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Kenya Data Protection Act No. 24

THE DATA PROTECTION ACT

No. 24 of 2019

Date of Assent: 8th November, 2019
Date of Commencement: 25th November, 2019
ARRANGEMENT OF SECTIONS
Sections

PART I—PRELIMINARY

1. —Short title.
2. —Interpretation.
3. —Object and purpose of this Act.
4. —Application.
PART II—ESTABLISHMENT OF THE OFFICE OF
THE DATA PROTECTION COMMISSIONER
5. —Establishment of the Office.
6. —Appointment of the Data Commissioner.
7. —Qualifications of the Data Commissioner.
8. —Functions of the Data Commissioner.
9. —Powers of the Office.
10. —Delegation by the Data Commissioner.
11. —Vacancy in the Office of the Data Commissioner.
12. —Removal of the Data Commissioner from office.
13. —Staff of the Office.
14. —Remuneration of the Data Commissioner and staff.
15. —Oath of Office.
16. —Confidentiality agreements.
17. —Protection from personal liability.
PART III—REGISTRATION OF DATA
CONTROLLERS AND DATA PROCESSORS
18. —Registration of data controllers and data
Processors.
19. —Application for registration.
20. —Duration of the registration certificate.
21. —Register of data controllers and data processors.

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No. 24 Data Protection 2019
22. —Cancellation or variation of the certificate.
23. —Compliance and audit.
24. —Designation of the Data Protection Officer.
PART IV—PRINCIPLES AND OBLIGATIONS OF
PERSONAL DATA PROTECTION
25. —Principles of personal data protection.
26. —Rights of a data subject.
27. —Exercise of rights by data subject.
28. —Collection of personal data.
29. —Duty to notify.
30. —Lawful processing of personal data.
31. —Data protection impact assessment.
32. —Conditions for consent.
33. —Processing of personal data relating to a child.
34. —Restriction on processing.
35. —Automated individual decision making.
36. —Objecting to processing.
37. —processing for direct marketing.
38. —Right to data portability.
39. —Limitation to retention of personal data.
40. —Right of rectification and erasure.
41. —Data protection by design or default.
42. —Particulars of determining organisational
measures.
43. —Notification and communication of breach.
PART V—GROUNDS FOR PROCESSING OF
SENSITIVE PERSONAL DATA
44. —Processing of sensitive personal data.
45. —Permitted grounds for processing sensitive
personal data.
46. —Personal data relating to health.
47. —Further categories of sensitive personal data.

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PART VI—TRANSFER OF PERSONAL DATA

OUTSIDE KENYA
48. —Conditions for transfer out of Kenya.
49. — Safeguards prior to transfer of personal data out of
Kenya.
50. —Processing through a data server or centre in
Kenya.
PART VII — EXEMPTIONS

51. —General exemptions.
52. —Journalism, literature and art.
53. —Research, history and statistics.
54. —Exemptions by the Data Commissioner.
55. —Data-sharing code.
PART VIII—ENFORCEMENT PROVISIONS
56. —Complaints to the Data Commissioner.
57. —Investigation of complaints.
58. —Enforcement notices.
59. —Power to seek assistance.
60. —Power of entry and search.
61. —Obstruction of the Data Commissioner.
62. —Penalty notices.
63. —Administrative fines.
64. — Right of appeal.
65. —Compensation of data subject.
66. —Preservation Order.
PART IX—FINANCIAL PROVISIONS
67. —Funds of the Office.
68. —Annual estimates.
69. —Accounts and Audit.
70. —Annual report.

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PART X —PROVISIONS ON DELEGATED

POWERS

71. —Regulations.
PART XI—MISCELLANEOUS PROVISIONS
72. —Offences of unlawful disclosure of Personal Data.
73. —General penalty.
74. —Codes, guidelines and certification.
75. —Consequential amendments.

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THE DATA PROTECTION ACT, 2019
AN ACT of Parliament to give effect to Article 31(c)
and (d) of the Constitution; to establish the Office
of the Data Protection Commissioner; to make
provision for the regulation of the processing of
personal data; to provide for the rights of data
subjects and obligations of data controllers and
processors; and for connected purposes
ENACTED by Parliament of Kenya, as follows—

PART I—PRELIMINARY

1. This Act may be cited as the Data Protection Act,
2019.
2. In this Act, unless the context otherwise requires —
“anonymisation” means the removal of personal
identifiers from personal data so that the data subject is no
longer identifiable;
“biometric data” means personal data resulting from
specific technical processing based on physical,
physiological or behavioural characterisation including
blood typing, fingerprinting, deoxyribonucleic acid
analysis, earlobe geometry, retinal scanning and voice
recognition;
“Cabinet Secretary” means the Cabinet Secretary
responsible for matters relating to information,
communication and technology;
“consent” means any manifestation of express,
unequivocal, free, specific and informed indication of the
data subject’s wishes by a statement or by a clear
affirmative action, signifying agreement to the processing
of personal data relating to the data subject;
“data” means information which —
(a) is processed by means of equipment operating
automatically in response to instructions given for
that purpose;
(b) is recorded with intention that it should be
processed by means of such equipment;
(c) is recorded as part of a relevant filing system;

No. 24

Short title.
Interpretation.

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No. 24 Data Protection 2019
(d) where it doe., not fall under paragraphs (a) (b) or
(c), forms part of .in accessible record; or
(e) is recorded information which is held by a public
entity and does not fall within any of paragraphs
(a) to (d).
“Data Commissioner” means the person appointed
under section 6;
“data controller” means a natural or legal person,
public authority, agency or other body which, alone or
jointly with others, determines the purpose and means of
processing of personal data;
“data processor” means a natural or legal person,
public authority, agency or other body which processes
personal data on behalf of the data controller;
“data subject” means an identified or identifiable
natural person who is the subject of personal data;
“encryption” means the process of converting the
content of any readable data using technical means into
coded form;
“filing system” means any structured set of personal
data which is readily accessible by reference to a data
subject or according to specific criteria, whether
centralised, decentralised or dispersed on a functional or
geographical basis;
“health data” means data related to the state of
physical or mental health of the data subject and includes
records regarding the past, present or future state of the
health, data collected in the course of registration for, or
provision of health services, or data which associates the
data subject to the provision of specific health services;
“identifiable natural person” means a person who can
be identified directly or indirectly, by reference to an
identifier such as a name, an identification number, location
data, an online identifier or to one or more factors specific
to the physical, physiological, genetic, mental, economic,
cultural or social or social identity;
“national security organs” has the meaning assigned
to it under Article 239 of the Constitution;
“person” has the meaning assigned to it under Article
260 of the Constitution;

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2019 Data Protection No. 24
“personal data” means any information relating to an
identified or identifiable natural person;
“personal data breach” means a breach of security
leading to the accidental or unlawful destruction, loss,
alteration, unauthorised disclosure of, or access to, personal
data transmitted, stored or otherwise processed;
“Office” means the office of the Data Protection
Commissioner;
“processing” means any operation or sets of
operations which is performed on personal data or on sets
of personal data whether or not by automated means, such
as
(a) collection, recording, organisation, structuring;
(b) storage, adaptation or alteration;
(c) retrieval, consultation or use;
(d) disclosure by transmission, dissemination, or
otherwise making available; or
(e) alignment or combination, restriction, erasure or
destruction.
“profiling” means any form of automated processing
of personal data consisting of the use of personal data to
evaluate certain personal aspects relating to a natural
person, in particular to analyse or predict aspects
concerning that natural person’s race, sex, pregnancy,
marital status, health status, ethnic social origin, colour,
age, disability, religion, conscience, belief, culture, dress,
language or birth; personal preferences, interests,
behaviour, location or movements;
“pseudonymisation” means the processing of personal
data in such a manner that the personal data can no longer
be attributed to a specific data subject without the use of
additional information, and such additional information is
kept separately and is subject to technical and
organisational measures to ensure that the personal data is
not attributed to an identified or identifiable natural person;
“register” means the register kept and maintained by
the Data Commissioner under section 21;
“restriction of processing” means the marking of
stored personal data with the aim of limiting their
processing in the future;

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“sensitive personal data” means 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; and
“third Party” means natural or legal person, public
authority, agency or other body, other than the data subject,
data controller, data processor or persons who, under the
direct authority of the data controller or data processor, are
authorised to process personal data.
3. The object and purpose of this Act is—
(a) to regulate the processing of personal data;
(b) to ensure that the processing of personal data of a
data subject is guided by the principles set out in
section 25;
(c) to protect the privacy of individuals;
(d) to establish the legal and institutional mechanism
to protect personal data; and
(e) to provide data subjects with rights and remedies
to protect their personal data from processing that
is not in accordance with this Act.
4. This Act applies to the processing of personal data
(a) entered in a record, by or for a data controller or

processor, by making use of automated or non-
automated means:

Provided that when the recorded personal data is
processed by non-automated means, it forms a whole or
part of a filing system;
(b) by a data controller or data processor who —
(i) is established or ordinarily resident in Kenya
and processes personal data while in Kenya; or
(ii) not established or ordinarily resident in Kenya,
but processing personal data of data subjects
located in Kenya.

Object and
purpose of this
Act.

Application.

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PART II—ESTABLISHMENT OF THE
OFFICE OF DATA PROTECTION COMMISSIONER
5. (1) There is established the office of the Data
Protection Commissioner which shall be a body corporate
with perpetual succession and a common seal and shall in
its corporate name, be capable of —
(a) suing and being sued;
(b) taking, purchasing or otherwise acquiring,
holding, charging or disposing of movable and
immovable property;
(c) entering into contracts; and
(d) doing such other legal acts necessary for the
proper performance of the functions of the Office.
(2) The Office is designated as a State Office in
accordance with Article 260 (q) of the Constitution.
(3) The Office shall comprise the Data Commissioner
as its head and accounting officer, and other staff
appointed by the Data Commissioner.
(4) The Office shall ensure reasonable access to its
services in all parts of the Republic.
(5) The Data Commissioner shall in consultation with
the Cabinet Secretary, establish such directorates as may be
necessary for the better carrying of the functions of the
Office.
6. (1) The Public Service Commission shall, whenever
a vacancy arises in the position of the Data Commissioner,
initiate the recruitment process.
(2) The Public Service Commission shall, within
seven days of being notified of a vacancy under subsection
(1), invite applications from persons who qualify for
nomination and appointment for the position of the Data
Commissioner.
(3) The Public Service Commission shall within
twenty-one days of receipt of applications under subsection
(2)—
(a) consider the applications received to determine
their compliance with this Act;

No. 24

Establishment of
the Office.

Appointment of
the Data
Commissioner.

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(b) shortlist qualified applicants;
(c) publish and publicise the names of the applicants
and the shortlisted applicants;
(d) conduct interviews of the shortlisted persons in an
open and transparent process;
(e) nominate three qualified applicants in the order of
merit for the position of Data Commissioner; and
(f) submit the names of the persons nominated under
paragraph (e) to the President.
(4) The President shall nominate and, with approval of
the National Assembly, appoint the Data Commissioner.
7. (1) A person shall be qualified for appointment as
the Data Commissioner if that person —
(a) holds a degree from a university recognized in
Kenya in —
(i) data science;
(ii) law;
(iii) information technology; or
(iv) any other related field;
(b) has knowledge and relevant experience of not less
than ten years;
(c) meets the requirements of Chapter Six of the
Constitution; and
(d) holds a master’s degree.
(2) The Data Commissioner shall be appointed for a

single term of six years and shall not be eligible for a re-
appointment.

8. (1) The Office shall—
(a) oversee the implementation of and be responsible
for the enforcement of this Act;
(b) establish and maintain a register of data controllers
and data processors;
(c) exercise oversight on data processing operations,
either of own motion or at the request of a data

Qualifications of
Data
Commissioner.

Functions of the
Office.

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2019 Data Protection No. 24
subject, and verify whether the processing of data
is done in accordance with this Act;
(d) promote self-regulation among data controllers
and data processors;
(e) conduct an assessment, on its own initiative of a
public or private body, or at the request of a
private or public body for the purpose of
ascertaining whether information is processed
according to the provisions of this Act or any other
relevant law;
(f) receive and investigate any complaint by any
person on infringements of the rights under this
Act;
(g) take such measures as may be necessary to bring
the provisions of this Act to the knowledge of the
general public;
(h) carry out inspections of public and private entities
with a view to evaluating the processing of
personal data;
(i) promote international cooperation in matters
relating to data protection and ensure country’s
compliance on data protection obligations under
international conventions and agreements;
(j) undertake research on developments in data
processing of personal data and ensure that there is
no significant risk or adverse effect of any
developments on the privacy of individuals; and
(k) perform such other functions as may be prescribed
by any other law or as necessary for the promotion
of object of this Act.
(2) The Office of the Data Commissioner may, in the
performance of its functions collaborate with the national
security organs.
(3) The Data Commissioner shall act independently in
exercise of powers and carrying out of functions under this
Act.
9. (1) The Data Commissioner shall have power to— Powers of the
Office.

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(a) conduct investigations on own initiative, or on the
basis of a complaint made by a data subject or a
third party;
(b) obtain professional assistance, consultancy or
advice from such persons or organisations whether
within or outside public service as considered
appropriate;
(c) facilitate conciliation, mediation and negotiation
on disputes arising from this Act;
(d) issue summons to a witness for the purposes of
investigation;
(e) require any person that is subject to this Act to
provide explanations, information and assistance
in person and in writing;
(f) impose administrative fines for failures to comply
with this Act;
(g) undertake any activity necessary for the fulfilment
of any of the functions of the Office; and
(h) exercise any powers prescribed by any other
legislation.
(2) The Data Commissioner may enter into association
with other bodies or organisations within and outside
Kenya as appropriate in furtherance of the object of this
Act.
10. The Data Commissioner may, subject to such
conditions as the Data Commissioner may impose, delegate
any power conferred under this Act or any other written
law to a regulator established through an Act of Parliament.
11. The Office of the Data Commissioner shall
become vacant, if the Data Commissioner—
(a) dies;
(b) resigns from office by notice in writing addressed
to the President;
(c) is convicted of an offence and sentenced to
imprisonment for a term exceeding six months
without the option of a fine;
(d) is removed from office on the grounds of—

Delegation by the
Data
Commissioner.

Vacancy in the
Office of the Data
Commissioner.

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(i) inability to perform the functions of office
arising from mental or physical infirmity;
(ii) non-compliance with Chapter Six of the
Constitution;
(iii) bankruptcy;
(iv) incompetence; or
(v) gross misconduct.
12. (1) A person desiring the removal of Data
Commissioner on any ground specified under section 11 (d)
. may present a complaint to the Public Service Commission
setting out the alleged facts constituting that ground.
(2) Subject to Article 47 of the Constitution, the Public
Service Commission shall consider the complaint and, if
satisfied that the complaint discloses a ground under
section 11 (d), shall —
(a) investigate the matter expeditiously;
(b) report on the facts; and
(c) make a recommendation to the Cabinet Secretary.
(3) Prior to any action under sub-section (2), the Data
Commissioner shall be —
(a) informed, in writing, of the reasons for the
intended removal; and
(b) offered an opportunity to put in a defence against
any such allegations.
13. The Data Commissioner shall in consultation with
the Public Service Commission, appoint such number of
staff as may be necessary for the proper and efficient
discharge of the functions under this Act or any other
relevant law.
14. The Data Commissioner and staff of the Office
shall be paid such remuneration or allowances as the
Salaries and Remuneration Commission may advise.
15. The Data Commissioner shall take the oath set out
in the First Schedule on appointment.
16. The Data Commissioner, or any staff of the Office,
shall not, unless with lawful authority, disclose any
information obtained for the purposes of this Act.

No. 24

Removal of the
Data
Commissioner.

Staff of the
Office.

Remuneration of
the Data
Commissioner
and staff.
Oath of office.
Confidentiality
agreement.

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Protection from
personal liability.

17. The Data Coir‘missioner or any staff of the Office
shall not be held liable for having performed any of their
functions in good faith and in accordance with this Act.
PART III— REGISTRATION OF DATA
CONTROLLERS AND DATA PROCESSORS
18. (1) Subject to sub-section (2), no person shall act
as a data controller or data processor unless registered with
the Data Commissioner.
(2) The Data Commissioner shall prescribe
thresholds required for mandatory registration of data
controllers and data processors, and in making such
determination, the Data Commissioner shall consider —
(a) the nature of industry;
(b) the volumes of data processed;
(c) whether sensitive personal data is being processed;
and
(d) any other criteria the Data Commissioner may
specify.
19. (1) A data controller or data processor required to
register under section 18 shall apply to the Data
Commissioner.
(2) An application under sub-section (1) shall provide
the following particulars —
(a) a description of the personal data to be processed
by the data controller or data processor;
(b) a description of the purpose for which the personal
data is to be processed;
(c) the category of data subjects, to which the personal
data relates;
(d) contact details of the data controller or data
processor;
(e) a general description of the risks, safeguards,
security measures and mechanisms to ensure the
protection of personal data;
(f) any measures to indemnify the data subject from
unlawful use of data by the data processor or data
controller; and

Registration of
data controllers
and data
processors.

Application for
registration.

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2019 Data Protection
(g) any other details as may be prescribed by the Data
Commissioner.
(3) A data controller or data processor who knowingly
supplies any false or misleading detail under sub-section
(1) commits an offence.
(4) The Data Commissioner shall issue a certificate of
registration where a data controller or data processor meets
the requirements for registration.
(5) A data controller or data processor shall notify the
Data Commissioner of a change in any particular outlined
under subsection (2).
(6) On receipt of a notification under sub-section (5),
the Data Commissioner shall amend the respective entry in
the Register.
(7) A data controller or data processor who fails to
comply with the provisions of this section commits an
offence.
20. A registration certificate issued under section 19
shall be valid for a period determined at the time of the
application after taking into account the need for the
certificate, and the holder may apply for a renewal of the
certificate after expiry of the certificate.
21. (1) The Data Commissioner shall keep and
maintain a register of the registered data controllers and
data processors.
(2) The Data Commissioner may, at the request of a
data controller or data processor, remove any entry in the
register which has ceased to be applicable.
(3) The register shall be a public document and
available for inspection by any person.
(4) A person may request the Data Commissioner for a
certified copy of any entry in the register.
22. The Data Commissioner may, on issuance of a
notice to show cause, vary terms and conditions of the
certificate of registration or cancel the registration where —
(a) any information given by the applicant is false or
misleading; or
(b) the holder of the registration certificate, without
lawful excuse, fails to comply with any
requirement of this Act.

No. 24

Duration of the
registration
certificate.

Register of data
controllers and
data processors.

Cancellation or
variation of the
certificate.

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No. 24 Data Protection 2019
23. The Data Commissioner may carry out periodical
audits of the processes and systems of the data controllers
or data processors to ensure compliance with this Act.
24. (1) A data controller or data processor may
designate or appoint a data protection officer on such terms
and conditions as the data controller or data processor may
determine, where —
(a) the processing is carried out by a public body or
private body, except for courts acting in their
judicial capacity;
(b) the core activities of the data controller or data
processor consist of processing operations which,
by virtue of their nature, their scope or their
purposes, require regular and systematic
monitoring of data subjects; or
(c) the core activities of the data controller or the data
processor consist of processing of sensitive
categories of personal data.
(2) A data protection officer may be a staff member of
the data controller or data processor and may fulfil other
tasks and duties provided that any such tasks and duties do
not result in a conflict of interest.
(3) A group of entities may appoint a single data
protection officer provided that such officer is accessible by
each entity.
(4) Where a data controller or a data processor is a
public body, a single data protection officer may be
designated for several such public bodies, taking into
account their organisational structures.
(5) A person may be designated or appointed as a data
protection officer, if that person has relevant academic or
professional qualifications which may include knowledge
and technical skills in matters relating to data protection.
(6) A data controller or data processor shall publish
the contact details of the data protection officer on the
website and communicate them to the Data Commissioner
who shall ensure that the same information is available on
the official website.

Compliance and
audit.

Designation of the
Data Protection
Officer.

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2019 Data Protection No. 24
(7) A data protection officer shall —
(a) advise the data controller or data processor and
their employees on data processing requirements
provided under this Act or any other written law;
(b) ensure on behalf of the data controller or data
processor that this Act is complied with;
(c) facilitate capacity building of staff involved in data
processing operations;
(d) provide advice on data protection impact
assessment; and
(e) co-operate with the Data Commissioner and any
other authority on matters relating to data
protection.
PART IV—PRINCIPLES AND OBLIGATIONS OF
PERSONAL DATA PROTECTION

Principles of data
protection. 25. Every data controller or data processor shall
ensure that personal data is —
(a) processed in accordance with the right to privacy
of the data subject;
(b) processed lawfully, fairly and in a transparent
manner in relation to any data subject;
(c) collected for explicit, specified and legitimate
purposes and not further processed in a manner
incompatible with those purposes;
(d) adequate, relevant, limited to what is necessary in
relation to the purposes for which it is processed;
(e) collected only where a valid explanation is
provided whenever information relating to family
or private affairs is required;
(f) 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;
(g) kept in a form which identifies the data subjects
for no longer than is necessary for the purposes
which it was collected; and
(h) not transferred outside Kenya, unless there is proof
of adequate data protection safeguards or consent
from the data subject.

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Rights of a data
subject.

26. A data subject has a right —
(a) to be informed of the use to which their personal
data is to be put;
(b) to access their personal data in custody of data
controller or data processor;
(c) to object to the processing of all or part of their
personal data;
(d) to correction of false or misleading data; and
(e) to deletion of false or misleading data about them.
27. A right conferred on a data subject may be
exercised—
(a) where the data subject is a minor, by a person who
has parental authority or by a guardian;
(b) where the data subject has a mental or other
disability, by a person duly authorised to act as
their guardian or administrator; or
(c) in any other case, by a person duly authorised by
the data subject.
28. (1) A data controller or data processor shall collect
personal data directly from the data subject.
(2) Despite sub-section (1), personal data may be
collected indirectly where —
(a) the data is contained in a public record;
(b) the data subject has deliberately made the data
public;
(c) the data subject has consented to the collection
from another source;
(d) the data subject has an incapacity, the guardian
appointed has consented to the collection from
another source;
(e) the collection from another source would not
prejudice the interests of the data subject;
(f) collection of data from another source is
necessary —
(i) for the prevention, detection, investigation,
prosecution and punishment of crime;

Exercise of rights
of data subjects.

Collection of
personal data.

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2019 Data Protection
(ii) for the enforcement of a law which imposes a
pecuniary penalty; or
(iii) for the protection of the interests of the data
subject or another person.
(3) A data controller or data processor shall collect,
store or use personal data for a purpose which is lawful,
specific and explicitly defined.
29. A data controller or data processor shall, before
collecting personal data, in so far as practicable, inform the
data subject of —
(a) the rights of data subject specified under section
26;
(b) the fact that personal data is being collected;
(c) the purpose for which the personal data is being
collected;
(d) the third parties whose personal data has been or
will be transferred to, including details of
safeguards adopted;
(e) the contacts of the data controller or data processor
and on whether any other entity may receive the
collected personal data;
(f) a description of the technical and organizational
security measures taken to ensure the integrity and
confidentiality of the data;
(g) the data being collected pursuant to any law and
whether such collection is voluntary or mandatory;
and
(h) the consequences if any, where the data subject
fails to provide all or any part of the requested
data.
30. (1) A data controller or data processor shall not
process personal data, unless —
(a) the data subject consents to the processing for one
or more specified purposes; or
(b) the processing is necessary —
(i) for the performance of a contract to which
the data subject is a party or in order to take
steps at the request of the data subject before
entering into a contract;

No. 24

Duty to notify.

Lawful processing
of personal data.

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No. 24 Data Protection 2019
(ii) for compliance with any legal obligation to
which the controller is subject;
(iii) in order to protect the vital interests of the
data subject or another natural person;
(iv) for the performance of a task carried out in
the public interest or in the exercise of
official authority vested in the controller;
(v) the performance of any task carried out by a
public authority;
(vi) for the exercise, by any person in the public
interest, of any other functions of a public
nature;
(vii) 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
(viii) for the purpose of historical, statistical,
journalistic, literature and art or scientific
research.
(2) Further processing of personal data shall be in
accordance with the purpose of collection.
(3) A data controller who contravenes the provisions
of sub-section (1) commits an offence.
31. (1) Where a processing operation is likely to result
in high risk to the rights and freedoms of a data subject, by
virtue of its nature, scope, context and purposes, a data
controller or data processor shall, prior to the processing,
carry out a data protection impact assessment.
(2) A data protection impact assessment shall include
the following —
(a) a systematic description of the envisaged
processing operations and the purposes of the
processing, including, where applicable, the
legitimate interest pursued by the data controller or
data processor;

Data protection
impact
assessment.

921

2019 Data Protection No. 24
(b) an assessment of the necessity and proportionality
of the processing operations in relation to the
purposes;
(c) an assessment of the risks to the rights and
freedoms of data subjects;
(d) the measures envisaged to address the risks and the
safeguards, security measures and mechanisms to
ensure the protection of personal data and to
demonstrate compliance with this Act, taking into
account the rights, and legitimate interests of data
subjects and other persons concerned.
(3) The data controller or data processor shall consult
the Data Commissioner prior to the processing if a data
protection impact assessment prepared under this section
indicates that the processing of the data would result in a
high risk to the rights and freedoms of a data subject.
(4) For the purposes of this section, a “data protection
impact assessment” means an assessment of the impact of
the envisaged processing operations on the protection of
personal data.
(5) The data impact assessment reports shall be
submitted sixty days prior to the processing of data.
(6) The Data Commissioner shall set out guidelines
for carrying out an impact assessment under this section.
32. (1) A data controller or data processor shall bear
the burden of proof for establishing a data subject’s consent
to the processing of their personal data for a specified
purpose.
(2) Unless otherwise provided under this Act, a data
subject shall have the right to withdraw consent at any
time.
(3) The withdrawal of consent under sub-section (2)
shall not affect the lawfulness of processing based on prior
consent before its withdrawal.
(4) In determining whether consent was freely given,
account shall be taken of whether, among others, the
performance of a contract, including the provision of a
service, is conditional on consent to the processing of
personal data that is not necessary for the performance of
that contract.

Conditions of
consent.

922

No. 24 Data Protection 2019
Processing of
personal data
relating to a child.

33. (1) Every c.L.,ta controller or data processor shall
not process personal data :.elating to a child unless —
(a) consent is given by the child’s parent or guardian;
and
(b) the processing is in such a manner that protects
and advances the rights and best interests of the
child.
(2) A data controller or data processor shall
incorporate appropriate mechanisms for age verification
and consent in order to process personal data of a child.
(3) Mechanisms contemplated under sub-section (2)
shall be determined on the basis of—
(a) available technology;
(b) volume of personal data processed;
(c) proportion of such personal data likely to be that
of a child;
(d) possibility of harm to a child arising out of
processing of personal data; and
(e) such other factors as may be specified by the Data
Commissioner.
(4) A data controller or data processor that exclusively
provides counselling or child protection services to a child
may not be required to obtain parental consent as set out
under sub-section (1).
34. (1) A data controller or data processor shall, at the
request of a data subject, restrict the processing of personal
data where—
(a) accuracy of the personal data is contested by the
data subject, for a period enabling the data
controller to verify the accuracy of the data;
(b) personal data is no longer required for the purpose
of the processing, unless the data controller or data
processor requires the personal data for the
establishment, exercise or defence of a legal claim;
(c) processing is unlawful and the data subject
opposes the erasure of the personal data and
requests the restriction of their use instead; or

Restrictions on
processing.

923

2019 Data Protection No. 24
(d) data subject has objected to the processing,
pending verification as to whether the legitimate
interests of the data controller or data processor
overrides those of the data subject.
(2) Where processing of personal data is restricted
under this section—
(a) the personal data shall, unless the data is being
stored, only be processed with the data subject’s
consent or for the establishment, exercise or
defence of a legal claim, the protection of the
rights of another person or for reasons of public
interest; and
(b) the data controller shall inform the data subject
before withdrawing the restriction on processing of
the personal data.
(3) The data controller or data processor shall
implement mechanisms to ensure that time limits
established for the rectification, erasure or restriction of
processing of personal data, or for a periodic review of the
need for the storage of the personal data, is observed.
35. (1) Every data subject has a right not to be subject
to a decision based solely on automated processing,
including profiling, which produces legal effects
concerning or significantly affects the data subject.
(2) Sub-section (1) shall not apply where the decision
is
(a) necessary for entering into, or performing, a
contract between the data subject and a data
controller;
(b) authorised by a law to which the data controller is
subject and which lays down suitable measures to
safeguard the data subject’s rights, freedoms and
legitimate interests; or
(c) based on the data subject’s consent.
(3) Where a data controller or data processor takes a
decision, which produces legal effects or significantly
affects the data subject based solely on automated
processing—

Automated
individual
decision making.

924

No. 24 Data Protection 2019
(a) the data controller or data processor must, as soon
as reasonably practicable, notify the data subject in
writing that a decision has been taken based solely
on automated processing; and
(b) the data subject may, after a reasonable period of
receipt of the notification, request the data
controller or data processor to —
(i) reconsider the decision; or
(ii) take a new decision that is not based solely on
automated processing.
(4) A data controller or data processor, upon receipt
of a request under sub-section (3), shall within a reasonable
period of time —
(a) consider the request, including any information
provided by the data subject that is relevant to it;
(b) comply with the request; and
(c) by notice in writing inform the data subject of —
(i) the steps taken to comply with the request; and
(ii) the outcome of complying with the request.
(5) The Cabinet Secretary may by Regulations make
such further provision to provide suitable measures to
safeguard a data subject’s rights, freedoms and legitimate
interests in connection with the taking of decisions based
solely on automated processing.
36. A data subject has a right to object to the
processing of their personal data, unless the data controller
or data processor demonstrates compelling legitimate
interest for the processing which overrides the data
subject’s interests, or for the establishment, exercise or
defence of a legal claim.
37. (1) A person shall not use, for commercial
purposes, personal data obtained pursuant to the provisions
of this Act unless the person —
(a) has sought and obtained express consent from a
data subject; or
(b) is authorised 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.

Objecting to
processing.

Commercial use
of data.

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2019 Data Protection No. 24
(2) A data controller or data processor that uses
personal data for commercial purposes shall, where
possible, anonymise the data in such a manner as to ensure
that the data subject is no longer identifiable.
(3) The Cabinet Secretary, in consultation with the
Data Commissioner, may prescribe practice guidelines for
commercial use of personal data in accordance with this
Act.
38. (1) A data subject has the right to receive personal
data concerning them in a structured, commonly used and
machine-readable format.
(2) A data subject has the right to transmit the data
obtained under sub-section (1), to another data controller or
data processor without any hindrance.
(3) Where technically possible, the data subject shall
have the right to have the personal data transmitted directly
from one data controller or processor to another.
(4) Where data controller or data processor declines to
comply with a request under sub-section (3), the Data
Commissioner may make a determination on the technical
capacity of the data controller or data processor.
(5) The right under this section shall not apply in
circumstances where —
(a) processing may be necessary for the performance
of a task carried out in the public interest or in the
exercise of an official authority; or
(b) it may adversely affect the rights and freedoms of
others.
(6) A data controller or data processor shall comply
with data portability requests, at reasonable cost and within
a period of thirty days.
(7) Where the portability request is complex or
numerous, the period under sub-section (6) may be
extended for a further period as may be determined in
consultation with the Data Commissioner.
39. (1) A data controller or data processor shall retain
personal data only as long as may be reasonably necessary
to satisfy the purpose for which it is processed unless the
retention is —

Right to data
portability.

Limitation to
retention of
personal data.

926

No. 24 Data Protection 2019
(a) required or authorised by law;
(b) reasonably necessary for a lawful purpose;
(c) authorised or consented by the data subject; or
(d) for historical, statistical, journalistic literature and
art or research purposes.
(2) A data controller or data processor shall delete,
erase, anonymise or pseudonymise personal data not
necessary to be retained under sub-section (1) in a manner
as may be specified at the expiry of the retention period.
40. (1) A data subject may request a data controller or
data processor —
(a) to rectify without undue delay personal data in its
possession or under its control that is inaccurate,
out-dated, incomplete or misleading; or
(b) to erase or destroy without undue delay personal
data that the data controller or data processor is no
longer authorised to retain, irrelevant, excessive or
obtained unlawfully.
(2) Where the data controller has shared the personal
data with a third party for processing purposes, the data
controller or data processor shall take all reasonable steps
to inform third parties processing such data, that the data
subject has requested —
(a) the rectification of such personal data in their
possession or under their control that is inaccurate,
out-dated, incomplete or misleading; or
(b) the erasure or destruction of such personal data
that the data controller is no longer authorised to
retain, irrelevant, excessive or obtained
unlawfully.
(3) Where a data controller or data processor is
required to rectify or erase personal data under sub-section
(1), but the personal data is required for the purposes of
evidence, the data controller or data processor shall, instead
of erasing or rectifying, restrict its processing and inform
the data subject within a reasonable time.
41. (1) Every data controller or data processor shall
implement appropriate technical and organisational
measures which are designed —

Right of
rectification and
erasure.

Data protection by
design or by
default.

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2019 Data Protection No. 24
(a) to implement the data protection principles in an
effective manner; and
(b) to integrate necessary safeguards for that purpose
into the processing.
(2) The duty under subsection (1) applies both at the
time of the determination of the means of processing the
data and at the time of the processing.
(3) A data controller or data processor shall
implement appropriate technical and organisational
measures for ensuring that, by default, only personal data
which is necessary for each specific purpose is processed,
taking into consideration
(a) the amount of personal data collected;
(b) the extent of its processing;
(c) the period of its storage;
(d) its accessibility; and
(e) the cost of processing data and the technologies
and tools used.
(4) To give effect to this section, the data controller or
data processor shall consider measures such as —
(a) to identify reasonably foreseeable internal and
external risks to personal data under the person’s
possession or control;
(b) to establish and maintain appropriate safeguards
against the identified risks;
(c) to the pseudonymisation and encryption of
personal data;
(d) to the ability to restore the availability and access
to personal data in a timely manner in the event of
a physical or technical incident;
(e) to verify that the safeguards are effectively
implemented; and
(f) to ensure that the safeguards are continually
updated in response to new risks or deficiencies.
42. (1) In determining the appropriate measures
referred to in section 41, in particular, where the processing
involves the transmission of data over an information and
communication network, a data controller shall have regard
to —

Particulars of
determining
organisational
measures.

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No. 24 Data Protection 2019
(a) the state of technological development available;
(b) the cost of implementing any of the security
measures;
(c) the special risks that exist in the processing of the
data; and
(d) the nature of the data being processed.
(2) Where a data controller is using the services of a
data processor —
(a) the data controller shall opt for a data processor
who provides sufficient guarantees in respect of
organisational measures for the purpose of
complying with section 41 (1); and
(b) the data controller and the data processor shall
enter into a written contract which shall provide
that the data processor shall act only on
instructions received from the data controller and
shall be bound by obligations of the data
controller.
(3) Where a data processor processes personal data
other than as instructed by the data controller, the data
processor shall be deemed to be a data controller in respect
of that processing.
(4) A data controller or data processor shall take all
reasonable steps to ensure that any person employed by or
acting under the authority of the data controller or data
processor, complies with the relevant security measures.
43. (1) Where personal data has been accessed or
acquired by an unauthorised person, and there is a real risk
of harm to the data subject whose personal data has been
subjected to the unauthorised access, a data controller
shall—
(a) notify the Data Commissioner without delay,
within seventy-two hours of becoming aware of
such breach; and
(b) subject to subsection (3), communicate to the data
subject in writing within a reasonably practical
period, unless the identity of the data subject
cannot be established.

Notification and
communication of
breach.

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2019 Data Protection No. 24
(2) Where the notification to the Data Commissioner
is not made within seventy-two hours, the notification shall
be accompanied by reasons for the delay.
(3) Where a data processor becomes aware of a
personal data breach, the data processor shall notify the
data controller without delay and where reasonably
practicable, within forty-eight hours of becoming aware of
such breach.
(4) The data controller may delay or restrict
communication referred to under subsection (1) (b) as
necessary and proportionate for purposes of prevention,
detection or investigation of an offence by the concerned
relevant body.
(5) The notification and communication referred to
under subsection (1) shall provide sufficient information to
allow the data subject to take protective measures against
the potential consequences of the data breach, including —
(a) description of the nature of the data breach;
(b) description of the measures that the data controller
or data processor intends to take or has taken to
address the data breach;
(c) recommendation on the measures to be taken by
the data subject to mitigate the adverse effects of
the security compromise;
(d) where applicable, the identity of the unauthorised
person who may have accessed or acquired the
personal data; and
(e) the name and contact details of the data protection
officer where applicable or other contact point
from whom more information could be obtained.
(6) The communication of a breach to the data subject
shall not be required where the data controller or data
processor has implemented appropriate security safeguards
which may include encryption of affected personal data.
(7) Where and to the extent that it is not possible to
provide all the information mentioned in subsection (5) at
the same time, the information may be provided in phases
without undue delay.
(8) The data controller shall record the following
information in relation to a personal data breach—

930

No. 24 Data Protection 2019
(a) the facts relating to the breach;
(b) its effects; and
(c) the remedial action taken.
PART V— GROUNDS FOR PROCESSING OF
SENSITIVE PERSONAL DATA
44. No category of sensitive personal data shall be
processed unless section 25 applies to that processing.
45. Without prejudice to section 44, sensitive personal
data of a data subject may be processed where —
(a) the processing is carried out in the course of
legitimate activities with appropriate safeguards by

a foundation, association or any other not-for-
profit body with a political, philosophical,

religious or trade union aim and on condition
that —
(i) the processing relates solely to the members of
the body or to persons who have regular
contact with it in connection with its purposes;
and
(ii) the personal data is not disclosed outside that
body without the consent of the data subject.
(b) the processing relates to personal data which is
manifestly made public by the data subject; or
(c) processing is necessary for—
(i) the establishment, exercise or defence of a
legal claim;
(ii) the purpose of carrying out the obligations
and exercising specific rights of the controller
or of the data subject; or
(iii) protecting the vital interests of the data
subject or another person where the data
subject is physically or legally incapable of
giving consent.
46. (1) Personal data relating to the health of a data
subject may only be processed —
(a) by or under the responsibility of a health care
provider; or

Processing of
sensitive personal
data.
Permitted grounds
for processing
sensitive personal
data.

Personal data
relating to health.

931

2019 Data Protection No. 24
(b) by a person subject to the obligation of
professional secrecy under any law.
(2) The condition under subsection (1) is met if the
processing —
(a) is necessary for reasons of public interest in the
area of public health; or
(b) is carried out by another person who in the
circumstances owes a duty of confidentiality under
any law.
47. (1) The Data Commissioner may prescribe further
categories of personal data which may be classified as
sensitive personal data.
(2) Where categories of personal data have been
specified as sensitive personal data under subsection (1),
the Data Commissioner may specify any further grounds on
which such specified categories may be processed, having
regard —
(a) to the risk of significant harm that may be caused
to a data subject by the processing of such
category of personal data;
(b) to the expectation of confidentiality attached to
such category of personal data;
(c) to whether a significantly discernible class of data
subjects may suffer significant harm from the
processing of such category of personal data; and
(d) to the adequacy of protection afforded by ordinary
provisions applicable to personal data.
(3) The Data Commissioner may specify other
categories of personal data, which may require additional
safeguards or restrictions.
PART VI —TRANSFER OF PERSONAL DATA

OUTSIDE KENYA

48. A data controller or data processor may transfer
personal data to another country only where —
(a) the data controller or data processor has given
proof to the Data Commissioner on the appropriate
safeguards with respect to the security and
protection of the personal data;

Conditions for
transfer out of
Kenya.
Further categories
of sensitive
personal data.

932

No. 24 Data Protection 2019
(b) the data controller or data processor has given
proof to the Data Commissioner of the appropriate
safeguards with respect to the security and
protection of personal data, and the appropriate
safeguards including jurisdictions with
commensurate data protection laws;
(c) the transfer is necessary —
(i) for the performance of a contract between the
data subject and the data controller or data

processor or implementation of pre-
contractual measures taken at the data

subject’s request;
(ii) for the conclusion or performance of a
contract concluded in the interest of the data
subject between the controller and another
person;
(iii) for any matter of public interest;
(iv) for the establishment, exercise or defence of a
legal claim;
(v) in order to protect the vital interests of the
data subject or of other persons, where the
data subject is physically or legally incapable
of giving consent; or
(vi) for the purpose of compelling legitimate
interests pursued by the data controller or
data processor which are not overridden by
the interests, rights and freedoms of the data
subjects.
49. (1) The processing of sensitive personal data out of
Kenya shall only be effected upon obtaining consent of a
data subject and on obtaining confirmation of appropriate
safeguards.
(2) The Data Commissioner may request a person who
transfers data to another country to demonstrate the
effectiveness of the security safeguards or the existence of
compelling legitimate interests.
(3) The Data Commissioner may, in order to protect
the rights and fundamental freedoms of data subjects,
prohibit, suspend or subject the transfer to such conditions
as may be determined.

Safeguards prior
to transfer of
personal data out
of Kenya.

933
2019 Data Protection
50. The Cabinet Secretary may prescribe, based on
grounds of strategic interests of the state or protection of
revenue, certain nature of processing that shall only be
effected through a server or a data centre located in Kenya.

PART VII— EXEMPTIONS
51. (1) Nothing in this Part shall exempt any data
controller or data processor from complying with data
protection principles relating to lawful processing,
minimisation of collection, data quality, and adopting
security safeguards to protect personal data.
(2) The processing of personal data is exempt from the
provisions of this Act if —
(a) it relates to processing of personal data by an
individual in the course of a purely personal or
household activity;
(b) if it is necessary for national security or public
interest; or
(c) disclosure is required by or under any written law
or by an order of the court.
52. (1) The principles of processing personal data shall
not apply where —
(a) processing is undertaken by a person for the
publication of a literary or artistic material;
(b) data controller reasonably believes that publication
would be in the public interest; and
(c) data controller reasonably believes that, in all the
circumstances, compliance with the provision is
incompatible with the special purposes.
(2) Subsection (1) (b) shall only apply where it can be
demonstrated that the processing is in compliance with any
self-regulatory or issued code of ethics in practice and
relevant to the publication in question.
(3) The Data Commissioner shall prepare a code of
practice containing practical guidance in relation to the
processing of personal data for purposes of Journalism,
Literature and Art.
53. (1) The further processing of personal data shall
be compatible with the purpose of collection if the data is

No. 24
Processing
through a data
server or data
centre in Kenya.

General
exemptions.

Journalism,
literature and art.

Research, history
and statistics.

934

No. 24 Data Protection 2019
used for historical, statistical or research purposes and the
data controller or data processor shall ensure that the
further processing is carried out solely for such purposes
and will not be published in an identifiable form.
(2) The data controller or data processor shall take
measures to establish appropriate safeguards against the
records being used for any other purposes.
(3) Personal data which is processed only for research
purposes is exempt from the provisions of this Act if —
(a) data is processed in compliance with the relevant
conditions; and
(b) results of the research or resulting statistics are not
made available in a form which identifies the data
subject or any of them.
(4) The Data Commissioner shall prepare a code of
practice containing practical guidance in relation to the
processing of personal data for purposes of Research,
History and Statistics.
54. The Data Commissioner may prescribe other
instances where compliance with certain provisions of this
Act may be exempted.
55. (1) The Data Commissioner may issue a data
sharing code which shall contain —
(a) practical guidance in relation to the sharing of
personal data in accordance with the requirements
of the data protection legislation; and
(b) such other guidance as the Commissioner
considers appropriate to promote good practice in
the sharing of personal data.
(2) The data sharing code under subsection (1) shall
specify on the lawful exchange of personal data between
government departments or public sector agencies.
PART VIII—ENFORCEMENT PROVISIONS
56. (1) A data subject who is aggrieved by a decision
of any person under this Act may lodge a complaint with
the Data Commissioner in accordance with this Act.
(2) A person who intends to lodge a complaint under
this Act shall do so orally or in writing.

Exemptions by the
Data
Commissioner.
Data-sharing
code.

Complaints to the
Data
Commissioner.

935

2019 Data Protection No. 24
(3) Where a complaint made under subclause (1) is
made orally, the Data Commissioner shall cause the
complaint to be recorded in writing and the complaint shall
be dealt with in accordance with such procedures as the
Data Commissioner may prescribe.
(4) A complaint lodged under subclause (1) shall
contain such particulars as the Data Commissioner may
prescribe.
(5) A complaint made to the Data Commissioner shall
be investigated and concluded within ninety days.
57. (1) The Data Commissioner may, for the purpose
of the investigation of a complaint, order any person to —
(a) attend at a specified time and place for the purpose
of being examined orally in relation to the
complaint;
(b) produce such book, document, record or article as
may be required with respect to any matter
relevant to the investigation, which the person is
not prevented by any other enactment from
disclosing; or
(c) furnish a statement in writing made under oath or
on affirmation setting out all information which
may be required under the notice.
(2) Where material to which an investigation relates
consists of information stored in any mechanical or
electronic device, the Data Commissioner may require the
person named to produce or give access to it in a form in
which it can be taken away and in which it is visible and
legible.
(3) A person who, without reasonable excuse, fails or
refuses to comply with a notice, or who furnishes to the
Data Commissioner any information which the person
knows to be false or misleading, commits an offence.
58. (1) Where the Data Commissioner is satisfied that
a person has failed, or is failing, to comply with any
provision of this Act, the Data Commissioner may serve an
enforcement notice on that person requiring that person to
take such steps and within such period as may be specified
in the notice.

Investigation of
complaints.

Enforcement
notices.

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No. 24 Data Protection 2019
(2) An enforcement notice served under subsection (1)
shall —
(a) specify the provision of this Act which has been, is
being or is likely to be, contravened;
(b) specify the measures that shall be taken to remedy
or eliminate the situation which makes it likely
that a contravention will arise;
(c) specify a period which shall not be less than
twenty-one days within which those measures
shall be implemented; and
(d) state any right of appeal.
(3) Any person who, without reasonable excuse, fails
to comply with an enforcement notice commits an offence
and is liable on conviction to a fine not exceeding five
million shillings or to imprisonment for a term not
exceeding two years, or to both.
59. For the purpose of gathering information or for
any investigation under this Act, the Data Commissioner
may seek the assistance of such person or authority as they
deem fit and as is reasonably necessary to assist the Data
Commissioner in the discharge of their functions.
60. The Data Commissioner, upon obtaining a warrant
from a Court, may enter and search any premises for the
purpose of discharging any function or exercising any
power under this Act.
61. A person who, in relation to the exercise of a
power conferred by section 9—
(a) obstructs or impedes the Data Commissioner in the
exercise of their powers;
(b) fails to provide assistance or information requested
by the Data Commissioner;
(c) refuses to allow the Data Commissioner to enter
any premises or to take any person with them in
the exercise of their functions;
(d) gives to the Data Commissioner any information
which is false or misleading in any material aspect,
commits an offence and is liable on conviction to a
fine not exceeding five million shillings or to imprisonment
for a term not exceeding two years, or to both.

Power to seek
assistance.

Power of entry
and search.

Obstruction of
Data
Commissioner.

937
2019 Data Protection
62. (1) If the Data Commissioner is satisfied that a
person has failed or is failing as described in section 58, the
Data Commissioner may issue a penalty notice requiring
the person to pay to the Office of the Data Commissioner
an amount specified in the notice.
(2) In deciding whether to give a penalty notice to a
person and determining the amount of the penalty, the Data
Commissioner shall, so far as relevant, have regard —
(a) to the nature, gravity and duration of the failure;
(b) to the intentional or negligent character of the
failure;
(c) to any action taken by the data controller or data
processor to mitigate the damage or distress
suffered by data subjects;
(d) to the degree of responsibility of the data
controller or data processor, taking into account
technical and organisational measures;
(e) to any relevant previous failures by the data
controller or data processor;
to the degree of co-operation with the Data
Commissioner, in order to remedy the failure and
mitigate the possible adverse effects of the failure;
(g) to the categories of personal data affected by the
failure;
(h) to the manner in which the infringement became
known to the Data Commissioner, including
whether, and if so to what extent, the data
controller or data processor notified the Data
Commissioner of the failure;
(i) to the extent to which the data controller or data
processor has complied with previous enforcement
notices or penalty notices;
(j) to adherence to approved codes of conduct or
certification mechanisms;
(k) to any other aggravating or mitigating factor
applicable to the case, including financial benefits
gained, or losses avoided, as a result of the failure
(whether directly or indirectly);

No. 24
Penalty notices.

938

No. 24 Data Protection 2019
(1) to whether the penalty would be effective,
proportionate and dissuasive.
63. In relation to an infringement of a provision of this
Act, the maximum amount of the penalty that may be
imposed by the Data Commissioner in a penalty notice is
up to five million shillings, or in the case of an undertaking,
up to one per centum of its annual turnover of the
preceding financial year, whichever is lower.
64. A person against whom any administrative action
is taken by the Data Commissioner, including in
enforcement and penalty notices, may appeal to the High
Court.
65. (1) A person who suffers damage by reason of a
contravention of a requirement of this Act is entitled to
compensation for that damage from the data controller or
the data processor.
(2) Subject to subsection (1)—
(a) a data controller involved in processing of
personal data is liable for any damage caused by
the processing; and
(b) a data processor involved in processing of personal
data is liable for damage caused by the processing
only if the processor —
(i) has not complied with an obligation under the
Act specifically directed at data processors; or
(ii) has acted outside, or contrary to, the data
controller’s lawful instructions.
(3) A data controller or data processor is not liable in
the manner specified in subsection (2) if the data controller
or data processor proves that they are not in any way
responsible for the event giving rise to the damage.
(4) In this section, “damage” includes financial loss
and damage not involving financial loss, including distress.
66. The Data Commissioner may apply to a court for a
preservation order for the expeditious preservation of
personal data including traffic data, where there is
reasonable ground to believe that the data is vulnerable to
loss or modification.

Administrative
fines.

Right of appeal.

Compensation to a
data subject.

Preservation
Order.

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2019 Data Protection No. 24
PART IX—FINANCIAL PROVISIONS
67. The funds and assets of the Office shall consist Funds of the
of— Office.
(a) monies allocated by the National Assembly for
purposes of the Office;
(b) any grants, gifts, donations or other endowments
given to the Office; and
(c) such funds as may vest in or accrue to the Office
in the performance of its functions under this Act
or any other written law.
68. (1) At least three months before the
commencement of each financial year, the Data
Commissioner shall cause to be prepared estimates of the
revenue and expenditure of the Office for that year.
(2) The annual estimates shall make provision for all
the estimated expenditure of the Office for the financial
year concerned and in particular shall provide for—
(a) the payment of salaries, allowances and other
charges in respect of the staff of the Office;
(b) the payment of pensions, gratuities and other
charges in respect of retirement benefits which are
payable out of the finances of the Office;
(c) the acquisition, maintenance, repair and
replacement of the equipment and other movable
property of the Office;
(d) funding of training, research and development of
activities of the Office;
(e) the creation of such reserve funds to meet future or
contingent liabilities or in respect of such other
matters as the Data Commissioner may deem fit;
and
(f) any other expenditure for the purposes of this Act.
(3) The annual estimates shall be submitted to the
Cabinet Secretary for tabling in the National Assembly.
69. The annual accounts of the Office shall be
prepared, audited and reported in accordance with the
provisions of Articles 226 and 229 of the Constitution, the
Public Finance Management Act, 2012, or any other law
relating to audit of public entities.

Annual estimates.

Accounts and
Audit.

No. 18 of 2012.

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No. 24 Data Protection 2019
Annual reports. 70. (1) The Data Commissioner shall, within three
months after the end of each financial year, prepare and
submit to the Cabinet Secretary a report of the operations of
the Office for the immediately preceding year.
(2) The Cabinet Secretary shall submit the annual
report before the National Assembly within three months of
receipt of the report under subsection (1).
(3) The annual report shall contain in respect of the
year to which it relates —
(a) the financial statements and description of
activities of the Office;
(b) such other statistical information as the Data
Commissioner may consider appropriate relating
to the Data Commissioner’s functions;
(c) the impact of the exercise of any of Data
Commissioner’s mandate or function;
(d) any impediments to the achievements of the object
and purpose of this Act or any written law; and
(e) any other information relating to its functions that
the Data Commissioner may consider necessary.
PART X —PROVISIONS ON DELEGATED POWERS
71. The Cabinet Secretary may, make regulations
generally for giving effect to this Act, and for prescribing
anything required or necessary to be prescribed by or under
this Act.
(2) Without prejudice to the generality of subsection
(1), regulations made under that subsection may provide
for—
(a) the requirements which are imposed on a data
controller or data processor when processing
personal data;
(b) mechanisms of conducting certification program;
(c) the contents which a notice or registration by a
data controller or data processor should contain;
(d) information to be provided to a data subject and
how such information shall be provided;
(e) the levying of fees and taking of charges;

Regulations.

941
2019 Data Protection
(f) the measures to safeguard a data subject’s rights,
freedoms and legitimate interests;
(g) the processing of data through a data server or data
centre in Kenya;
(h) issuing and approval of codes of practice and
guidelines; or
(i) any other matter that the Cabinet Secretary may
deem fit.
(3) For the purposes of Article 94 (6) of the
Constitution —
(a) the purpose and objective of the delegation under
this section is to enable the Cabinet Secretary to
make regulations for better carrying into effect the
provisions of this Act;
(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
fulfilment of the objectives specified under this
section.
(4) The principles and standards applicable to the
delegated power referred to under this Act are those found
in—
(a) the Statutory Instruments Act, 2013;
(b) the Interpretation and General Provisions Act;
(c) the general rules of international law as specified
under Article 2 (5) of the Constitution; and
(d) any treaty and convention ratified by Kenya under
Article 2 (6) of the Constitution.
PART XI—MISCELLANEOUS PROVISIONS
72. (1) A data controller who, without lawful excuse,
discloses personal data in any manner that is incompatible
with the purpose for which such data has been collected
commits an offence.
(2) A data processor who, without lawful excuse,
discloses personal data processed by the data processor
without the prior authority of the data controller commits
an offence.

No. 24

No. 23 of 2013.

Cap. 2.

Offences of
unlawful
disclosure of
personal data.

(3) Subject to subsection (4), a person who—

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No. 24 Data Protection 2019
(a) obtains access to personal data, or obtains any
information constituting such data, without prior
authority of the data controller or data processor
by whom the data is kept; or
(b) discloses personal data to third party, commit an
offence.
(4) Subsection (3) shall not apply to a person who is
an employee or agent of a data controller or data processor
acting within the scope of such mandate.
(5) A person who offers to sell personal data where

such personal data has been obtained in breach of sub-
section (1) commits an offence.

(6) For the purposes of subsection (5), an
advertisement indicating that personal data is or may be for
sale constitutes an offer to sell the personal data.
73. (1) A person who commits an offence under this
Act for which no specific penalty is provided or who
otherwise contravenes this Act shall, on conviction, be
liable to a fine not exceeding three million shillings or to an
imprisonment term not exceeding ten years, or to both.

(2) In addition to any penalty referred to in sub-
section (1), the Court may —

(a) order the forfeiture of any equipment or any article
used or connected in any way with the commission
of an offence; or
(b) order or prohibit the doing of any act to stop a
continuing contravention.
74. (1) The Data Commissioner may, for the purpose
of this Act —
(a) issue guidelines or codes of practice for the data
controllers, data processors and data protection
officers;
(b) offer data protection certification standards and
data protection seals and marks in order to
encourage compliance of processing operations
with this Act;
(c) require certification or adherence to code of
practice by a third party;
(d) develop sector specific guidelines in consultation
with relevant stakeholders in areas such as health,

General penalty.

Codes, guidelines
and certification.

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2019 Data Protection No. 24
financial services, education, social Protection and
any other area as the Data Commissioner may
determine.
(2) A certification issued under this section shall not
alter the responsibility of the data controller or data
processor for compliance with this Act.
75. The laws specified under the Second Schedule are
amended in the manner specified.

Consequential
amendments.

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No. 24 Data Protection 2019
FIRST SCHEDULE (s.15)

make
oath/solemnly affirm/declare that I will faithfully and honestly fulfil my
duties as the Data Commissioner in conformity with the Data Protection
Act and that I shall not, without the due authority in that behalf, disclose
or make known any matter or thing which comes to my knowledge by
reason of discharge of my duties

Magistrate/Judge

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2019 Data Protection No. 24
SECOND SCHEDULE (s.75)
CONSEQUENTIAL AMENDMENTS

Written Law Provision Amendment
Births and s.7 Add the following new sub-section
Deaths Act immediately after subsection (3)—
(Cap. 149) (4) The Register shall be
maintained in accordance with the
principles of data protection set out
in the Data Protection Act.
Capital Markets s.11(3) Insert the following new paragraph
Act (Cap 485A) immediately after paragraph (v) —
(va) ensure processing of personal
data in the operations of capital
markets is in accordance with
principles set out under the
Data Protection Act, 2018.
Insertion Insert the following new section
of new immediately after section 13B —
section

Data protection
principles 13C. The principles of
personal data protection as
set out in the Data Protection
Act shall apply to the
collection and processing of
personal data by the
Authority or any person
authorized by the Authority.

Independent
Electoral and
Boundaries
Commission Act

s .18C (2) Insert the following new paragraph
immediately after paragraph (d) —
(e) mechanisms of protecting personal data
of the data subjects in compliance with
the Data Protection Act.

s.25 Adding the following new paragraph
immediately after paragraph (h) —
(i) the principles of personal data
protection set out in the Data
Protection Act shall apply to the
processing of personal data of
voters under this Act.

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No. 24 Data Protection 2019
s.27 Adding the following new subsection
immediately after subsection (5) —
(6) The Commission shall ensure the
management of personal data is in
accordance with the principles of personal
data protection as set out in the Data
Protection Act.

Kenya National s.10(2) Insert the following new paragraph
Examinations immediately after paragraph (m)—
Council Act (n) to align its Regulations on the
collection and processing of
information which consists of
personal data with the Data
Protection Act.

Employment s.61 Adding the following new subsection —
Act, 2007 (2) Where an employer maintains such
a register, the register shall be maintained
in accordance with the principles of data
protection as set out in the Data Protection
Act.

The Kenya Insertion Insert the following new section
Citizenship and of new immediately after section 3 —
Immigration section
Act, 2011

Personal data of
individuals

3A. Personal data of
individuals obtained under
this Act shall be held and
maintained in accordance
with the principles of data
protection set out in the
Data Protection Act.
Basic Education s.79 Add the following new sub-section
Act, 2013 immediately after sub-section (2)—
(3) The Board shall deal with any
relevant personal data collected and so held
in the register according to the data
principles set out in the Data Protection
Act.

Universities Act, s.13 Add the following new sub-section
2012 immediately after sub-section (3) —

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2019 Data Protection No. 24
(3A) Any information containing
personal data presented to the Commission
shall be handled in accordance with data
protection principles set out in the Data
Protection Act.
Insert the following new sub-section
immediately after sub-section (6) —
(7) A record of depositors required
by an issuer under sub-section (1) shall be
issued and maintained in accordance with
the principles of data protection set out in
the Data Protection Act, 2019.
Insert the following new sub-section
immediately after sub-section (1)—
(2) The disclosure of information
under this Act shall be done according to
the data principles set out in the Data
Protection Act, 2019.
Insert the following new sub-section
immediately after sub-section (1)—
(2) The sharing of information by the
Centre shall be with adherence to the data
principles set out in the Data Protection
Act, 2019.
Insert the following new sub-section
immediately after sub-section (1)—
(2) the information collected on
natural persons under this section shall be
dealt according to the data principles set
out in the Data Protection Act, 2019.
Insert the following new paragraph
immediately after paragraph (e)—
(ee) ensure processing of personal data
of subscribers is in accordance
with principles set out under the
Data Protection Act, 2019.
Insert the following new paragraph
immediately after paragraph (c) —
(cc) to ensure necessary steps are taken
to secure the integrity of personal
data under their possession or

The Central s.36 (6)
Depositories
Act, 2000

s.47

Anti-Money s.40
Laundering and
Proceeds of
Crime Act, 2009

s.13

Kenya s.23 (2)
Information and
Communications
Act, 1998

s.25 (3)

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No. 24 Data Protection 2019
control through the adoption of
appropriate, reasonable, technical
and organizational measures to
prevent the loss of, damage to or
unauthorized destruction and
prevent any unlawful access to or
unauthorized processing of
personal data.

Insolvency Act, s.148 Insert the following new section
2015 immediately after section 148 —

148A The principles of personal
data protection set out in the Data
protection Act 2018 shall apply with
necessary modifications to the
processing and handling, by the
bankruptcy trustee, of the bankrupt’s
personal data.

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