may deploy to the Secretariat.
- (2)
The Director shall be —
- (a)
the head of the Secretariat; and
- (b)
responsible to the Committee for the day to day administration of the
affairs of the Secretariat and implementation of the decisions arising
from the Committee.
- (3)
Without prejudice to the generality of the provisions of
subsection (2), the
Director shall be responsible for —
- (a)
the implementation of the decisions of the Committee;
- (b)
the efficient administration of the Secretariat;
- (c)
the management of staff of the Secretariat;
- (d)
the maintenance of accurate records on financial matters and
resource use;
- (e)
the preparation and approval of the budget for the required funding of
the operational expenses of the Secretariat; and
- (f)
the performance of any other duties as may be assigned to him or her
by the Committee.
- (4)
The Director shall be appointed for a single term of four years and shall not
be eligible for reappointment.
The Committee shall submit quarterly reports to the National Security Council.
- (1)
The Director shall, by notice in the Gazette, designate certain systems as
critical infrastructure.
- (2)
The Director shall designate a system as a critical infrastructure if a
disruption of the system would result in —
- (a)
the interruption of a life sustaining service including the supply of
water, health services and energy;
- (b)
an adverse effect on the economy of the Republic;
- (c)
an event that would result in massive casualties or fatalities;
- (d)
failure or substantial disruption of the money market of the Republic;
and
- (e)
adverse and severe effect of the security of the Republic including
intelligence and military services.
- (3)
The Director shall, within a reasonable time of designating a system as
critical infrastructure, inform the owner or operator of the system the reasons for
the designation of the system as a critical infrastructure.
- (4)
The Director shall, within a reasonable time of the declaration of any
information infrastructure, or category or class of information
infrastructure or any part thereof, as a critical information
infrastructure, in line with a critical infrastructure framework issue
directives to regulate —
- (a)
the classification of data held by the critical information infrastructure;
- (b)
the protection of, the storing of and archiving of data held by the critical
information infrastructure;
- (c)
cyber security incident management by the critical information
infrastructure;
- (d)
disaster contingency and recovery measures, which must be put in
place by the critical information infrastructure;
- (e)
minimum physical and technical security measures that must be
implemented in order to protect the critical information infrastructure;
- (f)
the period within which the owner, or person in control of a critical
information infrastructure must comply with the directives; and
- (g)
any other relevant matter which is necessary or expedient in order
to promote cyber security in respect of the critical information
infrastructure.
- (1)
The Committee shall within reasonable time and in consultation with the
owner or a person in control of an identified critical information
infrastructure, submit to the National Security Council its recommendations
of entities to be gazetted as critical information infrastructures.
- (2)
The Committee shall, after the gazettement under
subsection (1),
in consultation with a person that owns or operates the critical information
infrastructure —
- (a)
conduct an assessment of the threats, vulnerabilities, risks, and
probability of a cyberattack across all critical infrastructure sectors;
- (b)
determine the harm to the economy that would result from damage or
unauthorized access to critical infrastructure;
- (c)
measure the overall preparedness of each sector against damage
or unauthorized access to critical infrastructure including the
effectiveness of market forces driving security innovation and
secure practices.
- (d)
identify any other risk-based security factors appropriate and
necessary to protect public health and safety, or national socioeconomic security; and
recommend to the owners of systems designated as critical
infrastructure, methods of securing their systems against cyber
threats.
- (1)
The owner or operator of a system designated as critical infrastructure shall
report to the Committee any incidents likely to constitute a threat in the nature of
an attack that amounts to a computer and cybercrime and the action the owner or
operator intends to take to prevent the threat.
- (2)
Upon receipt of a report by the Committee, under
subsection (1), the
National Security Council shall provide technical assistance to the owner or
operator of a critical infrastructure to mitigate the threat.
- (3)
The Director may institute an investigation of a computer and cybercrime
attack on his or her own volition and may take necessary steps to secure any critical
infrastructure without reference to the entity.
- (4)
The Director shall submit a report on any threat in the nature of a computer
and cybercrime reported by the owners or operators of critical infrastructure
periodically to the National Security Council.
- (1)
A private entity may enter into an information sharing agreement with a
public entity on critical information infrastructure.
- (2)
An agreement under subsection (1)
shall only be entered into for the
following purposes and in line with a critical infrastructure framework —
- (a)
to ensure cyber security;
- (b)
for the investigation and prosecution of crimes related to cyber
security;
- (c)
for the protection of life or property of an individual; and
- (d)
to protect the national security of the country.
- (3)
Prior to the sharing of information under
subsection (1), a party to an
agreement shall review the information and ascertain whether the information
contains personal details that may identify a specific person not directly related to
a threat that amounts to a computer and cybercrime and remove such information.
- (4)
A person shall not, under this Part, share information
relating to the health
status of another person without the prior written consent of the person to whom
the information relates.
- (1)
The owner or person in control of a critical information infrastructure shall
annually submit a compliance report on the critical information infrastructure to
the Committee in line with a critical infrastructure framework in order to evaluate
compliance.
- (2)
The Director, shall within a reasonable time before an audit on a critical
information infrastructure or at any time there is an imminent threat in the nature of
an attack that amounts to a computer and cybercrime, notify the owner or person
in control of a critical information infrastructure in writing —
- (a)
the date on which an audit is to be performed; and
- (b)
the particulars and contact details of the person who is responsible
for the overall management and control of the audit.
- (3)
The Director shall monitor, evaluate and report on the adequacy and
effectiveness of any audit.
- (4)
The Director may request the owner or person in control of a critical
information infrastructure to provide such additional information as may be
necessary within a specified period in order to evaluate the issues raised from the
audit.
- (5)
An owner or authorised person in control of a critical information
infrastructure commits an offence and if convicted is liable to a fine not exceeding
two hundred thousand shillings or to term of imprisonment not exceeding five years
or both if the owner or authorized person —
- (a)
fails to file a compliance report and fails to cooperate with an audit
to be performed on a critical information infrastructure in order to
evaluate compliance with the directives issued;
- (b)
fails to provide to the Director such additional information as may be
necessary within a specified period in order to evaluate the report of
an audit in line with the critical infrastructure after he or she has been
requested to do so to the Director;
- (c)
hinders, obstructs or improperly attempts to influence any member of
the Committee, person or entity to monitor, evaluate and report on the
adequacy and effectiveness of an audit;
- (d)
hinders, obstructs or improperly attempts to influence any person
authorized to carry out an audit;
- (e)
fails to co-operate with any person authorized to carry out an audit; or
- (f)
fails to assist or provide technical assistance and support to a person
authorized to carry out an audit.
- (6)
A person shall not perform an audit on a critical information infrastructure
unless he or she —
- (a)
has been authorized in writing by the Director to perform such audit; or
- (b)
is in possession of a certificate of appointment, in the prescribed form,
issued by the Director, which certificate must be submitted to the
owner or person in control of a critical information infrastructure at the
commencement of the audit.
- (1)
A person who causes, whether temporarily or permanently, a computer
system to perform a function, by infringing security measures, with intent to gain
access, and knowing such access is unauthorised, commits an offence and is liable
on conviction, to a fine not exceeding five million shillings or to imprisonment for a
term not exceeding three years, or to both.
- (2)
Access by a person to a computer system is unauthorised if —
- (a)
that person is not entitled to control access of the kind in question to
the program or data; or
- (b)
that person does not have consent from any person who is entitled
to access the computer system through any function to the program
or data.
- (3)
For the purposes of this section, it is immaterial that the unauthorised access
is not directed at —
- (a)
any particular program or data;
- (b)
a program or data of any kind; or
- (c)
a program or data held in any particular computer system.
- (1)
A person who commits an offence under section 14 with
intent to commit a
further offence under any law, or to facilitate the commission of a further offence by
that person or any other person, commits an offence and is liable, on conviction, to
a fine not exceeding ten million shillings or to imprisonment for a term not exceeding
ten years, or to both.
- (2)
For the purposes of subsection (1),
it is immaterial that the further offence
to which this section applies is committed at the same time when the access is
secured or at any other time.
- (1)
A person who intentionally and without authorisation does any act which
causes an unauthorised interference, to a computer system, program or data,
commits an offence and is liable on conviction, to a fine not exceeding ten million
shillings or to imprisonment for a term not exceeding five years, or to both.
- (2)
For the purposes of this section, an interference is unauthorised, if the
person whose act causes the interference —
- (a)
is not entitled to cause that interference;
- (b)
does not have consent to interfere from a person who is so entitled.
- (3)
A person who commits an offence under
subsection (1) which —
- (a)
results in a significant financial loss to any person;
- (b)
threatens national security;
- (c)
causes physical injury or death to any person; or
- (d)
threatens public health or public safety,
is liable, on conviction, to a fine not exceeding twenty million
shillings or to imprisonment for a term not exceeding ten years,
or to both.
- (3)
For the purposes of this section, it is immaterial whether or not the
unauthorised interference is directed at —
- (a)
any particular computer system, program or data;
- (b)
a program or data of any kind; or
- (c)
a program or data held in any particular computer system.
- (4)
For the purposes of this section, it is immaterial whether an unauthorised
modification or any intended effect of it is permanent or temporary.
- (1)
A person who intentionally and without authorisation does any act which
intercepts or causes to be intercepted, directly or indirectly and causes the
transmission of data to or from a computer system over a telecommunication
system commits an offence and is liable, on conviction, to a fine not exceeding ten
million shillings or to imprisonment for a term not exceeding five years, or to both.
- (2)
A person who commits an offence under
subsection (1) which —
- (a)
results in a significant financial loss;
- (b)
threatens national security;
- (c)
causes physical or psychological injury or death to any person; or
- (d)
threatens public health or public safety, is liable, on conviction to a fine
not exceeding twenty million shillings or to imprisonment for a term
not exceeding ten years, or to both.
- (3)
For the purposes of this section, it is immaterial that the unauthorised
interception is not directed at —
- (a)
a telecommunication system;
- (b)
any particular computer system data;
- (c)
a program or data of any kind; or
- (d)
a program or data held in any particular computer system.
- (4)
For the purposes of this section, it is immaterial whether an unauthorised
interception or any intended effect of it is permanent or temporary.
- (1)
A person who knowingly manufactures, adapts, sells, procures for use,
imports, offers to supply, distributes or otherwise makes available a device,
program, computer password, access code or similar data designed or adapted
primarily for the purpose of committing any offence under this
Part, commits an
offence and is liable, on conviction, to a fine not exceeding twenty million shillings
or to imprisonment for a term not exceeding ten years, or to both.
- (2)
A person who knowingly receives, or is in possession of, a program or a
computer password, device, access code, or similar data from any action specified
under subsection (1) and intends that
it be used to commit or assist in commission
of an offence under this Part commits an offence and is liable on conviction, to a
fine not exceeding ten million shillings or to imprisonment for a term not exceeding
five years, or to both.
- (3)
Despite subsections (1) and
(2), the activities described under the
subsections do not constitute an offence if —
- (a)
any act intended for the authorised training, testing or protection of a
computer system; or
- (b)
the use of a program or a computer password, access code, or similar
data is undertaken in compliance of and in accordance with the terms
of a judicial order issued or in exercise of any power under this Act
or any law.
- (4)
For the purposes of subsections (1) and
(2), possession of any program or
a computer password, access code, or similar data includes having —
- (a)
possession of a computer system which contains the program or a
computer password, access code, or similar data;
- (b)
possession of a data storage device in which the program or a
computer password, access code, or similar data is recorded; or
- (c)
control of a program or a computer password, access code, or similar
data that is in the possession of another person.
- (1)
A person who knowingly and without authority discloses any password,
access code or other means of gaining access to any program or data held in
any computer system commits an offence and is liable, on conviction, to a fine not
exceeding five million shillings or to imprisonment for a term not exceeding three
years, or to both.
- (2)
A person who commits the offence under
subsection (1) —
- (a)
for any wrongful gain;
- (b)
for any unlawful purpose; or
- (c)
to occasion any loss,
is liable, on conviction, to a fine not exceeding ten million shillings or to
imprisonment for a term not exceeding five years, or to both.
- (1)
Where a person commits any of the offences specified under section
14, 15,
16 and 17
on a protected computer system, that person shall be liable, on
conviction, to a fine not exceeding twenty five million shillings or imprisonment for
a term not exceeding twenty years or both.
- (2)
For the purposes of this section —
"protected computer system"
means a computer system used directly in
connection with, or necessary for,—
- (a)
the security, defence or international relations of Kenya;
- (b)
the existence or identity of a confidential source of information relating
to the enforcement of a criminal law;
- (c)
the provision of services directly related to communications
infrastructure, banking and financial services, payment and
settlement systems and instruments, public utilities or
public transportation, including government services delivered
electronically;
- (d)
the protection of public safety including systems related to essential
emergency services such as police, civil defence and medical
services;
- (e)
the provision of national registration systems; or
- (f)
such other systems as may be designated relating to the security,
defence or international relations of Kenya, critical information,
communications, business or transport infrastructure and protection
of public safety and public services as may be designated by the
Cabinet Secretary responsible for matters relating to information,
communication and technology.
- (1)
A person who unlawfully and intentionally performs or authorizes or allows
another person to perform a prohibited act envisaged in this Act, in order to —
- (a)
gain access, as provided under section 14,
to critical data, a critical database or a national critical
information infrastructure; or
- (b)
intercept data, as provided under section 17, to,
from or within a
critical database or a national critical information infrastructure, with
the intention to directly or indirectly benefit a foreign state against the
Republic of Kenya,
commits an offence and is liable, on conviction, to imprisonment for a period not
exceeding twenty years or to a fine not exceeding ten million shillings, or to both.
- (2)
A person who commits an offence under
subsection (1) which causes
physical injury to any person is liable, on conviction, to imprisonment for a term not
exceeding twenty years.
- (3)
A person who commits an offence under
subsection (1) which causes the
death of a person is liable, on conviction, to imprisonment for life.
- (4)
A person who unlawfully and intentionally possesses, communicates,
delivers or makes available or receives, data, to, from or within a
critical database or a national critical information infrastructure,
with the intention to directly or indirectly benefit a foreign state
against the Republic of Kenya, commits an offence and is liable on
conviction to imprisonment for a period not exceeding twenty years or
to a fine not exceeding ten million shillings, or to both.
- (5)
A person who unlawfully and intentionally performs or authorizes,
or allows another person to perform a prohibited act as envisaged
under this Act in order to gain access, as provided under
section 14, to or intercept data, as provided
under section 17, which is
in possession of the State and which is exempt information in
accordance with the law relating to access to information, with
the intention to directly or indirectly benefit a foreign state
against the Republic of Kenya , commits an offence and is liable,
on conviction, to a fine not exceeding five million shillings or to
imprisonment for a period not exceeding ten years, or to both.
- (1)
A person who intentionally publishes false, misleading or
fictitious data or misinforms with intent that the data shall
be considered or acted upon as authentic, with or without any
financial gain, commits an offence and shall, on conviction, be
liable to a fine not exceeding five million shillings or to
imprisonment for a term not exceeding two years, or to both.
- (2)
Pursuant to Article 24 of the Constitution, the freedom of expression
under Article 33 of the Constitution shall be limited in respect of
the intentional publication of false, misleading or fictitious data
or misinformation that —
- (a)
is likely to —
- (i)
propagate war; or
- (ii)
incite persons to violence;
- (b)
constitutes hate speech;
- (c)
advocates hatred that —
- (i)
constitutes ethnic incitement, vilification of others or incitement
to cause harm; or
- (ii)
is based on any ground of discrimination specified or
contemplated in Article 27(4) of the Constitution; or
- (d)
negatively affects the rights or reputations of others.
A person who knowingly publishes information that is false in print, broadcast,
data or over a computer system, that is calculated or results in panic, chaos, or
violence among citizens of the Republic, or which is likely to discredit the reputation
of a person commits an offence and shall on conviction, be liable to a fine not
exceeding five million shillings or to imprisonment for a term not exceeding ten
years, or to both.
- (1)
A person who, intentionally —
- (a)
publishes child pornography through a computer system;
- (b)
produces child pornography for the purpose of its publication through
a computer system;
- (c)
downloads, distributes, transmits, disseminates, circulates, delivers,
exhibits, lends for gain, exchanges, barters, sells or offers for sale, lets
on hire or offers to let on hire, offers in another way, or make available
in any way from a telecommunications apparatus pornography; or
- (d)
possesses child pornography in a computer system or on a computer
data storage medium,
commits an offence and is liable, on conviction, to a fine not exceeding twenty
million or to imprisonment for a term not exceeding twenty five years, or both.
- (2)
It is a defence to a charge of an offence under
subsection (1)
that a publication which is proved to be justified as being for
the public good on the ground that such book, pamphlet, paper,
writing, drawing, painting, art, representation or figure is in
the interest of science, literature, learning or other objects of
general concerns.
- (3)
For purposes of this section —
-
"child" means a person under the age of eighteen years;
-
"child pornography" includes data which,
whether visual or audio, depicts —
- (a)
a child engaged in sexually explicit conduct;
- (b)
a person who appears to be a child engaged in sexually explicit
conduct; or
- (c)
realistic images representing a child engaged in sexually explicit
conduct;
-
"publish" includes to —
- (a)
distribute, transmit, disseminate, circulate, deliver, exhibit, lend for
gain, exchange, barter, sell or offer for sale, let on hire or offer to let
on hire, offer in any other way, or make available in any way;
- (b)
having in possession or custody, or under control, for the purpose of
doing an act referred to in
paragraph (a); or
- (c)
print, photograph, copy or make in any other manner whether of the
same or of a different kind or nature for the purpose of doing an act
referred to in
paragraph (a).
- (1)
A person who intentionally inputs, alters, deletes, or
suppresses computer data, resulting in inauthentic data
with the intent that it be considered or acted upon for
legal purposes as if it were authentic, regardless of
whether or not the data is directly readable and
intelligible commits an offence and is liable, on
conviction, to fine not exceeding ten million shillings
or to imprisonment for a term not exceeding five years,
or to both.
- (2)
A person who commits an offence under
subsection (1), dishonestly
or with similar intent —
- (a)
for wrongful gain;
- (b)
for wrongful loss to another person; or
- (c)
for any economic benefit for oneself or for another person,
is liable, on conviction, to a fine not exceeding twenty million shillings or to
imprisonment for a term not exceeding ten years, or to both.
- (1)
A person who, with fraudulent or dishonest intent —
- (a)
unlawfully gains;
- (b)
occasions unlawful loss to another person; or
- (c)
obtains an economic benefit for oneself or for another person, through
any of the means described in
subsection (2),
commits an offence and is liable, on conviction, to a fine not exceeding twenty
million shillings or imprisonment term for a term not exceeding ten years, or to both.
- (2)
For purposes of subsection (1)
the word "means" refers to —
- (a)
an unauthorised access to a computer system, program or data;
- (b)
any input, alteration, modification, deletion, suppression or generation
of any program or data;
- (c)
any interference, hindrance, impairment or obstruction with the
functioning of a computer system;
- (d)
copying, transferring or moving any data or program to any computer
system, data or computer data storage medium other than that in
which it is held or to a different location in any other computer system,
program, data or computer data storage medium in which it is held; or
- (e)
uses any data or program, or has any data or program output from
the computer system in which it is held, by having it displayed in any
manner.
- (1)
A person who, individually or with other persons, wilfully
communicates, either directly or indirectly, with another
person or anyone known to that person, commits an offence,
if they know or ought to know that their conduct —
- (a)
is likely to cause those persons apprehension or fear of violence to
them or damage or loss on that persons' property; or
- (b)
detrimentally affects that person; or
- (c)
is in whole or part, of an indecent or grossly offensive nature and
affects the person.
- (2)
A person who commits an offence under
subsection (1) is
liable, on conviction, to a fine not exceeding twenty
million shillings or to imprisonment for a
term not exceeding ten years, or to both.
- (3)
A person may apply to Court for an order compelling a person
charged with an offence under
subsection (1) to refrain from —
- (a)
engaging or attempting to engage in; or
- (b)
enlisting the help of another person to engage in, any communication
complained of under subsection (1).
- (4)
The Court —
- (a)
may grant an interim order; and
- (b)
shall hear and determine an application under
subsection (4) within
fourteen days.
- (5)
An intermediary may apply for the order under
subsection (4)
on behalf of a complainant under this section.
- (6)
A person may apply for an order under this section
outside court working hours.
- (7)
The Court may order a service provider to provide any subscriber
information in its possession for the purpose of identifying a
person whose conduct is complained of under this
section.
- (8)
A person who contravenes an order made under this
section commits
an offence and is liable, on conviction to a fine not exceeding one
million shillings or to imprisonment for a term not exceeding six
months, or to both.
A person who, intentionally takes or makes use of a name, business name,
trademark, domain name or other word or phrase registered, owned or in use by
another person on the internet or any other computer network, without authority or
right, commits an offence and is liable on conviction to a fine not exceeding two
hundred thousand shillings or imprisonment for a term not exceeding two years
or both.
A person who fraudulently or dishonestly makes use of the electronic signature,
password or any other unique identification feature of any other person commits an
offence and is liable, on conviction, to a fine not exceeding two hundred thousand
shillings or to imprisonment for a term not exceeding three years or both.
A person who creates or operates a website or sends a message through a
computer system with the intention to induce the user of a website or the recipient
of the message to disclose personal information for an unlawful purpose or to
gain unauthorized access to a computer system, commits an offence and is liable
upon conviction to a fine not exceeding three hundred thousand shillings or to
imprisonment for a term not exceeding three years or both.
A person who unlawfully destroys or aborts any electronic mail or processes
through which money or information is being conveyed commits an offence and is
liable on conviction to a fine not exceeding two hundred thousand shillings or to a
term of imprisonment not exceeding seven years or to both.
A person who willfully misdirects electronic messages commits an offence and
is liable on conviction to a fine not exceeding one hundred thousand shillings or to
imprisonment for a term not exceeding two years or to both.
- (1)
A person who accesses or causes to be accessed
a computer or computer system or network for
purposes of carrying out a terrorist act, commits
an offence and shall on conviction, be liable to
a fine not exceeding five million shillings or to
imprisonment for a term not exceeding ten years, or
to both.
- (2)
For the purpose of this section,
"terrorist act" shall
have the same meaning as assigned under the Prevention
of Terrorism Act, 2012 (No. 30 of 2012).
A person who induces any person in charge of electronic devices to deliver
any electronic messages not specifically meant for him commits an offence and
is liable on conviction to a fine not exceeding two hundred thousand shillings or
imprisonment for a term not exceeding two years or to both.
A person who intentionally hides or detains any electronic mail, message,
electronic payment, credit and debit card which was found by the person or
delivered to the person in error and which ought to be delivered to another person,
commits an offence and is liable on conviction a fine not exceeding two hundred
thousand shillings or imprisonment for a term not exceeding two years or to both.
A person who unlawfully destroys or aborts any electronic mail or processes
through which money or information is being conveyed commits an offence and
is liable on conviction to a fine not exceeding two hundred thousand shillings or
imprisonment for a term not exceeding two years, or to both.
A person who transfers, publishes, or disseminates, including making a digital
depiction available for distribution or downloading through a telecommunications
network or though any other means of transferring data to a computer, the intimate
or obscene image of another person commits an offence and is liable, on conviction
to a fine not exceeding two hundred thousand shillings or imprisonment for a term
not exceeding two years, or to both.
- (1)
A person who knowingly and without authority causes any loss of property to
another by altering, erasing, inputting or suppressing any data stored in a
computer, commits an offence and is liable on conviction to a fine not
exceeding two hundred thousand shillings or imprisonment for a term not
exceeding two years, or to both.
- (2)
A person who sends an electronic message which materially misrepresents
any fact upon which reliance by another person is caused to suffer any
damage or loss commits an offence and is liable on conviction to
imprisonment for a fine not exceeding two hundred thousand shillings or
imprisonment for a term not exceeding two years, or to both.
- (3)
A person who with intent to defraud, franks electronic messages,
instructions, subscribes any electronic messages or instructions,
commits an offence and is liable on conviction a fine not exceeding
two hundred thousand shillings or imprisonment for a term not exceeding
two years, or to both.
- (4)
A person who manipulates a computer or other electronic payment device
with the intent to short pay or overpay commits an offence and is liable
on conviction to a fine not exceeding two hundred thousand shillings or
imprisonment for a term not exceeding two years, or to both.
- (5)
A person convicted under subsection (4)
shall forfeit the proprietary interest
in the stolen money or property to the bank, financial institution or the
customer.
A person authorized to use a computer or other electronic devices for
financial transactions including posting of debit and credit transactions, issuance
of electronic instructions as they relate to sending of electronic debit and credit
messages or confirmation of electronic fund transfer, issues false electronic
instructions, commits an offence and is liable, on conviction, a fine not exceeding
two hundred thousand shillings or imprisonment for a term not exceeding two years,
or to both.
- (1)
A person who operates a computer system or a computer network, whether
public or private, shall immediately inform the Committee of any attacks,
intrusions and other disruptions to the functioning of another computer
system or network within twenty four hours of such attack, intrusion or
disruption.
- (2)
A report made under subsection (1)
shall include —
- (a)
information about the breach, including a summary of any information
that the agency knows on how the breach occurred;
- (b)
an estimate of the number of people affected by the breach;
- (c)
an assessment of the risk of harm to the affected individuals; and
- (d)
an explanation of any circumstances that would delay or prevent the
affected persons from being informed of the breach.
- (e)
The Committee may propose the isolation of any computer systems or
network suspected to have been attacked or disrupted pending the resolution of
the issues.
- (f)
A person who contravenes the provisions of
subsection (1) commits an
offence and is liable upon conviction a fine not exceeding two hundred thousand
shillings or imprisonment for a term not exceeding two years, or to both.
- (1)
An employee shall, subject to any contractual agreement between
the employer and the employee, relinquish all codes and access
rights to their employer's computer network or system immediately
upon termination of employment.
- (2)
person who contravenes the provision of this
subsection (1) commits an
offence and shall be, liable on conviction, to a fine not exceeding two
hundred thousand shillings or imprisonment for a term not exceeding two
years, or to both.
- (1)
A person who knowingly and willfully aids or abets the commission of any
offence under this Act commits an offence and is liable, on conviction,
to a fine not exceeding seven million shillings or to imprisonment for
a term not exceeding four years, or to both.
- (2)
A person who knowingly and willfully attempts to commit an offence or does
any act preparatory to or in furtherance of the commission of any offence
under this Act, commits an offence and is liable, on conviction, to a fine
not exceeding seven million shillings or to imprisonment for a term not
exceeding four years, or to both.
- (1)
Where any offence under this Act has been committed by a body corporate –
- (a)
the body corporate is liable, on conviction, to a fine not exceeding fifty
million shillings; and
- (b)
every person who at the time of the commission of the offence was
a principal officer of the body corporate, or anyone acting in a similar
capacity, is also deemed to have committed the offence, unless they
prove the offence was committed without their consent or knowledge
and that they exercised such diligence to prevent the commission
of the offence as they ought to have exercised having regard to
the nature of their functions and to prevailing circumstances, and is
liable, on conviction, to a fine not exceeding five million shillings or
imprisonment for a term not exceeding three years, or to both.
- (2)
If the affairs of the body corporate are managed by its members,
subsection (1)(b)
applies in relation to the acts or defaults of a member in connection with
their management functions, as if the member was a principal officer of the body
corporate or was acting in a similar capacity.
- (1)
A court may order the confiscation or forfeiture of monies, proceeds,
properties and assets purchased or obtained by a person with proceeds derived
from or in the commission of an offence under this Act.
- (2)
The court may, on conviction of a person for any offence under this Act make
an order of restitution of any asset gained from the commission of the offence,
in accordance with the provisions and procedures of the Proceeds of Crime and
AntiMoney Laundering Act, 2009 (No. 9 of 2009).
- (1)
Where the court convicts a person for any offence under this
Part, or for
an offence under any other law committed through the use of a computer
system, the court may make an order for the payment by that person of a
sum to be fixed by the court as compensation to any person for any
resultant loss caused by the commission of the offence for which the
sentence is passed.
- (2)
Any claim by a person for damages sustained by reason of any offence
committed under this Part is deemed to have
been satisfied to the
extent of any amount which they have been paid under an order for
compensation, but the order shall not prejudice any right to a civil
remedy for the recovery of damages beyond the amount of compensation
paid under the order.
- (3)
An order of compensation under this section
is recoverable as a civil debt.
- (1)
A person who commits an offence under any other law through the use of a
computer system commits an offence and shall be liable on conviction to a
penalty similar to the penalty provided under that law.
- (2)
A Court shall, in determining whether to sentence a person convicted of
an offence under this section, consider —
- (a)
the manner in which the use of a computer system enhanced the
impact of the offence;
- (b)
whether the offence resulted in a commercial advantage or financial
gain;
- (c)
the value involved, whether of the consequential loss or damage
caused, or the profit gained from commission of the offence through
the use of a computer system;
- (d)
whether there was a breach of trust or responsibility;
- (e)
the number of victims or persons affected by the offence;
- (f)
the conduct of the accused; and
- (g)
any other matter that the court deems fit to consider.
- (1)
All powers and procedures under this Act are applicable to and may be
exercised with respect to any —
- (a)
criminal offences provided under this Act;
- (b)
other criminal offences committed by means of a computer system
established under any other law; and
- (c)
the collection of evidence in electronic form of a criminal offence under
this Act or any other law.
- (2)
In any proceedings related to any offence, under any law of Kenya, the fact
that evidence has been generated, transmitted or seized from, or identified
in a search of a computer system, shall not of itself prevent that evidence
from being presented, relied upon or admitted.
- (3)
The powers and procedures provided under this Part
are without prejudice to the powers granted under —
- (a)
the National Intelligence Service Act, 2012 (No. 28 of 2012);
- (b)
the National Police Service Act, 2011 (No. 11A of 2011);
- (c)
the Kenya Defence Forces Act, 2012 (No. 25 of 2012); and
- (d)
any other relevant law.
- (1)
Where a police officer or an authorised person has reasonable grounds to
believe that there may be in a specified computer system or part of it, computer
data storage medium, program, data, that —
- (a)
is reasonably required for the purpose of a criminal investigation or
criminal proceedings which may be material as evidence; or
- (b)
has been acquired by a person as a result of the commission of an
offence, the police officer or the authorised person may apply to the
court for issue of a warrant to enter any premises to access, search
and similarly seize such data.
- (2)
A search warrant issued under
subsection (1) shall —
- (a)
identify the police officer or authorised person;
- (b)
direct the police officer or authorised person under
paragraph (a)
to seize the data in question; or
- (c)
direct the police officer or authorised person to –
- (d)
search any person identified in the warrant;
- (e)
enter and search any premises identified in the warrant; or
- (f)
search any person found on or at such premises.
- (3)
A search warrant may be issued on any day and shall be of force until it is
executed or is cancelled by the issuing court.
- (4)
A police officer or an authorised person shall present a copy of the warrant
to a person against whom it is issued.
- (5)
A person who —
- (a)
obstructs the lawful exercise of the powers under this section;
- (b)
compromises the integrity or confidentiality of a computer system,
data, or information accessed or retained under this section; or
- (c)
misuses the powers granted under this section,
commits an offence and is liable on conviction to a fine not exceeding five million
shillings or to a term of imprisonment not exceeding three years or to both.
- (1)
Where a computer system or data has been removed or rendered
inaccessible, following a search or a seizure under
section 48,
the person who made the search shall, at the time of the search
or as soon as practicable after the search —
- (a)
make a list of what has been seized or rendered inaccessible, and
shall specify the date and time of seizure; and
- (b)
provide a copy of the list to the occupier of the premises or the person
in control of the computer system referred to under
paragraph (a).
- (2)
Subject to subsection (3), a police
officer or an authorised person shall, on request, permit a person who —
- (a)
had the custody or control of the computer system;
- (b)
has a right to any data or information seized or secured; or
- (c)
has been acting on behalf of a person under subsection
(1)(a) or
(b),
to access and copy computer data on the system or give the person
a copy of the computer data.
- (3)
The police officer or authorised person may refuse to give access or provide
copies under subsection (2), if they
have reasonable grounds for believing that
giving the access or providing the copies, may —
- (a)
constitute a criminal offence; or
- (b)
prejudice —
- (i)
the investigation in connection with the search that was carried
out;
- (ii)
an ongoing investigation; or
- (iii)
any criminal proceeding that is pending or that may be brought
in relation to any of those investigations.
- (4)
Despite subsection (3), a court may,
on reasonable grounds being disclosed, allow a person who has qualified under
subsection (2) (a) or
(b) —
- (a)
access and copy computer data on the system; or
- (b)
obtain a copy of the computer data.
- (1)
Where a police officer or an authorised person has reasonable grounds to
believe that —
- (a)
specified data stored in a computer system or a computer data storage
medium is in the possession or control of a person in its territory; and
- (b)
specified subscriber information relating to services offered by a
service provider in Kenya are in that service provider's possession
or control and is necessary or desirable for the purposes of the
investigation, the police officer or the authorised person may apply to
court for an order.
- (2)
The Court shall issue an order directing —
- (a)
a specified person to submit specified computer data that is in that
person's possession or control, and is stored in a computer system or
a computer data storage medium; or
- (b)
a specified service provider offering its services in Kenya to submit
subscriber information relating to such services in that service
provider's possession or control.
- (1)
Where a police officer or an authorised person has reasonable grounds to
believe that —
- (a)
any specified traffic data stored in any computer system or computer
data storage medium or by means of a computer system is reasonably
required for the purposes of a criminal investigation; and
- (b)
there is a risk or vulnerability that the traffic data may be modified, lost,
destroyed or rendered inaccessible, the police officer or an authorised
person shall serve a notice on the person who is in possession or
control of the computer system, requiring the person to —
- (i)
undertake expeditious preservation of such available traffic
data regardless of whether one or more service providers were
involved in the transmission of that communication; or
- (ii)
disclose sufficient traffic data concerning any communication
in order to identify the service providers and the path through
which communication was transmitted.
- (2)
The data specified in the notice shall be preserved and its integrity shall be
maintained for a period not exceeding thirty days.
- (3)
The period of preservation and maintenance of integrity may be extended for
a period exceeding thirty days if, on an application by the police officer or
authorised person, the court is satisfied that —
- (a)
an extension of preservation is reasonably required for the purposes
of an investigation or prosecution;
- (b)
there is a risk or vulnerability that the traffic data may be modified,
lost, destroyed or rendered inaccessible; and
- (c)
the cost of the preservation is not overly burdensome on the person
in control of the computer system.
- (4)
The person in possession or control of the computer system shall be
responsible to preserve the data specified —
- (a)
for the period of notice for preservation and maintenance of integrity
or for any extension thereof permitted by the court; and
- (b)
for the period of the preservation to keep confidential any preservation
ordered under this section.
- (5)
Where the person in possession or control of the computer system is a
service provider, the service provider shall be required to —
- (a)
respond expeditiously to a request for assistance, whether to facilitate
requests for police assistance, or mutual assistance requests; and
- (b)
disclose as soon as practicable, a sufficient amount of the non-content
data to enable a police officer or an authorised person to identify any
other telecommunications providers involved in the transmission of
the communication.
- (6)
The powers of the police officer or an authorised person under
subsection (1) shall
apply whether there is one or more service providers involved in the
transmission of communication which is subject to exercise of powers under this
section.
- (1)
Where a police officer or an authorised person has reasonable grounds to
believe that traffic data associated with specified communications and related to
the person under investigation is required for the purposes of a specific criminal
investigation, the police officer or authorised person may apply to the court for an
order to —
- (a)
permit the police officer or authorised person to collect or record
through the application of technical means traffic data, in real-time;
- (b)
compel a service provider, within its existing technical capability —
- (i)
to collect or record through application of technical means traffic
data in real time; or
- (ii)
to cooperate and assist a police officer or an authorised
person in the collection or recording of traffic data, in real-time,
associated with specified communications in its jurisdiction
transmitted by means of a computer system.
- (2)
In making an application under subsection (1),
the police officer or an authorised person shall —
- (a)
state the grounds they believe the traffic data sought is available with
the person in control of the computer system;
- (b)
identify and explain, the type of traffic data suspected to be found on
such computer system;
- (c)
identify and explain the subscribers, users or unique identifier the
subject of an investigation or prosecution suspected as may be found
on such computer system;
- (d)
identify and explain the offences identified in respect of which the
warrant is sought; and
- (e)
explain the measures to be taken to prepare and ensure that the traffic
data shall be sought —
- (i)
while maintaining the privacy of other users, customers and
third parties; and
- (ii)
without the disclosure of data to any party not part of the
investigation.
- (3)
Where the court is satisfied with the explanations provided under
subsection (2), the court
shall issue the order provided for under
subsection (1).
- (4)
For purposes of subsection (1),
real-time collection or recording of traffic data shall be ordered for
a period not exceeding six months.
- (5)
The court may authorize an extension of time under
subsection (4),
if it is satisfied that —
- (a)
such extension of real-time collection or recording of traffic data
is reasonably required for the purposes of an investigation or
prosecution;
- (b)
the extent of real-time collection or recording of traffic data is
commensurate, proportionate and necessary for the purposes of
investigation or prosecution;
- (c)
despite prior authorisation for real-time collection or recording of traffic
data, additional real-time collection or recording of traffic data is
necessary and needed to achieve the purpose for which the warrant
is to be issued;
- (d)
measures taken to prepare and ensure that the real time collection or
recording of traffic data is carried out while maintaining the privacy of
other users, customers and third parties and without the disclosure of
information and data of any party not part of the investigation;
- (e)
the investigation may be frustrated or seriously prejudiced unless the
real-time collection or recording of traffic data is permitted; and
- (f)
the cost of such preservation is not overly burdensome upon the
person in control of the computer system.
- (6)
A court may, in addition to the requirement specified under
subsection (3)
require the service provider to keep confidential the order and execution of any
power provided under this section.
- (7)
A service provider who fails to comply with an order under this
section
commits an offence and is liable on conviction —
- (a)
where the service provider is a corporation, to a fine not exceeding
ten million shillings; or
- (b)
in case of a principal officer of the service provider, to a fine not
exceeding five million shillings or to imprisonment for a term not
exceeding three years, or to both.
- (1)
Where a police officer or an authorised person has reasonable grounds to
believe that the content of any specifically identified electronic communications is
required for the purposes of a specific investigation in respect of an offence, the
police officer or authorised person may apply to the court for an order to —
- (a)
permit the police officer or authorised person to collect or record
through the application of technical means;
- (b)
compel a service provider, within its existing technical capability —
- (i)
to collect or record through the application of technical means;
or
- (ii)
to co-operate and assist the competent authorities in the
collection or recording of, content data, in real-time, of specified
communications within the jurisdiction transmitted by means of
a computer system.
- (2)
In making an application under
subsection (1),
the police officer or an authorised person shall —
- (a)
state the reasons he believes the content data being sought is in
possession of the person in control of the computer system;
- (b)
identify and state the type of content data suspected to be found on
such computer system;
- (c)
identify and state the offence in respect of which the warrant is sought;
- (d)
state if they have authority to seek real-time collection or recording on
more than one occasion is needed, and shall specify the additional
number of disclosures needed to achieve the purpose for which the
warrant is to be issued;
- (e)
explain measures to be taken to prepare and ensure that the real-time
collection or recording is carried out —
- (i)
while maintaining the privacy of other users, customers and
third parties; and
- (ii)
without the disclosure of information and data of any party not
part of the investigation;
- (f)
state how the investigation may be frustrated or seriously prejudiced
unless the real time collection or recording is permitted; and
- (g)
state the manner in which they shall achieve the objective of the
warrant, real time collection or recording by the person in control of
the computer system where necessary.
- (3)
Where the court is satisfied with the grounds provided under
subsection (2),
the court shall issue the order applied for under
subsection (1).
- (4)
For purposes of
subsection (1),
the real-time collection or recording of
content data shall not be ordered for a period that exceeds the period that is
necessary for the collection thereof and in any event not for more than a period
of nine months.
- (5)
The period of real-time collection or recording of content data may be
extended for such period as the court may consider necessary where the court is
satisfied that —
- (a)
such extension of real-time collection or recording of content data is
required for the purposes of an investigation or prosecution;
- (b)
the extent of real-time collection or recording of content data is
proportionate and necessary for the purposes of investigation or
prosecution;
- (c)
despite prior authorisation for real-time collection or recording of
content data, further real-time collection or recording of content data
is necessary to achieve the purpose for which the warrant is to be
issued;
- (d)
measures shall be taken to prepare and ensure that the real-time
collection or recording of content data is carried out while maintaining
the privacy of other users, customers and third parties and without
the disclosure of information and data of any party not part of the
investigation;
- (e)
the investigation may be frustrated or seriously prejudiced unless the
real-time collection or recording of content data is permitted; and
the cost of such real-time recording and collection is not overly
burdensome upon the person in control of the computer system.
- (6)
The court may also require the service provider to keep confidential the
order and execution of any power provided for under this section.
- (7)
A service provider who fails to comply with an order under this
section
commits an offence and is liable, on conviction —
- (a)
where the service provider is a corporation, to a fine not exceeding
ten million shillings;
- (b)
in case of an officer of the service provider, to a fine not exceeding
five million shillings or to imprisonment for a term not exceeding three
years, or to both.
- (1)
A person who obstructs the lawful exercise of the powers under this
Part,
including destruction of data, or fails to comply with the requirements of this
Part is
liable, on conviction, to a fine not exceeding five million shillings or to imprisonment
for a term not exceeding three years, or to both.
- (2)
A police officer or an authorised person who misuses the exercise of
powers under this Part commits an offence
and is liable, on conviction, to a fine not
exceeding five million shillings or to imprisonment for a term not exceeding three
years, or to both.
Any person aggrieved by any decision or order of the Court made under this
Part, may appeal to the High Court or Court of
Appeal as the case may be within
thirty days from the date of the decision or order.
- (1)
A service provider shall not be subject to any civil or criminal liability, unless
it is established that the service provider had actual notice, actual knowledge, or
willful and malicious intent, and not merely through omission or failure to act, had
thereby facilitated, aided or abetted the use by any person of any computer system
controlled or managed by a service provider in connection with a contravention of
this Act or any other written law.
- (2)
A service provider shall not be liable under this Act or any other law for
maintaining and making available the provision of their service.
- (4)
A service provider shall not be liable under this Act or any other law for the
disclosure of any data or other information that the service provider discloses only
to the extent required under this Act or in compliance with the exercise of powers
under this Part.
- (1)
This Part shall apply in addition to the
Mutual Legal Assistance Act, 2011
(No. 36 of 2011) and the Extradition (Contiguous and Foreign Countries) Act (Cap.
76).
- (2)
The Central Authority may make a request for mutual legal assistance in
any criminal matter to a requested State for purposes of —
- (a)
undertaking investigations or proceedings concerning offences
related to computer systems, electronic communications or data;
- (b)
collecting evidence of an offence in electronic form; or
- (c)
obtaining expeditious preservation and disclosure of traffic data,
real-time collection of traffic data associated with specified
communications or interception of content data or any other means,
power, function or provisions under this Act.
- (3)
A requesting State may make a request for mutual legal assistance to the
Central Authority in any criminal matter, for the purposes provided in
subsection (2).
- (4)
Where a request has been received under
subsection (3), the Central
Authority may, subject to the provisions of the Mutual Legal Assistance Act, 2011
(No. 36 of 2011), the Extradition (Contiguous and Foreign Countries) Act (Cap. 76),
this Act and any other relevant law —
- (a)
grant the legal assistance requested; or
- (b)
refuse to grant the legal assistance requested.
- (5)
The Central Authority may require a requested State to —
- (a)
keep the contents, any information and material provided in a
confidential manner;
- (b)
only use the contents, information and material provided for the
purpose of the criminal matter specified in the request; and
- (c)
use it subject to other specified conditions.
- (1)
The Central Authority may, subject to this Act and other relevant law,
without prior request, forward to a foreign State information obtained within the
framework of its own investigations when it considers that the disclosure of such
information might assist the foreign State in initiating or carrying out investigations
or proceedings concerning criminal offences or might lead to a request for cooperation by
the foreign State under this Act.
- (2)
Prior to providing the information under
subsection (1), the Central Authority
may request that such information be kept confidential or only subject to other
specified conditions.
- (3)
Where a foreign State cannot comply with the specified conditions specified
under subsection (2), the State
shall notify the Central Authority as soon as practicable.
- (4)
Upon receipt of a notice under
subsection (3), the Central Authority may
determine whether to provide such information or not.
- (5)
Where the foreign State accepts the information subject to the conditions
specified by the Central Authority, that State shall be bound by them.
- (1)
Subject to section 57, a requesting State which has the
intention to make
a request for mutual legal assistance for the search or similar access, seizure or
similar securing or the disclosure of data, may request the Central Authority to
obtain the expeditious preservation of data stored by means of a computer system,
located within the territory of Kenya.
- (2)
When making a request under subsection (1),
the requesting State shall specify —
- (a)
the authority seeking the preservation;
- (b)
the offence that is the subject of a criminal investigation or
proceedings and a brief summary of the related facts;
- (c)
the stored computer data to be preserved and its connection to the
offence;
- (d)
any available information identifying the custodian of the stored
computer data or the location of the computer system;
- (e)
the necessity of the preservation; and
- (f)
the intention to submit a request for mutual assistance for the search
or similar access, seizure or similar securing or the disclosure of the
stored computer data.
- (3)
Upon receiving the request under this section, the Central Authority shall
take the appropriate measures to preserve the specified data in accordance with
the procedures and powers provided under this Act and any other relevant law.
- (4)
A preservation of stored computer data effected under this section, shall
be for a period of not less one hundred and twenty days, in order to enable the
requesting State to submit a request for the search or access, seizure or securing,
or the disclosure of the data.
- (5)
Upon receipt for a request under this section, the data shall continue to be
preserved pending the final decision being made with regard to that request.
Where during the course of executing a request under
section 57
with respect to a specified communication, the investigating agency discovers that a service
provider in another State was involved in the transmission of the communication,
the Central Authority shall expeditiously disclose to the requesting State a sufficient
amount of traffic data to identify that service provider and the path through which
the communication was transmitted.
- (1)
Subject to section 57, a requesting State may request
the Central Authority
to search or similarly access, seize or similarly secure, and disclose data stored by
means of a computer system located within the territory of Kenya, including data
that has been preserved in accordance with section 60.
- (2)
When making a request under
subsection (1), the requesting State shall —
- (a)
give the name of the authority conducting the investigation or
proceedings to which the request relates;
- (b)
give a description of the nature of the criminal matter and a statement
setting-out a summary of the relevant facts and laws;
- (c)
give a description of the purpose of the request and of the nature of
the assistance being sought;
- (d)
in the case of a request to restrain or confiscate assets believed
on reasonable grounds to be located in the requested State, give
details of the offence in question, particulars of the investigation
or proceeding commenced in respect of the offence, and be
accompanied by a copy of any relevant restraining or confiscation
order;
- (e)
give details of any procedure that the requesting State wishes to
be followed by the requested State in giving effect to the request,
particularly in the case of a request to take evidence;
- (f)
include a statement setting out any wishes of the requesting State
concerning any confidentiality relating to the request and the reasons
for those wishes;
- (g)
give details of the period within which the requesting State wishes the
request to be complied with;
- (h)
where applicable, give details of the property, computer, computer
system or electronic device to be traced, restrained, seized or
confiscated, and of the grounds for believing that the property is
believed to be in the requested State;
- (i)
give details of the stored computer data, data or program to be seized
and its relationship to the offence;
- (j)
give any available information identifying the custodian of the stored
computer data or the location of the computer, computer system or
electronic device;
- (k)
include an agreement on the question of the payment of the damages
or costs of fulfilling the request; and
- (l)
give any other information that may assist in giving effect to the
request.
- (3)
Upon receiving the request under this section, the Central Authority shall
take all appropriate measures to obtain necessary authorisation including any
warrants to execute upon the request in accordance with the procedures and
powers provided under this Act and any other relevant law.
- (4)
Where the Central Authority obtains the necessary authorisation in
accordance with subsection (3),
including any warrants to execute the request, the
Central Authority may seek the support and cooperation of the requesting State
during such search and seizure.
- (5)
Upon conducting the search and seizure request, the Central Authority
shall, subject to section 59, provide the
results of the search and seizure as well
as electronic or physical evidence seized to the requesting State.
A police officer or authorised person may, subject to any applicable provisions
of this Act —
- (a)
access publicly available stored computer data, regardless of where
the data is located geographically; or
- (b)
access or receive, through a computer system in Kenya, stored
computer data located in another territory, if such police officer or
authorised person obtains the lawful and voluntary consent of the
person who has the lawful authority to disclose the data through that
computer system.
- (1)
Subject to section 57, a requesting State may request
the Central Authority
to provide assistance in real-time collection of traffic data associated with specified
communications in Kenya transmitted by means of a computer system.
- (2)
When making a request under
subsection (1), the requesting State shall
specify —
- (a)
the authority seeking the use of powers under this
section;
- (b)
the offence that is the subject of a criminal investigation or
proceedings and a brief summary of the related facts;
- (c)
the name of the authority with access to the relevant traffic data;
- (d)
the location at which the traffic data may be held;
- (e)
the intended purpose for the required traffic data;
- (f)
sufficient information to identify the traffic data;
- (g)
any further details relevant to the traffic data;
- (h)
the necessity for use of powers under this
section; and
- (i)
the terms for the use and disclosure of the traffic data to third parties.
- (3)
Upon receiving the request under this section, the
Central Authority shall
take all appropriate measures to obtain necessary authorisation including any
warrants to execute upon the request in accordance with the procedures and
powers provided under this Act and any other relevant law.
- (4)
Where the Central Authority obtains the necessary authorisation including
any warrants to execute upon the request, the Central Authority may seek the
support and cooperation of the requesting State during the search and seizure.
- (5)
Upon conducting the measures under this section the
Central Authority
shall, subject to section 57, provide the results
of such measures as well
as realtime collection of traffic data associated with specified communications
to the requesting State.
- (1)
Subject to section 57, a requesting State may request
the Central Authority
to provide assistance in the real-time collection or recording of content data of
specified communications in the territory of Kenya transmitted by means of a
computer system.
- (2)
When making a request under subsection (1),
a requesting State shall specify —
- (a)
the authority seeking the use of powers under this
section;
- (b)
the offence that is the subject of a criminal investigation or
proceedings and a brief summary of the related facts;
- (c)
the name of the authority with access to the relevant communication;
- (d)
the location at which or nature of the communication;
- (e)
the intended purpose for the required communication;
sufficient information to identify the communications;
details of the data of the relevant interception;
- (f)
the recipient of the communication;
- (g)
the intended duration for the use of the communication;
- (i)
the necessity for use of powers under this
section; and
- (j)
the terms for the use and disclosure of the communication to third
parties.
- (3)
Upon receiving the request under this
section, the Central Authority shall,
take all appropriate measures to obtain necessary authorisation including any
warrants to execute upon the request in accordance with the procedures and
powers provided under this Act and any other relevant law.
- (4)
Where the Central Authority obtains the necessary authorisation, including
any warrants to execute upon the request, the Central Authority may seek the
support and cooperation of the requesting State during the search and seizure.
- (5)
Upon conducting the measures under this section the Central Authority
shall subject to section 57, provide the results
of such measures as
well as realtime collection or recording of content data of specified
communications to the requesting State.
- (1)
The Central Authority shall ensure that the investigation agency responsible
for investigating cybercrime, shall designate a point of contact available on a
twenty-four hour, seven-day-a-week basis, in order to ensure the provision of
immediate assistance for the purpose of investigations or proceedings concerning
criminal offences related to computer systems and data, or for the collection of
evidence in electronic form of a criminal offence, including carrying out the following
measures —
- (a)
the provision of technical advice;
- (b)
the preservation of data pursuant to
sections 59 and
60;
- (c)
the collection of evidence, the provision of legal information, and
locating of suspects, within expeditious timelines to be defined by
regulations under this Act.
- (2)
The point of contact shall be resourced with and possess the requisite
capacity to securely and efficiently carry out communications with other points of
contact in other territories, on an expedited basis.
- (3)
The point of contact shall have the authority and be empowered to
coordinate and enable access to international mutual assistance under this Act.
- (1)
Any court of competent jurisdiction shall try any offence under this Act where
the act or omission constituting the offence is committed in Kenya.
- (2)
For the purposes of subsection (1),
an act or omission committed outside
Kenya which would if committed in Kenya constitute an offence under this Act is
deemed to have been committed in Kenya if —
- (a)
the person committing the act or omission is –
- (i)
a citizen of Kenya; or
- (ii)
ordinarily resident in Kenya; and
- (b)
the act or omission is committed –
- (i)
against a citizen of Kenya;
- (ii)
against property belonging to the Government of Kenya outside
Kenya; or
- (iii)
to compel the Government of Kenya to do or refrain from doing
any act; or
- (c)
the person who commits the act or omission is, after its commission
or omission, present in Kenya.
The court before which a person is convicted of any offence may, in addition to
any other penalty imposed, order the forfeiture of any apparatus, device or thing
to the Authority which is the subject matter of the offence or is used in connection
with the commission of the offence.
Whenever there is a conflict between this Act and any other law regarding
cybercrimes, the provisions of this Act shall supersede any such other law.
The laws specified in the first column of the Schedule are amended, in the
provisions specified in the second column thereof, in the manner respectively
specified in the third column.
- (1)
The Cabinet Secretary may make regulations generally for the better
carrying into effect of any provisions under this Act.
- (2)
Without prejudice to the foregoing, regulations made under this section may
provide for —
- (a)
designation of computer systems, networks, programs, data as
national critical information infrastructure;
- (b)
protection, preservation and management of critical information
infrastructure;
- (c)
access to, transfer and control of data in any critical information
infrastructure;
- (d)
storage and archiving of critical data or information;
- (e)
audit and inspection of national critical information infrastructure;
- (f)
recovery plans in the event of disaster, breach or loss of national
- (g)
critical information infrastructure or any part of it;
- (h)
standard operating procedures for the conduct, search, seizure and
- (i)
collection of electronic evidence; and
- (j)
mutual legal assistance.
- (3)
For the purposes of Article 94 (6) of the Constitution—
- (a)
the purpose and objective of delegation under this section is to enable
the Cabinet Secretary to make regulations to provide for the better
carrying into effect of the provisions of this Act and to enable the
Authority to discharge its functions more effectively;
- (b)
the authority of the Cabinet Secretary to make regulations under this
Act will be limited to bringing into effect the provisions of this Act and
to fulfil the objectives specified under this section;
- (c)
the principles and standards applicable to the regulations made
under this section are those set out in the Interpretation and General
Provisions Act (Cap. 2) and the Statutory Instruments Act, 2013 (No.
23 of 2013).