DLA Piper Data Protection Laws of The World Kenya
DLA Piper Data Protection Laws of The World Kenya
Data Protection
Laws of the World
Introduction
                                     Welcome to the 2025 edition of DLA Piper's Data Protection Laws of the
                                     World Handbook. Since the launch of our first edition in 2012, this
                                     comprehensive guide has been a trusted resource for navigating the
                                     complex landscape of privacy and data protection laws worldwide. Now in
                                     its fourteenth edition, the Handbook has grown to provide an extensive
                                     overview of key privacy and data protection regulations across more than
                                     160 jurisdictions. In 2025, the global landscape of data protection and
                                     privacy law continues to evolve at an unprecedented pace. With new
                                     legislation emerging in jurisdictions around the world, businesses face a
                                     growing need to stay informed and agile in adapting to these changes.
                                     This year promises to bring new developments and challenges, making the
                                     Handbook an invaluable tool for staying ahead in this ever-changing field.
                                     Europe
                                     Established data protection laws in Europe continue to evolve through
                                     active regulatory guidance and enforcement action. In the United
                                     Kingdom, the UK government has proposed reforms to data protection
                                     and e-privacy laws through the new Data (Use and Access) Bill (“DUAB“).
                                     The DUAB follows the previous government’s unsuccessful attempts to
                                     reform these laws post-Brexit, which led to the abandonment of the Data
                                     Protection and Digital Information (No.2) Bill (“DPDI Bill“), in the run-up to
                                     the general election. Although the DUAB comes with some bold
                                     statements from the government that it will “unlock the power of data to
                                     grow the economy and improve people’s lives“, the proposals represent
                                     incremental reform, rather than radical change.
                                     United States
                                     In the United States, legislation on the federal and in particular state level
                                     continues to evolve at a rapid pace. Currently, the US has fourteen states
                                     with comprehensive data privacy laws in effect and six state laws will take
                                     effect in 2025 and early 2026. Additionally, at the federal level, the new
                                     administration has signaled a shift in enforcement priorities concerning
                                     data privacy. Notably, there is a renewed focus on the regulation of
                                     artificial intelligence (AI), with an emphasis on steering away from
                                     regulation and promoting innovation. This includes the revocation of
                                     previous executive orders related to AI and the implementation of new
                                     directives to guide AI development and use.
Disclaimer
                                     This handbook is not a substitute for legal advice. Nor does it cover all
                                     aspects of the legal regimes surveyed, such as specific sectorial
                                     requirements. Enforcement climates and legal requirements in this area
                                     continue to evolve. Most fundamentally, knowing high-level principles of
                                     law is just one of the components required to shape and to implement a
                                     successful global data protection compliance program.
Data protection laws            The Data Protection Act, 2019 (the “Act”) came into force on 25th November, 2019 and
                                is now the primary statute on data protection in Kenya. It gives effect to Article 31 c)
                                and d) of the Constitution of Kenya, 2010 (right to privacy).
                                In October 2020, by virtue of the powers conferred to him under the Act, the Cabinet
                                Secretary for Information, Communication, Technology, Innovation and Youth Affairs
                                gazetted the Data Protection (Civil Registration) Regulations, 2020 (the “Regulations”).
                                The Regulations apply to civil registries involved in processing personal data for
                                registrations such as births, deaths, adoptions, persons, passports and marriages.
                                Guidance Note for Digital Credit Providers – sets out the compliance requirements
                                that digital credit providers (DCPs) must implement while processing personal data
                                in line with the administration of digital credit and in compliance with the DPA.
                              The ODPC has also published a Complaints Management Manual which sets out the
                              complaints management handling procedure by the ODPC; and the Alternative
                              Disputes Resolution Framework which provides guidance to stakeholders who wish to
                              engage in Alternative Dispute Resolution (ADR) to resolve their disputes arising under
                              the Act.
                                 Data Protection (Conduct of Compliance Audit) Regulations, 2024 – sets out the
                                 procedure for the conduct of audits by the ODPC as well as the procedure for
                                 entities that want to be accredited by the ODPC to carry out data protection audits;
                                 and
                                 Data Sharing Code – outlines the requirements that data controllers and
                                 processors are required to observe prior to sharing personal data, as well as the
                                 measures to put in place to ensure the protection of the data subject.
                              Sensitive personal data is defined as data revealing the natural person's race, health
                              status, ethnic social origin, conscience, belief, genetic data, biometric data, property
                              details, marital status, family details including names of the person's children, parents,
                              spouse or spouses, sex or the sexual orientation of the data subject.
authority                     The Act established the ODPC whose mandate includes overseeing the
                              implementation and enforcement of the provisions of the Act. The ODPC is also tasked
                              with the maintenance of the register of data controllers and processors, receiving and
                              investigation of complaints under the Act and carrying out inspections of public and
                              private entities to evaluate the processing of personal data.
                              Data processors and data controllers are required to be registered with the ODPC. The
                              ODPC, however, has discretion to prescribe the thresholds for mandatory registration
                              based on:
The certificate of registration issued is valid for 24 months from the date of issuance.
                              A data controller or data processor with an annual turnover or revenue of below Kenya
                              Shillings Five Million (approx. USD 40,000) and has less than 10 employees is exempt
                              from mandatory registration.
                              Data controllers and data processors who process data for the following purposes
                              regardless of their annual turnover or revenue or number of employees have to be
                              registered under the Registration Regulations:
Gambling;
                              The Act makes provisions for the designation of Data Protection Officers (DPOs) but
                              this obligation is not mandatory.
                              DPOs can be members of staff and may perform other roles in addition to their roles.
                              A group of entities can share a DPO and the contact details of the ODPO must be
                              published on the organisation’s website and communicated to the DPC.
                                Co-operating with the DPC and any other authority on matters relating to data
                                protection.
DPO’s under the Regulations also have the following additional roles:
                                Monitoring and evaluating the efficiency of the data systems in the organization;
                                and
Keeping written records of the processing activities of the civil registration entity.
                              The processing of personal data must comply with the principles prescribed in this
                              part. It must be:
processed lawfully, fairly and in a transparent manner in relation to any data subject;
                                collected for explicit, specified and legitimate purposes and not further processed
                                in a manner incompatible with those purposes;
                                accurate and, where necessary, kept up to date, with every reasonable step being
                                taken to ensure that any inaccurate personal data is erased or rectified without
                                delay;
                                kept in a form which identifies the data subjects for no longer than is necessary for
                                the purposes which it was collected; and
                                not transferred outside Kenya, unless there is proof of adequate data protection
                                safeguards or consent from the data subject.
                              The Act recommends personal data to be collected and processed lawfully. The lawful
                              reasons for processing include:
for compliance with any legal obligation to which the controller is subject;
                                        in order to protect the vital interests of the data subject or another natural
                                        person;
                                        for the performance of a task carried out in the public interest or in the
                                        exercise of
                                        for the exercise, by any person in the public interest, of any other functions
                                        of a public nature;
                                        for the legitimate interests pursued by the data controller or data processor
                                        by a third party to whom the data is disclosed, except if the processing is
                                        unwarranted in any particular case having regard to the harm and prejudice
                                        to the rights and freedoms or legitimate interests of the data subject; or
                              Under the Regulations civil registration entities must ensure that they collect only
                              personal data permitted by the data subject and that the appropriate steps are taken
                              to ensure the quality and security of the personal data.
                              Where the registries intend to use such data for another purpose, they must either
                              ensure that the purpose is compatible with the initial purpose or, where that is not the
                              case, seek fresh consent.
                              The transfer of personal data outside Kenya is highly regulated under the Act. Prior to
                              any transfer the data controller or data processor must provide proof to the DPC on
                              the appropriate safeguards with respect to the security and protection of the personal
                              data including jurisdictions with similar data protection laws.
                              The consent of the data subject is required for the transfer of sensitive personal data
                              out of Kenya.
                              The General Regulations elaborate in more detail transfer of personal data outside
                              Kenya. They provide for 4 legal bases for the transfer of personal data out of the
                              country which include:
                                  d. consent of the data subject on the condition they have consented to the
                                     proposed transfer and have been informed of the possible risks of transfer.
                              Civil registration registries are mandated to formulate written data security procedures
                              which must include the following:
                                 Description of the means intended to protect the database systems and the
                                 manner of their operation for this purpose;
                                The risks to which the data in the database is exposed in the course of the civil
                                registration entity's ongoing activities;
                                The manner of dealing with information security incidents, according to the severity
                                of the incident;
                                     assessing the risks against the security of personal data and putting in
                                     place measures to counter identified risks;
                              As far as technical measures are concerned, the General Regulations require the use
                              of hashing and cryptography to limit the possibility of repurposing personal data. They
                              also require that the contract between a data controller and a data processor to
                              include a clause on security measures subjecting the data processor to appropriate
                              technical and organizational measures in relation to keeping personal data secure.
                              The General Regulations provide for specific obligations to the data controller and data
                              processor under the data protection principle of integrity, confidentiality and
                              availability. These include:
b.
                              Yes. Please see above analysis under “Breach Notification”. The ODPC has also
                              launched a portal where data breach notifications should be made.
Enforcement The DPC has the duty to ensure the implementation and enforcement of the Act.
                              The Compliance & Enforcement Regulations set out the complaints handling
                              procedures and enforcement mechanisms in the event of non-compliance with the
                              provisions of the Act. The Regulations provide for the process and procedure of
                              lodging of complaints with the DPC.
                              The DPC is also required to maintain an up-to-date register of complaints stating the
                              particulars of the complainant and complaint.
                              In instances where the DPC is satisfied that any person has violated the provisions of
                              the Act, he has the power to issue penalty notices for up to a maximum of Kenya
                              Shillings Five Million (approximately USD 50,000) or 1% of an undertaking’s annual
                              turnover the preceding year, whichever is lower.
                              In addition, any act which constitutes an offence under the Act where a penalty is not
                              provided attracts a fine of up to Kenya Shillings Three Million (approx. USD 30,000) or
                              imprisonment for up to 10 years or both a fine and imprisonment.
                              The use of personal data for commercial purposes is prohibited unless the person
                              undertaking this processing:
                                is authorized to do so under any written law and the data subject has been
                                informed of such use when collecting the data from the data subject.
                              The General Regulations states that a data controller or data processor is considered
                              to be using personal data for commercial purposes if the personal data of a data
                              subject is used to advance commercial or economic interests, including inducing
                              another person to buy, rent, lease, join, subscribe to, provide or exchange products,
                              property, information or services, or enabling or effecting, directly or indirectly, a
                              commercial transaction.
                              The General Regulations further include circumstances where the personal data is
                              used for direct marketing through:
                              Personal data other than sensitive personal data is only permitted to be used for direct
                              marketing where:
                                the data controller or data processor has collected the personal data directly from
                                the data subject;
                                a data subject is notified that direct marketing is one of the purposes for which
                                personal data is collected;
                                the data subject has consented to the use or disclosure of the personal data for the
                                purpose of direct marketing;
                                the data controller or data processor provides a simplified opt-out mechanism for
                                the data subject to request not to receive direct marketing communications; or
 Online privacy                Kenyan law does not regulate online privacy. The Regulations have not prescribed any
                               requirements or guidelines in regulating online privacy.
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