M-Wakili

Kenya Information Communications Act Cap 2 411A - as Plain Text by MWakili

LAWS OF KENYA The Kenya InformaTIon and CommunICaTIons aCT Chapter 411a Revised Edition 2011 (2010) Published by the National Council for Law Reporting with the Authority of the Attorney General www.kenyalaw.org 2 CAP.

411A Kenya Information and Communications [Rev.

2011 CHAPTER 411A THE KENYA INFORMATION AND COMMUNICATIONS ACT ARRANGEMENT OF SECTIONS Part IPrelImInary Section 1Short title and commencement.

2Interpretation.

Part IICommunICatIons CommIssIon of Kenya 3Establishment of Commission.

4Headquarters.

5Object and purpose of the Commission.

5AMinister to issue policy guidelines.

5BIndependence of the Commission.

6Board of Directors.

7Powers of the Board.

8Conduct of business and affairs of the Board.

9Delegation by the Board.

10Remuneration of Board members.

11The Director-General.

12Secretary of the Board.

13Staff of the Commission.

14The Common seal of the Commission.

15Protection from personal liability.

16Liability for damages.

17Funds of the Commission.

18Financial year.

19Annual estimates.

20Accounts and audit.

21Investment of funds.

22Annual Reports.

Part IIIteleCommunICatIon servICes 23Provision of telecommunication services.

24Requirement of licence.

25Telecommunication licences.

26(Deleted).

27General regulations for telecommunication services.

Kenya Information and Communications CAP.

411A 3 Rev.

2011] Section Offences Relating to Telecommunications Service 28Obtaining service dishonestly.

29Improper use of system.

30Modication etc., of messages.

31Interception and disclosure.

32Tampering with telecommunication plant.

33Trespass and wilful obstruction of telecommunication ofcer.

34Prohibition of unlicensed telecommunication system.

Part IvradIo CommunICatIons 35Licensing requirements.

36Radio communication licence.

37Licences for scientic or research use.

38Regulations on radio communication.

39Regulations for radiation of electro-magnetic energy.

40Regulations with respect to resistance to interference.

41Enforcement of regulations as to use of apparatus.

42Onus of proof.

43Enforcement of regulations as to sales, etc.

by manufacturers and others.

44Unlawful sending of misleading messages, etc.

45Deliberate interference with radio communication.

46Extent of the application of provisions relating to radio communication.

Part Iv aBroadCastIng servICes 46AFunctions of the Commission in relation to broadcasting services.

46BClassication of broadcasting services.

46CRequirement of a broadcasting licence.

46DEligibility for licensing and considerations for grant of licence.

46EPublic broadcasting services.

46FCommunity broadcasting services.

46GPrivate broadcasting services.

46HCommission to prescribe programme code.

46IResponsibilities of broadcasters.

46JRevocation of licences.

46KRegulations on broadcasting.

46LRequirement for complaints procedure.

46MAccess to programmes.

46NRequirement for a licence for signal distribution.

4 CAP.

411A Kenya Information and Communications [Rev.

2011 Section 46OSignal distribution services.

46PRevocation of signal distribution licence.

46QOffences relating to broadcasting services.

46RTransitional provisions.

46SBroadcasting Content Advisory Council.

Part vPostal servICes 47Functions of the Commission in relation to postal services.

48Exclusive right to provide certain postal services.

49Requirement of licensee.

50Designation of public postal licensee.

51Licence to provide postal services.

52Conditions of licence.

General Provisions Relating to Postal Services 53Postage stamps and postal charges.

54Addressee may be liable for postage, etc.

55Postal articles not to be opened.

56Interception of postal articles in public emergency, etc.

57Article or material injurious to persons.

58Prohibited materials.

59Regulations prohibiting injurious articles.

60Material sent in contravention of this Act.

61Power to deal with postal articles containing anything in respect of which an offence is committed.

62Withholding postal articles until postage, etc.

is paid.

63Postal nancial services.

64Refund of wrong payment of money order.

65Proof of return, of postal articles.

66Regulations for postal services.

Offences Relating to Postal Services 67Operating without licence.

68Damaging letter box.

69Afxing materials on post ofce.

70Unlawful opening or delivery, etc.

of postal articles by employees of licensee.

71Transmitting offensive material by post.

72Unlawful opening of postal articles by non-employees of licensee.

73Using of ctitious stamps.

74Use of certain words.

75Transmitting prohibited articles by post.

Kenya Information and Communications CAP.

411A 5 Rev.

2011] Section 76Interfering with postal installation.

Part vIlICensIng and enforCement 77Application for licence.

78Notice of licence.

79Grant of licence.

80Duration of licence.

81Renewal of licence.

82Modication of conditions of licence.

83Register of licences.

83AEnforcement of licence conditions.

Part vIaeleCtronIC transaCtIons 83BApplication.

83CFunctions of the Commission in relation to electronic transactions.

83DRequirement for a licence.

83ELicence for electronic certication services.

83FLicence for country code top-level domain.

83GLegal recognition of electronic records.

83HRetention of electronic records.

83IRetention of information in original form.

83JFormation and validity of contracts.

83KRecognition of parties of electronic messages.

83LAttribution of electronic records.

83MAcknowledgement of receipt.

83NSecure electronic record.

83OCompliance with requirement for a signature.

83PLegal recognition of electronic signatures.

83QProtected systems.

83RRegulations for electronic signatures.

83SUse of electronic records and electronic signatures in Government and its agencies.

83T Electronic Gazette.

83UUnauthorized access to computer data.

83VAccess with intent to commit offences.

83WUnauthorized access to and interception of computer service.

83XUnauthorized modication of computer material.

83YDamaging or denying access to computer system.

83ZUnauthorized disclosure of password.

84AUnlawful possession of devices and data.

84BElectronic fraud.

84CTampering with computer source documents.

6 CAP.

411A Kenya Information and Communications [Rev.

2011 Section 84DPublishing of obscene information in electronic form.

84EPublication for fraudulent purpose.

84FUnauthorized access to protected systems.

84GRe-programming of mobile telephone.

84HPossession or supply of anything for re-programming mobile telephone.

84IBonade re-programming or possession.

Part vIBunIversal servICe fund 84JEstablishment of the Fund.

84KRevenue and expenditure of the Fund.

84LApplication for grant of fund loan.

84MConditions for grant of loan.

84NPenalties for delayed remittances.

84OFunds annual returns and audit.

84PRegulations with respect to the Fund.

Part vICfaIr ComPetItIon and equal treatment 84QGeneral prohibition on anti-competitive conduct.

84RCommission to ensure fair competition.

84SAnti-competitive conduct.

84TComplaints and investigation by the Commission.

84UDenial of access.

84VAnti-competitive practices and conduct.

84WRegulations on competition issues.

Part vIImIsCellaneous ProvIsIons 84National Communication Secretariat.

85Power of operator to use land.

85ACo-location.

86Procedure for using public land.

87Compulsory purchase of land.

88(Deleted).

89Entry and search of premises, etc.

90Seizure of apparatus, article or other property.

91Forfeiture of property used in commission of offence.

92Disposal of property seized under section 90.

93General restrictions on disclosure of information.

94Powers in relation to electricity undertakers, etc.

95Structures likely to interfere with telecommunication or postal services.

96Offences by companies.

97Property of the Commission in the custody of employee.

Kenya Information and Communications CAP.

411A 7 Rev.

2011] Section 98Limitation.

99Restriction on execution against property of Commission.

100Service of notice etc.

on Director-General.

101Service of notice by Director-General.

102Establishment and constitution of Appeals Tribunal.

102AUniversal Service Advisory Council.

103Repeal of Cap 411 and savings.

SCHEDULES 8 CAP.

411A Kenya Information and Communications [Rev.

2011 CHAPTER 411A THE KENYA INFORMATION AND L.N.

22/1999, COMMUNICATIONS ACT L.N.

39/1999, L.N.

84/1999, L.N.

63/2004, Commencement 1 of 2009, 6 of 2009, Sections 2, 3,4.

15th February, 1999 4 of 2012.

Section 5 sub-section (1) to (4).

5th February, 1999 Sections 6 to 22.

15th February, 1999 Sections 23 to 83.

26th April, 1999 Sections 84 to 102.

15th February, 1999 Sections 85 to 101.

26th April, 1999 Section 103.

1st July, 1999 An Act of Parliament to provide for the establishment of the Communications Commission of Kenya to facilitate the development of the information and communications sector (including broadcasting, multimedia, telecommunications and postal services) and electronic commerce, to provide for the transfer of the functions, powers, assets and liabilities of the Kenya Posts and Telecommunication Corporation to the Commission, the Telcom Kenya Limited and the Postal Corporation of Kenya, and for connected purposes ENACTED by the Parliament of Kenya as follows: Part IPrelImInary Short title and 1.

This Act may be cited as the Kenya Information and Commencement.

Communications Act, 1998 and shall come into operation on such date 1 of 2009, s.3.

as the Minister may, by notice in the Gazette, appoint and different dates may be appointed for different provisions.

Interpretation.

2.

(1) In this Act unless, the context otherwise requires 1 of 2009, s.4.

access in relation to any computer system, means instruct, communicate with, store data in, retrieve data from, or otherwise make use of any of the resources of the computer system; advanced electronic signature means an electronic signature which meets all the following requirements: (a) is uniquely linked to the signatory; (b) is capable of identifying the signatory; (c) it is created using means that the signatory can maintain Kenya Information and Communications CAP.

411A 9 Rev.

2011] under his sole control; and (d) it is linked to the data to which it relates in such a manner that any subsequent change to the data is detectable; agreement includes decisions or practices; 6; Board means the Board of Directors constituted under section broadcaster means any legal or natural person who composes or packages or distributes television or radio programme services for reception by the public or sections of the public or subscribers to such a service, irrespective of technology used; broadcasting means unidirectional conveyance of sounds or television programmes, whether encrypted or not by radio or other means of telecommunications, for reception by the public; broadcasting service means any service which consists of the broadcasting of television or sound broadcasting programs to the public, sections of the public or subscribers to such a service; broadcasting signal distribution means the process whereby the output signal of a broadcasting service is taken from the point of origin, being the point where such signal is made available in its nal content format, from where it is conveyed to any broadcast target area by means of a telecommunication process and includes multi-channel distribution; certicate means a record which is issued by a certication service provider for the purpose of supporting a digital signature which purports to conrm the identity or other signicant characteristics of the person who holds a particular key pair; identies the certication service provider issuing it; names or identies the person to whom it is issued; contains the public key of the person to whom it is issued; and is signed by a responsible ofcer of the certication service provider issuing it; certication service provider means a person who has been granted a licence to issue a digital signature certicate; Commission means the Communications Commission of Kenya established under section 3; community includes a geographically founded community or any group of persons or sector of the public having a specic, ascertainable common interest; 10 CAP.

411A Kenya Information and Communications [Rev.

2011 community broadcasting service means a broadcasting service which meets all the following requirements (a) is fully controlled by a non-prot entity and carried on for non-protable purposes; (b) serves a particular community; (c) encourages members of the community served by it or persons associated with or promoting the interests of such community to participate in the selection and provision of programmes to be broadcast in the course of such broadcasting service; and (d) may be funded by donations, grants, sponsorships or membership fees, or by any combination of the aforementioned; computer means any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, software and communication facilities which are connected or related as a system or network; computer service includes data processing and the storage or retrieval of data; computer system means a device or collection of devices including input and output devices but excluding calculators which are not programmable and capable of being used in conjunction with external les which contain computer programmes, electronic instructions and data that perform logic, arithmetic, data storage, data retrieval, communication control and other functions; country code top-level domain means top-level domain .ke used and reserved for Kenya; courier services means any specialised service for the collection, despatch, conveyance, handling and delivery of postal articles; customs law means any law relating to the collection of customs duties or transfer tax; data means information recorded in a format in which it can Kenya Information and Communications CAP.

411A 11 Rev.

2011] be processed by equipment operating automatically in response to instructions given for that purpose, and includes representations of facts, information and concepts held in any removable storage medium; Director-General means the Director General of the Commission appointed under section 6; document of title means a formal document that is considered sufcient proof that the person who possesses it is entitled to receive, hold, and dispose of the instrument and the goods that it covers; dominant telecommunications service provider means a licensee who has been declared by the Commission to be a dominant telecommunications service provider pursuant to section 84W (4) of this Act; e-Government services means public services provided electronically by a Ministry or Government department, local authority, or any body established by or under any law or controlled or funded by the Government; electronic means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities; electronic form with reference to information, means any information generated, sent, received or stored in magnetic, optical, computer memory, microlm or similar device; electronic Gazette means the Kenya Gazette published in electronic form; electronic record means a record generated in digital form by an information system, which can be transmitted within an information system or from one information system to another and stored in an information system or other medium; electronic signature means data in electronic form afxed to or logically associated with other electronic data which may be used to identify the signatory in relation to the data message and to indicate the signatorys approval of the information contained in the data message; encryption means a method transforming signals in a systematic way so that the signal would be unintelligible without a suitable receiving apparatus; equipment includes any appliance, apparatus or accessory used 12 CAP.

411A Kenya Information and Communications [Rev.

2011 or intended to be used for communication services; nancial year means a nancial year within the meaning of section 18; franking machine means a machine for the purpose of making impressions on postal articles to denote pre-payment of postage and includes any meter or meters and any franking or date-stamping die incidental thereto; free-to-air service means a service which is broadcast without encryption and capable of being received by conventional broadcasting receiving apparatus; function includes logic, control, arithmetic, deletion, storage and retrieval and communication or telecommunication to, from or within a computer system; Fund means the Universal Service Fund established by section 84J of this Act; information and communication technologies means technologies employed in collecting, storing, using or sending out information and include those involving the use of computers or any telecommunication system; installation or plant used for posts includes all buildings, lands, structures, machinery, equipment, boxes and receptacles used or intended for use in connection with the transmission of postal articles by post; intercept in relation to a function of a computer, includes listening to, or recording a function of a computer, or acquiring the substance, its meaning or purport of such function; Kenyan programme means sounds or vision or a combination of both whose content comply with the classication of local content as may be required by the Commission from time to time; letter means any written or printed communication conveying from one person to another particular information upon matters personal to such persons or information upon which it is intended that the recipient should reply, act or refrain from acting, but does not include any written or printed communication which is a newspaper or a periodical accompanied by any other communication; licence means any licence issued under this Act; Kenya Information and Communications CAP.

411A 13 Rev.

2011] mail bag means any bag, container, envelope or covering in which postal articles are conveyed; Minister means the Minister for the time being responsible for communications; modication means a modication of the contents of any computer system by the operation of any function of that computer system or any other computer system as a result of which (a) any program or data held in the computer system is altered or erased; (b) any program or data is added to its contents; or (c) any act occurs which impairs the normal operation of the computer system; parcel means a postal article which is posted at the ofce of a licensee as a parcel or is received at another ofce: Provided that the said parcel is not smaller than the minimum size or heavier than the maximum weight prescribed; password means any data by which a computer service or a computer system is capable of being obtained or used; possession, be in possession of and have in possession Cap.

63.

have the meanings assigned to such expressions in section 4 of the Penal Code; post (i) when used with reference to telecommunication includes any pole, standard, stay, strut or other above- ground contrivance for installing, carrying, supporting or suspending a telecommunication line; and (ii) when used with reference to the transmission of postal articles by post, means any system for the collection, despatch, conveyance, handling and delivery of postal articles; post ofce means any building, house, room, receptacle, vessel, vehicle or place where postal articles are received, delivered, sorted, made up or despatched; postage means the fee chargeable for the transmission by post 14 CAP.

411A Kenya Information and Communications [Rev.

2011 of postal articles; postage stamp means any label or stamp for denoting any postage or other sum payable in respect of a postal article, and includes an adhesive postage stamp or a stamp printed, impressed or otherwise indicated on a postal article, whether issued by the Government of Kenya or any other country; postal article means any article or thing transmissible by post, including but not limited to letters, aerogrammes, postcards and parcels but does include such article or thing as the Commission determines not to be transmissible by post.

postal service means any service by post; postcard means a card recognised as a postcard in accordance with the terms of the Convention regulating the affairs of the Universal Postal Union; posting box includes any pillar box, wall box, any other box or receptacle provided by or under the authority of the public postal licensee for the purpose of receiving postal articles for transmission by or under the authority of the public postal licensee; private broadcaster means a person licensed by the Commission under this Act to provide commercial broadcast services; private letter box/bag means any receptacle whether identied by a distinctive number or not rented to a person for the receipt of postal articles and capable of being used whether the person or company renting it has his business premises open or not; programme means sound, vision or a combination of both, intended to inform, educate or entertain, but does not include text or data; Cap.

221.

public broadcaster means the Kenya Broadcasting Corporation established by the Kenya Broadcasting Corporation Act; public broadcasting services means broadcasting services of the public broadcaster; public postal licensee means the Postal Corporation of Kenya established under the Postal Corporation of Kenya Act, 1998; public postal licensees installation or plant means any installation or plant used for postal purposes belonging to or used by Kenya Information and Communications CAP.

411A 15 Rev.

2011] the public postal licensee; radio-communication means the emitting or receiving over paths which are not provided by any material substance constructed or arranged for that purpose, of electro-magnetic energy of a frequency not exceeding three million megahertz being energy which either (i) is capable of being transmitted through a telecommunica- tion system; or (ii) is used in connection with the determination of position, bearing or distance, or for the gaining of information as to the presence, absence or, motion of any object or objects of any class; radio-communication apparatus means any apparatus capable of being used or adapted for radio communication and where the context so requires, includes a radio communication station; radio-communication station means any telecommunication station capable of being used or being adapted for radio communication; repository means a system for storing and retrieving certicates or other information relevant to certicates.

signatory means a person who holds a signature-creation device and acts either on his own behalf or on behalf of the natural or legal person or entity he represents; signature-creation data means unique data, such as codes or private cryptographic keys, which are used by the signatory to create an electronic signature; signature-creation device means congured software or hardware used to implement the signature-creation data; subscription management service means a service which consists of the provision of support services to a subscription broadcasting service which support services may include, but not limited to, subscriber management support, subscription fee collection, call centres, sales and marketing, and technical and installation support.

telecommunication apparatus means apparatus constructed or adapted for use in transmitting anything which is transmissible by a telecommunication system, or in conveying anything which is transmitted through such a system; 16 CAP.

411A Kenya Information and Communications [Rev.

2011 telecommunication line means any wire, cable, tube, pipe or other similar thing which is designed or adapted for use in connection with the operation of a telecommunication system or a radio-communication apparatus with any casing, coating, tube or pipe enclosing the same and any appliances and apparatus connected therewith for the same; and includes any structure, post or other thing in, by or from which any telecommunication and radio-communication apparatus is or may be installed, supported, carried or suspended; telecommunication ofcer means any person employed either permanently or temporarily by a telecommunication operator in connection with a telecommunication system licensed under section 79; telecommunication operator means a telecommunication operator licensed under section 79; telecommunication service means any of the following (i) a service consisting of the conveyance by means of a telecommunication system of anything falling within sub-paragraphs (i) to (v) in the denition of telecom- munication system; (ii) a service consisting of the installation, maintenance, adjustment, repair, alteration, moving, removal or re- placement of apparatus which is or is to be connected to a telecommunication system; or (iii) a directory information service, being a service consist- ing of the provision by means of a telecommunication system of directory information for the purposes of fa- cilitating the use of a service falling within sub paragraph (i) above and provided by means of that system; telecommunication system means a system for the conveyance, through the agency of electric, magnetic, electro-magnetic, electro- chemical or electro-mechanical energy, of (i) speech, music and other sounds; (ii) visual images; (iii) data; (iv) signals serving for the impartation (whether as between Kenya Information and Communications CAP.

411A 17 Rev.

2011] persons and persons, things and things or persons and things) of any matter otherwise than in the form of sound, visual images or data; or (v) signals serving for the activation or control of machinery or apparatus and includes any cable for the distribution of anything falling within (i) to (iv) above; Tribunal means the Appeals Tribunal set up under section 102 of this Act; vessel includes any ship, boat, air-cushioned vehicle or oating rig or platform used in navigation.

(2) For the purpose of this Act, a telecommunication system is operated by the person who controls and manages it by himself or through servants or agents.

(3) In this Act (a) a postal article shall be deemed to have been delivered (i) to the addressee, if it is delivered into the private letter box of the addressee, leaving it at the house, or ofce of the addressee as set out thereon, or with his employee or agent or other persons authorised to receive it and, where the addressee is a guest or is resident at a hotel, hostel or lodgings, it is left with the proprietor or manager thereof or with his agent; or (ii) to a postal services operator licensed under section 51, if it is deposited into a posting box or handed over to an employee or agent of a postal services operator authorised to receive it; (b) a postal article shall be deemed to be in the course of transmission by post from the time of its being delivered to the public postal licensee until the time of its being delivered to the addressee, or it is returned to the sender or otherwise disposed of under the provisions of this Act.

(c) save as otherwise agreed to between the originator and the addressee (i) the dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator; 18 CAP.

411A Kenya Information and Communications [Rev.

2011 (ii) if the addressee has a designated computer resource for the purpose of receiving an electronic record, receipt occurs at the time when the electronic record enters the designated computer resource; or (iii) if the electronic record is sent to a computer resource of the addressee that is not the designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee; or (iv) if the addressee has not designated a computer resource along with specied timings, if any, receipt occurs when the electronic record enters the computer resource of the addressee; (v) an electronic record is deemed to be dispatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business; and (vi) the provisions of subparagraph (v) shall apply notwith- standing that the place where the computer resource is located may be different from the place where the electronic record is deemed to have been received under subparagraphs (ii) or (iii).

Part IICommunICatIons CommIssIon of Kenya Establishment of 3.

(1) There is hereby established a Commission to be known as Commission.

the Communications Commission of Kenya.

(2) The Commission 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 and disposing of movable and immovable property; (c) borrowing or lending money; and (d) doing or performing all such other things or acts for the proper performance of its functions under this Act which may be lawfully done or performed by a body corporate.

Headquarters.

4.

The Headquarters of the Commission shall be in Nairobi.

Kenya Information and Communications CAP.

411A 19 Rev.

2011] 5.

(1) The object and purpose for which the Commission is Object and purpose of the Commission.

established shall be to licence and regulate postal, information and communication services in accordance with the provisions of this 1 of 2009, s.5.

Act.

(2) The Commission shall have all powers necessary for the performance of its functions under this Act.

(3) The Commission may enter into association with such other bodies or organizations within or outside Kenya as the Commission may consider desirable or appropriate and in furtherance of the purpose for which the Commission is established.

(4) The Commission shall, in the performance of its functions under this Act have regard to (a) any policy guidelines of a general nature relating to the provisions of this Act notied to it by the Minister and published in the Gazette; (b) Kenyas obligations under any international treaty or agreement relating to the provisions of telecommunication, radio and postal services.

(5) (Deleted by 1 of 2009, s.5).

5A.

(1) The Minister may issue to the Commission policy Minister to issue guidelines of a general nature relating to the provisions of this Act as policy guidelines.

may be appropriate.

1 of 2009, s.6.

(2) The guidelines referred to under subsection (1) shall be in writing and shall be published in the Gazette.

5B.

Except as provided for under this Act or any other law, the Independence of the Commission shall exercise its functions independent of any person or Commission.

body.

1 of 2009, s.6.

6.

(1) The management of the Commission shall vest in a Board Board of Directors.

of Directors of the Commission which shall consist of 1 of 2009, s.7.

(a) a chairman who shall be appointed by the President; (b) the Director-General who shall be appointed by the Minister; 20 CAP.

411A Kenya Information and Communications [Rev.

2011 (c) the Permanent Secretary in the ministry for the time being responsible for information and communications or his representative; (d) the Permanent Secretary in the ministry for the time being responsible for nance or his representative; (e) the Permanent Secretary in the ministry for the time being responsible for internal security or his representative; (f) at least seven other persons, not being public ofcers, appointed by the Minister and of whom (i) at least one shall have knowledge or experience in matters relating to law; (ii) at least one shall have knowledge or experience in postal services; (iii) at least one shall have knowledge or experience in matters relating to broadcasting; (iv) at least one shall have knowledge or experience in matters relating to radio communications; (v) at least one shall have knowledge or experience in matters relating to information technology or computer science; (vi) at least one shall have knowledge or experience in matters relating to telecommunications; and (vii) at least one shall have knowledge or experience in consumer protection matters.

(g) (Deleted by 1 of 2009, s.7) (2) The Minister shall have due regard to registered societies representing such matters in exercising his powers under this section.

Powers of the Board.

7.

The Board shall have all the powers necessary for the performance of the functions of the Commission under this Act and in particular, but without prejudice to the generality of the foregoing, the Board shall have power to (a) manage, control and administer the assets of the Commission in such manner and for such purposes as best promote the Kenya Information and Communications CAP.

411A 21 Rev.

2011] purposes for which the Commission is established; (b) receive any gifts, grants, donations or endowments made to the Commission or any other monies in respect of the Commission and make disbursements therefrom in accordance with the provisions of this Act; (c) determine the provisions to be made for capital and recurrent expenditure and for reserves of the Commission; (d) open a banking account or banking accounts for the funds of the Commission; and (e) invest any monies of the Commission not immediately required for the purposes of this Act in the manner provided in section 21.

8.

The conduct and regulation of the business and affairs of the Conduct of business and affairs of the Board shall be as provided in the First Schedule, but subject thereto, Board.

the Board may regulate its own procedure.

9.

The Board may, by resolution either generally or in any Delegation by the Board.

particular case, delegate to any committee of the Board or to any member, ofcer, employee or agent of the Commission the exercise of any of the powers or the performance of any of the functions of duties of the Board under this Act.

10.

The Board, in consultation with the Minister, shall pay to Remuneration of Board members.

members of the Board such remuneration, fees or allowances for expenses as it may determine.

11.

(1) The Director-General shall be the chief executive of the The Director- General.

Commission and shall, subject to the directions of the Commission, be responsible for the day to day management of the Commission.

(2) The Director-General shall be an ex-ofcio member of the Board but shall have no right to vote at any meeting of the Board.

12.

(1) There shall be a Secretary to the Board who shall be Secretary to the appointed on such terms and conditions as the Board may determine Board.

and who shall perform such duties as the Board may, from time to time, assign.

(2) In the performance of his duties under this Act, the Secretary shall be responsible to the Director-General.

13.

The Board may appoint such ofcers or servants as are Staff of the Commission.

22 CAP.

411A Kenya Information and Communications [Rev.

2011 necessary for the proper discharge of the functions of the Commission under this Act or any other written law, upon such terms and conditions of service as the Board may determine.

The common seal of 14.

(1) The common seal of the Commission shall be kept in the Commission.

such custody as the Board may direct and shall not be used except on the order of the Board.

(2) The common seal of the Commission, when afxed to a document and duly authenticated, shall be judicially and ofcially noticed and unless and until the contrary is proved, any necessary order or authorisation by the Board under this section shall be presumed to have been duly given.

Protection from 15.

Subject to section 16, no matter or thing done by a member personal liability.

of the Board or by any ofcer, employee or agent of the Commission shall, if the matter or thing is done bona de for executing the functions, powers or duties of the Commission under this Act, render the member, ofcer, employee or agent or any person acting on their directions personally liable to any action, claim or demand whatsoever.

Liability for 16.

The provisions of section 15 shall not relieve the Commission damages.

of the liability to pay compensation or damages to any person for any injury to him, his property or any of his interests caused by the exercise of any power conferred by this Act or any other written law or by the failure, whether wholly or partially, of any works.

Funds of the 17.

The funds of the Commission shall consist of Commission.

(a) such moneys or assets as may accrue to or vest in the Commission in the course of the exercise of its powers or the performance of its functions under this Act; (b) such sums as may be payable to the Commission pursuant to this Act or any other written law, or pursuant to any gift or trust; (c) such moneys as may be provided by Parliament for the purposes of the Commission; (d) all moneys from any other source provided for or donated or lent to the Commission.

Financial year.

18.

The nancial year of the Commission shall be the period of twelve months ending on the thirtieth June in each year.

Annual estimates.

19.

(1) At least three months before the commencement of each Kenya Information and Communications CAP.

411A 23 Rev.

2011] nancial year, the Board shall cause to be prepared estimates of the revenue and expenditure of the Commission for that year.

(2) The annual estimates shall make provision for all estimated expenditure of the Commission for the nancial year concerned, and in particular shall provide (a) for the payment of the salaries, allowances and other charges in respect of the staff of the Commission and the members of the Board; (b) for the payment of the pensions, gratuities and other charges in respect of retirement benets to staff of the Commission; (c) for the proper maintenance of the buildings and grounds of the Commission; (d) for the proper maintenance, repair and replacement of the equipment and other movable property of the Commission; (e) for the creation of such reserve funds to meet future or contingent liabilities in respect of retirement benets, insurance or replacement of buildings or equipment or in respect of such other matters as the Board may deem t.

(f) for the payment of the salaries, allowances and other charges in respect of the staff of the National Communications Secretariat established under section 84, and such other expenses of the Secretariat as may be approved by the Minister from time to time; and (g) for the payment of salaries, allowances and other charges in respect of the staff of the Tribunal and such other expenses of the Tribunal as may be approved by the Minister from time to time.

(3) The annual estimates shall be submitted to the Board for approval before the commencement of the nancial year to which they relate: Provided that once approved, the sum provided in the estimates shall not be increased without the prior consent of the Board.

(4) No expenditure shall be incurred for the purposes of the 24 CAP.

411A Kenya Information and Communications [Rev.

2011 Commission except in accordance with the annual estimates approved under subsection (3) or in pursuance of an authorisation of the Board.

Accounts and audit.

20.

(1) The Board shall cause to be kept all proper books and records of accounts of the income, expenditure, assets and liabilities of the Commission.

(2) Within a period of three months after the end of each nancial year, the Board shall submit to the Auditor-General (Corporations) or to an auditor appointed under subsection (3), the accounts of the Commission together with (a) a statement of income and expenditure during that year; and (b) a statement of the assets and liabilities of the Commission on the last day of the nancial year.

(3) The accounts of the Commission shall be audited by the Auditor-General (Corporations) or by an auditor appointed by the Board with the written approval of the Auditor-General (Corporations).

(4) The appointment of an auditor shall not be terminated by the Board without the prior written consent of the Auditor-General (Corporations).

(5) The Auditor-General (Corporations) may give general or special directions to an auditor appointed under subsection (3) and the auditor shall comply with those directions.

(6) An auditor appointed under subsection (3) shall report directly to the Auditor-General (Corporations) on any matter relating to the directions given under sub-section (5) of this section.

(7) Within a period of six months after the end of the nancial year, the Auditor-General (Corporations) shall report on the examination and audit of the accounts of the Commission to the Board and to the Minister, and in the case of an auditor appointed under subsection (3), the auditor shall transmit a copy to the report to the Auditor-General (Corporations).

(8) Nothing in this Act shall be construed to prohibit the Auditor-General (Corporations) from carrying out an inspection of the Commissions accounts or records whenever it appears to him desirable and the Auditor-General (Corporations) shall carry out such an inspection at least once every six months.

Kenya Information and Communications CAP.

411A 25 Rev.

2011] (9) Notwithstanding anything in this Act, the Auditor-General (Corporations) may transmit to the Minister a special report on any matters incidental to his powers under this Act, and section 19 (3) and (4) of the Exchequer and Audit Act shall, mutatis mutandis, apply to Cap.

412.

any report made under this section.

(10) The Minister shall lay the audit report before the National Assembly as soon as reasonably practicable after the report is submitted to him under this section.

(11) The fee for any auditor, not being a public ofcer, shall be determined and paid by the Board.

21.

(1) The Board may invest any of the funds of the Commission Investment of funds.

which are not immediately required for its purposes in such securities as the Treasury may, from time to time, approve.

(2) The Board may place on deposit with such bank or banks as it may determine, any moneys not immediately required for the purposes of the Commission.

22.

(1) The Board shall, within three months after the end of Annual Report.

each nancial year, prepare and submit to the Minister a report of the operations of the Board for the immediately preceding year.

(2) The Minister shall lay the annual report before the National Assembly within three months of the day the Assembly next sits after the report is presented to him.

Part IIIteleCommunICatIon servICes 23.

(1) The Commission shall, so far as is reasonably practicable, Provision of telecommunication ensure there are provided throughout Kenya, such telecommunication services.

services and in particular, emergency, public payphone and directory information services, as are reasonably necessary to satisfy the public demand thereof.

(2) Without prejudice to the generality of subsection (1), the Commission shall (a) protect the interests of all users of telecommunication services in Kenya with respect to the prices charged for and the quality and variety of such services; (b) maintain and promote effective competition between persons engaged in commercial activities connected with telecommunication services in Kenya in order to ensure 26 CAP.

411A Kenya Information and Communications [Rev.

2011 efciency and economy in the provision of such services and to promote research and development in relation thereto; (c) encourage private investment in the telecommunication sector; (d) promote the provision of international transit services by persons providing telecommunication services in Kenya; (e) enable persons providing telecommunication services or producing telecommunication apparatus in Kenya to compete effectively in the provision of such services or apparatus outside Kenya; Requirement of 24.

(1) No person shall licence.

(a) operate a telecommunication system; or 1 of 2009, s.8.

(b) provide any telecommunication services except in accordance with a valid licence granted under this Act.

(2) A person who contravenes any of the provisions of this section commits an offence and shall be liable on conviction to a ne not exceeding one million shillings, or to imprisonment for a term not exceeding ve years, or to both.

Telecommunication 25.

(1) The Commission may, upon application in the prescribed Licences.

manner and subject to such conditions as it may deem necessary, grant licences under this section authorising all persons, whether of a specied class or any particular person to (a) operate telecommunication systems; or (b) provide telecommunication services, of such description as may be specied in the licence.

(2) A licence granted under subsection (2) (a) may authorise (a) the provision, by means of any telecommunication system to which the licence relates, of any telecommunication services of a description specied in the licence; and (b) the connection to any telecommunication system to which the licence relates of Kenya Information and Communications CAP.

411A 27 Rev.

2011] (i) any other telecommunication systems of a description specied in the licence; and (ii) any telecommunication apparatus of a description speci- ed in the licence.

(3) A licence granted under this section may include conditions requiring the licensee (a) to provide the telecommunication services specied in the licence or of a description so specied; (b) to interconnect to the telecommunication system to which the licence relates, or to permit the connection to such system, of such other telecommunication systems and apparatus as are specied in the licence or are of a description so specied, either without charge or subject to a reasonable charge to be determined in accordance with the method specied in the licence; (c) to permit the provision by means of the telecommunication system or telecommunication apparatus connected thereto of such services as are specied or of a description so specied; (d) to pay such fees as the Commission may prescribe; and (e) to fulll such other conditions as the Commission may prescribe.

(4) A licence granted under this section shall, unless earlier revoked in accordance with any term in that regard contained in the licence, continue in force for such period as may be specied in the licence.

(5) The Commission may, renew, vary, modify or revoke any licence granted under this Act in accordance with the provisions of this Act.

26.

(Deleted by 1 of 2009, s.9.) 27.

(1) The Minister in consultation with the Commission General may make regulations generally with respect to telecommunication regulations for services.

telecommunications services.

4 of 2012, s.

52.

28 CAP.

411A Kenya Information and Communications [Rev.

2011 (2) Without prejudice to the generality of sub-section (1), the Minister in consultation with the Commission may make regulations with respect to (a) the running of telecommunication systems; (b) the privacy of telecommunication; (c) the provision of telecommunication services pursuant to the provisions of section 23 and in particular, the manner in which such services shall be offered and performed, the issue of licences and the payment of fees in respect thereof, and such other matters as it deems t; (d) the period during which and conditions subject to which messages and papers relating to telecommunication services belonging to, or in the custody of telecommunication operators shall be preserved; (e) the issue, variation and withdrawal of approvals in respect of contractors for relevant operations in connection with any telecommunication system and the maintenance of registers of such contractors; (f) fees and other charges for any matter permitted or matters required to be done under this Act in relation to telecommunication services; (g) the form of any licence, notice, approval, certicate, authority or other written document required or permitted to be issued by or submitted to the Commission in relation to telecommunication services.

(h) the registration of subscribers to telecommunication services.

(3) Regulations under this section may make different provisions with respect to different classes or descriptions of telecommunication systems, apparatus or services.

(4) Any person who contravenes any regulation made under this section commits an offence and shall be liable on conviction to a ne not exceeding three hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.

Kenya Information and Communications CAP.

411A 29 Rev.

2011] Offences Relating to Telecommunications Services 28.

A person who dishonestly facilitates or obtains a service Obtaining service provided by a person authorised under this Act to provide dishonestly.

telecommunication services with intent to avoid payment of any charge 1 of 2009, s.10.

applicable to the provision of that service commits an offence and shall be liable on conviction to a ne not exceeding one million shillings, or to imprisonment for a term not exceeding ve years, or to both.

29.

A person who by means of a licensed telecommunication Improper use of system system.

(a) sends a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person commits an offence and shall be liable on conviction to a ne not exceeding fty thousand shillings, or to imprisonment for a term not exceeding three months, or to both.

30.

A person engaged in the running of a licensed telecommunication Modication etc., of messages.

system who, otherwise than in the course of his duty, intentionally modies or interferes with the contents of a message sent by means of that system, commits an offence and shall be liable on conviction to a ne not exceeding three hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.

31.

A licensed telecommunication operator who otherwise than Interception and in the course of his business disclosure.

(a) intercepts a message sent through a licensed telecommunication system; or (b) discloses to any person the contents of a message intercepted under paragraph (a); or (c) discloses to any person the contents of any statement or account specifying the telecommunication services provided by means of that statement or account, commits an offence and shall be liable on conviction to a ne not exceeding three hundred thousand shillings or, to imprisonment for a term not exceeding three years, or to both.

30 CAP.

411A Kenya Information and Communications [Rev.

2011 Tampering with 32.

A person who, with intent to telecommunication plant.

(a) prevent or obstruct the transmission or to delay any message; or (b) intercept or acquaint himself with the contents of any message; or (c) commit mischief, damages, removes, tampers with, touches or in any way whatsoever interferes with any telecommunication apparatus or telecommunication line, post or other thing whatsoever, being part of or used in or about any licensed telecommunication system or in the use thereof, commits an offence and shall be liable on conviction to a ne not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.

Trespass and wilful 33.

Any person who obstruction of telecommunication (a) without permission, enters the equipment room of a ofcer.

telecommunication operator; or 1 of 2009, s.11.

(b) enters any enclosure around the telecommunication ofce in contravention of any rule or notice to the contrary; or (c) refuses to leave such equipment room or enclosure on being requested to do so by any telecommunication ofcer; or (d) willfully obstructs any such telecommunication ofcer or a telecommunication operator in the performance of his duty, commits an offence and shall be liable on conviction to a ne not exceeding three hundred thousand shillings, or to imprisonment for a term not exceeding one year, or to both.

Prohibition 34.

(1) A person who, while not holding a valid licence of unlicensed telecommunication under section 25, runs a telecommunication system or provides a system.

telecommunication service, commits an offence.

1 of 2009, s.12.

(2) Any person who runs a telecommunication system in accordance with a licence granted under section 25 of this Act shall commit an offence if (a) that person provides telecommunication services which are not of a description specied in the licence; or Kenya Information and Communications CAP.

411A 31 Rev.

2011] (b) there is connected to the licensed system, any telecommunication system or, as the case may be, any telecommunication apparatus which is not of a description so specied in the licence.

(3) A person convicted of an offence under this section shall, on conviction be liable to a ne not exceeding one million shillings, or to imprisonment for a term not exceeding ve years, or to both.

Part IvradIo CommunICatIon 35.

(1) Subject to subsection (2), no person shall, establish or use Licensing any radio communication station or apparatus except in accordance with requirements.

the terms of a licence granted under section 36.

(2) A person who contravenes the provisions of subsection (1) commits an offence and shall be liable on conviction to a ne not exceeding ve million shillings, or to imprisonment for a term not exceeding three years, or to both.

36.

(1) The Commission may, on application in the prescribed Radio communication manner, grant a licence authorizing any person or persons of a specied licence.

class to establish or to use any radio communication station or apparatus or to install or use any apparatus for radio communication.

(2) A licence granted under this section may be issued subject to such terms, conditions and limitations as the Commission may think t, including (a) in the case of a licence to establish a station, limitations as to the position and nature of the station, the purposes for which, the circumstances in which, and the persons by whom the station may be used, and the apparatus which may be imported, installed or used therein; and (b) in the case of any other licence, limitations as to the apparatus which may be installed or used, and the places where, the purposes for which, the circumstances in which and the persons by whom the apparatus may be used.

(3) A radio communication licence shall, unless earlier revoked in accordance with any term in that regard contained in the licence, continue in force for such period as may be specied therein.

(4) Subject to the provisions of this Act, the Commission may renew or revoke a licence issued under this Part, or vary or modify any 32 CAP.

411A Kenya Information and Communications [Rev.

2011 conditions attached thereto.

Licenses for scientic 37.

(1) Where an application for the grant or renewal of a radio or research use.

communication licence is made to the Commission by any person, and the Commission is satised that the purpose of the licence is to enable the applicant to conduct experiments in radio communications for the purpose of scientic research, the Commission shall subject to subsection (2) not refuse to grant or renew the licence, and shall not revoke the licence when granted and no sum shall be payable under any regulations in respect of such licence except the fee for the grant or the renewal thereof.

(2) Nothing in subsection (1) shall prevent the Commission from refusing to grant or renew, or from revoking, a radio communication licence if the applicant has, whether before or after the grant or last renewal of the licence, been convicted of any offence under this Act, whether in relation to any radio communication apparatus covered by such licence or any other radio communication apparatus, or has been convicted of using any apparatus for the purpose of interfering with any radio-communication.

(3) Nothing in subsection (1) shall limit the discretion of the Commission as to the conditions which it attaches to any radio communication licence or its power to vary the conditions of any such licence.

Regulations on radio 38.

(1) The Minister in consultation with the Commission may communication.

make regulations generally with respect to radio communication and, 1 of 2009, s.13.

without prejudice to the generality of the foregoing, with respect to (a) the fees or sums to be paid by a person to whom a radio- communication licence is granted on the grant or renewal of such licence and the conditions on which any such licence may be granted, renewed or revoked; (b) anything which may or may not be done in connection with the use of any radio communication station or apparatus and in particular, requiring the use of any such station or apparatus to cease on the demand in that behalf by any authorised employee of the Commission; (c) imposing on the person to whom a radio communication licence is granted with respect to any radio communication station or apparatus, or who is in possession or control of any radio communication station or apparatus, obligations as to permitting and facilitating the inspection of such station or apparatus, as to the conditions in which the radio station or Kenya Information and Communications CAP.

411A 33 Rev.

2011] apparatus is kept and, in the case of a station or apparatus for the establishment, installation or use of which a licence is necessary, as to the production of the licence or of such other evidence of the licensing of the station or apparatus as may be prescribed by the regulations; (d) where sums are or may become due from the person to whom a radio communication licence is granted after the grant or renewal thereof, requiring that person to keep and produce such accounts and records as may be specied in the regulations; (e) requiring the person to whom a radio communication licence authorising the establishment or use of a station has been granted, to exhibit at the station such notices as may be specied in the regulations; (f) regulating the use on board any vessel or aircraft, other than a vessel or aircraft registered or licenced in Kenya, within the limits of Kenya and territorial waters adjacent thereto, of radio communication apparatus on board such vessel or aircraft; (g) controlling the importation, acquisition, manufacture and sale, letting on hire or other disposition of radio communication apparatus of any kind, or the possession, use or installation of such, and different provisions may be made by such regulations for different classes of cases; (h) the licensing and fees in respect thereof, of dealers in radio communication apparatus and the sale, transfer or use of such apparatus; (i) the conduct of examinations for radio communication operators, the content of such examination and the issue of certicates of competence in respect thereof; (j) the issue, variation and withdrawal of approvals in respect of radio communication stations and radio communication apparatus and apparatus for connection to any telecommunication system licensed under this Act; Provided that nothing in any such regulations shall require any person to concede any form of right of entry into a private dwelling house for the purpose of permitting or facilitating the inspection of any radio communication apparatus not designed or adapted for emission.

34 CAP.

411A Kenya Information and Communications [Rev.

2011 (2) Any person who contravenes any regulations made under this section, or causes or permits any radio communication station or apparatus to be used in contravention of any such regulations, commits an offence and shall be liable on conviction to a ne not exceeding one million shillings, or to imprisonment for a term not exceeding ve years, or to both.

Regulations for 39.

(1) The Minister in consultation with the Commission may radiation of electro- make regulations for the following purposes magnetic energy.

(a) for prescribing the requirements to be complied with in the use of any apparatus to which this section applies; (b) for prescribing the requirements to be complied with in the case of any apparatus to which this section applies if the apparatus is to be sold or offered or advertised for sale otherwise than for export, or let or hire or offered or advertised for letting or hire by any person who in the course of business manufactures, assembles or imports such apparatus.

(2) Regulations made under subsection (1) shall make provisions to ensure that the use of the apparatus does not cause undue interference with radio communication and may in particular include (a) requirements as to the maximum intensity of electromagnetic energy of any specied frequencies which may be emitted in any direction from the apparatus while it is in use; and (b) in the case of any apparatus, the power for which is supplied from electric supply lines, requirements as to maximum electro-magnetic energy of any specied frequencies which may be injected into those lines by the apparatus, and different requirements may be prescribed for different circumstances and in relation to different classes or descriptions of apparatus, different districts or places and different times of use.

(3) The apparatus to which this section applies shall be such apparatus, other than radio communication apparatus, as may be specied in the regulations, being apparatus generating or designed to generate or liable to generate fortuitously electro-magnetic energy at frequencies of not more than three million megahertz per second and references in this subsection to apparatus include references to any form of electric supply line.

(4) It shall not be unlawful for any person to use any apparatus Kenya Information and Communications CAP.

411A 35 Rev.

2011] to which this section applies or to sell, offer, advertise for sale, let on hire or offer or advertise, such apparatus for letting on hire, by reason only that it does not comply with the requirements applicable under any regulations made under this section, but such non-compliance shall be a ground for the giving of a notice under section 41 or 43 of this Act, as the case may be.

40.

(1) The Commission may, by regulations, prescribe technical Regulations with requirements to be complied with in the case of radio communication respect to resistance to interference.

apparatus specied in the regulations.

(2) The technical requirements in respect of any apparatus shall be such as appear to the Commission to be appropriate for the purpose of minimising so far as practicable, the risk of interference, arising from lawful use of any other apparatus to which the requirements apply, or any apparatus used in connection with it and which it is designed or adapted to receive.

(3) Any person who, in the course of business (a) sells or offers for sale (otherwise than for export) any apparatus which does not comply with the technical requirements applicable to it under regulations made under this section; (b) lets on hires or offers to let or hire any such apparatus; or (c) indicates, whether by display of the apparatus or by any form of advertisement, his willingness to do anything in relation to any such apparatus, commits an offence and shall be liable on conviction to a ne not exceeding one million shillings, or to imprisonment for a term not exceeding three years, or to both.

(4) In any proceedings for an offence under this section brought against any person other than one who in the course of business has manufactured, assembled or imported, the apparatus to which the proceedings relate, it shall be a defense for the accused person to show that he did not know and could not, with reasonable care, have ascertained that the apparatus did not comply with the requirements in question.

(5) In this section apparatus means any radio communication station or any radio communication apparatus and includes any apparatus designed or adapted for use in connection with any radio communication station and radio communication apparatus.

36 CAP.

411A Kenya Information and Communications [Rev.

2011 Enforcement of 41.

(1) If the Commission is of the opinion regulations as to use of apparatus.

(a) that any apparatus does not comply with the requirements applicable to it under regulations made for the purpose under subsection (1) of section 40; or (b) that either: (i) the use of the apparatus is likely to cause undue interfer- ence with any radio communication used for the purpose of any safety of life service or for any purpose on which the safety of any person or of any vessel, aircraft or vehicle may depend; or (ii) the use of the apparatus has caused or is causing undue in- terference with any other radio communication apparatus in circumstances where all reasonable steps to minimise interference have been taken in relation to the situation or apparatus receiving such radio-communication, it may serve on the person in whose possession the apparatus is, a notice in writing requiring that, after a date xed by the notice, not being less than thirty days from the date of service thereof, the apparatus shall not be used, whether by the person to whom the notice is given or otherwise, or shall only be used in such manner, at such times and in such circumstances as may be specied in the notice: Provided that if the Commission is satised that the use of the apparatus in question is likely to cause undue interference with any radio communication used for the purpose of any safety-of-life service or for any purpose on which the safety of any person or of any vessel, aircraft or vehicle may depend, the date to be xed by the notice may be the date of the service thereof.

(2) A notice under subsection (1) may be revoked or varied by a subsequent notice in writing by the Commission, served on the person in whose possession the apparatus then is: Provided that where a notice under this section has the effect of imposing any additional restrictions on the use of the apparatus, the provisions of subsection (1) relating to the coming into force of the notice shall apply in relation to the subsequent notice as if it had been a notice served under subsection (1).

(3) Where a notice has been given under subsection (1), any person having possession of, or any interest in, the apparatus to which the notice relates may, at any time, whether before or after the date xed by such notice, by notice in writing served on the Commission, show reasons Kenya Information and Communications CAP.

411A 37 Rev.

2011] why the apparatus in question complies with the requirements applicable to it under the regulations and if the Commission is satised that (a) the apparatus in question so complies, it shall revoke the notice; or (b) the said requirements ought to be relaxed in relation to the apparatus, may revoke the notice or vary it in such manner as the Commission may deem t: Provided that, nothing done under this subsection shall prevent any person from serving another notice and shall not, where the Commission is satised that there has been a change in the circumstances, prevent the Commission from giving a further notice.

(4) A revocation or variation made under subsection (2) or (3) may be absolute or may be conditional on such steps being taken in relation to the apparatus or on the apparatus being made to comply with such requirements as may be specied in the direction and any questions as to whether or not the apparatus has been made to comply with the requirements shall, on the application of the Director-General or of any person having possession of or any interest in the apparatus, be determined by the Tribunal.

(5) Any person who, knowing that a notice of the Commission under this section is in force with respect to any apparatus, uses such apparatus, or causes or permits it to be used in contravention of the notice, commits an offence and shall be liable on conviction to a ne not exceeding ve hundred thousand shillings, or to imprisonment for a term not exceeding three years, or to both.

42.

(1) In any proceedings arising from the provisions of this Onus of proof.

Part (a) the occupier of any dwelling house or premises in which there is any radio-communication apparatus shall be deemed to be in possession thereof, unless he satises the court that he was not aware and could not with reasonable diligence have become aware of the presence in the dwelling house or premises, of the apparatus in question; (b) any radio-communication apparatus which if fully assembled and in working order, would be a radio communication station, shall not, unless completely dismantled, cease to be a radio communication station by reason of the fact that it is temporarily incapable of transmitting or receiving electromagnetic waves owing to a defect or absence of 38 CAP.

411A Kenya Information and Communications [Rev.

2011 some part.

Enforcement of 43.

(1) If the Commission is of the opinion that any radio regulations as communication apparatus does not comply with the requirements applicable to it under regulations made under section 40, the Commission to sales, etc.

by manufacturers and may serve on any person who has manufactured, assembled or imported others.

such apparatus in the course of business, a notice in writing prohibiting him from selling that apparatus or offering or advertising it for sale or letting it on hire or offering or advertising it for letting on hire.

(2) The provisions of subsections (2) to (5) of section 41 shall apply with necessary modications to the provisions of this section lawfully.

Unlawfully sending 44.

Any person who of misleading (a) by means of radio communication, sends or attempts to send messages, etc.

any message which to his knowledge is false or misleading 1 of 2009, s.14.

and is to his knowledge likely to prejudice the efciency of any safety-of-life service or endanger the safety of any person, or of any vessel, aircraft or vehicle, and, in particular, any message which to his knowledge falsely suggests that a vessel or aircraft is in distress or in need of assistance or is not in distress or not in need of assistance; or (b) otherwise than under the authority of the Minister for the time being responsible for internal security (i) uses any radio communication apparatus with intent to obtain information as to the contents, sender or addressee of any message, (whether sent by means of radio com- munication or not) which neither the person using the station or apparatus nor any person on whose behalf he is acting is authorized to receive; or (ii) except in the course of legal proceedings or for the pur- poses of any report thereon, discloses any information as to the contents, sender or addressee of any such message, being information which would not have come to his knowledge but for the use of the radio communication station or radio communication apparatus by him or by any other person acting on his behalf, commits an offence and shall be liable on conviction to a ne not exceeding one million shillings, or to imprisonment for a term not exceeding ve years, or both.

Kenya Information and Communications CAP.

411A 39 Rev.

2011] 45.

Any person who uses any station or apparatus for interfering Deliberate with any radio communication commits an offence and shall be liable interference with radio communication.

on conviction to a ne not exceeding one million shillings, or to 1 of 2009, s.15.

imprisonment for a term not exceeding ve years or to both.

46.

(1) The provisions relating to radio communication shall Extent of the apply application of provisions relating to (a) to all radio communication stations and radio communication radio communication.

apparatus in or over, or for the time being in or over Kenya or the territorial waters adjacent thereto; and (b) subject to any limitations which the Commission may, by regulations, determine, to all radio communication stations and radio communication apparatus which is released from within Kenya or its territorial waters, or from any vessel or aircraft which is registered in Kenya.

(2) Without prejudice to the liability of any other person, in the event of the contravention of the provisions of subsection (1) or of any regulations or orders made thereunder, occurring in relation to any radio-communication station or radio communication apparatus on board or released from any vessel or aircraft, the captain or the person, for the time being, in charge of the vessel or aircraft commits an offence under this Act: Provided that this subsection shall not apply if the contravention consists of the use by a passenger, on board the vessel or aircraft, of any radio-communication apparatus not designed or adapted, for transmission (as opposed to reception) which is not part of the radio communication apparatus of the vessel or aircraft.

(3) The Commission may make regulations for the use of radio- communication apparatus on board a vessel or aircraft not registered in Kenya while the vessel or aircraft is within the territorial limits of Kenya or its territorial waters.

Part IvaBroadCastIng servICes 46A.

The functions of the Commission in relation to broadcasting Functions of the services shall be to: Commission in relation to (a) promote and facilitate the development, in keeping with the broadcasting services.

public interest, of a diverse range of broadcasting services in Kenya; 1 of 2009, s.16.

40 CAP.

411A Kenya Information and Communications [Rev.

2011 (b) facilitate and encourage the development of Kenyan programmes; (c) promote the observance at all times, of public interest obligations in all broadcasting categories; (d) promote diversity and plurality of views for a competitive marketplace of ideas; (e) ensure the provision by broadcasters of appropriate internal mechanisms for disposing of complaints in relation to broadcasting services; (f) protect the right to privacy of all persons; and (g) carry out such other functions as are necessary or expedient for the discharge of all or any of the functions conferred upon it under this Act.

Classication 46B.

(1) Broadcasting services shall be classied for specied of broadcasting areas according to the following service categories services.

1 of 2009, s.16.

(a) public broadcasting; (b) private broadcasting; (c) community broadcasting.

(2) Subject to the provisions of this Act, broadcasting service licences shall be categorized into the following classes (a) free-to-air radio; (b) free-to-air television; (c) subscription radio; (d) subscription television; (e) subscription management; (f) any other class of licence as may be determined in accordance with the Regulations.

Requirement of a 46C.

(1) Subject to this Act, no person shall provide broadcasting broadcasting licence.

services except in accordance with a licence issued under this Part.

1 of 2009 s.16.

(2) Any person who contravenes this section commits an offence Kenya Information and Communications CAP.

411A 41 Rev.

2011] and shall, on conviction, be liable to a ne not exceeding one million shillings, or to imprisonment for a term not exceeding three years, or to both.

(3) A licence granted under this section may include conditions requiring the licensee to (a) broadcast in such areas and within such geographical limits as the Commission may prescribe; (b) commit a minimum amount of time as may be prescribed, in its programme schedule to locally produced programmes, or, in the alternative, pay such amount of money as may be prescribed, into a Fund to assist the development of the Kenyan production industry; (c) pay such fees as the Commission may prescribe; and (d) fulll such other conditions as the Commission may require.

46D.

(1) A person shall not be eligible for the grant of a Eligibility for broadcasting licence if such person licensing and considerations for (a) is a political party; grant of licence.

1 of 2009, s.16.

(b) is adjudged bankrupt or has entered into a composition or scheme of arrangement with his creditors; (c) is of unsound mind; (d) does not fulll such other conditions as may be prescribed.

(2) In considering applications for the grant of a broadcasting licence, the Commission shall have regard to (a) observance at all times of public interest obligations in all broadcasting categories; (b) diversity and plurality of views for a competitive marketplace of ideas; (c) availability of radio frequency spectrum including the availability of such spectrum for future use; (d) efciency and economy in the provision of broadcasting 42 CAP.

411A Kenya Information and Communications [Rev.

2011 services; (e) demand for the proposed broadcasting service within the proposed broadcast area; (f) expected technical quality of the proposed service, having regard to developments in broadcasting technology; (g) suitability, capability, experience and expertise of the applicant in as far as carrying out such broadcast service is concerned; (h) nancial means and business record, if any, of the applicant; and (i) any other relevant matter that the Commission may consider necessary.

Public broadcasting 46E.

The Kenya Broadcasting Corporation established under services.

section 3 of the Kenya Broadcasting Corporation Act is hereby 1 of 2009, s.16.

designated as the public broadcaster and shall provide public Cap.

221.

broadcasting services.

Community 46F.

(1) The Commission may, upon application in the prescribed broadcasting manner and subject to such conditions as the Commission may deem services.

necessary, grant a licence authorizing the provision of community broadcasting services.

1 of 2009, s.16.

(2) The Commission in considering applications for grant of a licence under this section shall have regard (a) to the community of interests of the persons applying for or on whose behalf the application is made; (b) as to whether the persons, or a signicant proportion thereof constituting the community have consented to the application; (c) to the source of funding for the broadcasting service; (d) as to whether the broadcasting service to be established is not-for-prot; and (e) to the manner in which members of the community will participate in the selection and provision of programmes to be broadcast.

(3) A licence granted under this section may contain conditions Kenya Information and Communications CAP.

411A 43 Rev.

2011] requiring the licensee to (a) ensure that a cross section of the community is represented in the management of the broadcasting service; (b) ensure that each member of the community has a reasonable chance to serve in the management of the broadcasting service; (c) ensure that members of the community have a way of making their preferences known in the selection and provision of programmes; (d) conform to any conditions or guidelines as the Commission may require or issue with regard to such broadcasting service.

46G.

(1) Subject to this Act, the Commission may grant a licence Private broadcasting to any person to provide private broadcasting services.

services.

1 of 2009, s.16.

(2) A licence granted under this section may include conditions requiring the private broadcaster to (a) provide coverage in such areas as may be specied by the Commission; (b) in the case of television, include drama, documentaries and childrens programmes that reect Kenyan themes.

46H.

(1) The Commission shall have the power to set standards Commission to for the time and manner of programmes to be broadcast by licensees prescribe programme under this Act.

code.

1 of 2009, s.16.

(2) Without prejudice to the generality of sub-section (1), the Commission shall (a) prescribe a programming code; (b) review the programming code at least once every two years; (c) prescribe a watershed period programming when large numbers of children are likely to be watching programmes; and (d) ensure compliance with the programming code prescribed under this section; 44 CAP.

411A Kenya Information and Communications [Rev.

2011 Provided that the programming code referred to herein shall not apply where a licensee is a member of a body which has proved to the satisfaction of the Commission that its members subscribe and adhere to a programming code enforced by that body by means of its own mechanisms and provided further that such programming code and mechanisms have been led with and accepted by the Commission.

Responsibilities of 46I.

(1) All licensed broadcasters shall broadcasters.

1 of 2009, s.

16.

(a) provide responsible and responsive programming that caters for the varied needs and susceptibilities of different sections of the Kenyan community; (b) ensure that Kenyan identity is developed and maintained in programmes; (c) observe standards of good taste and decency; (d) gather and present news and information accurately and impartially; (e) when controversial or contentious issues of public interest are discussed, make reasonable efforts to present alterna- tive points of view, either in the same programme or in other programmes within the period of current interest; (f) respect the right to privacy of individuals; (g) respect copyright and neighbouring rights in respect of any work or material; (h) keep a program log or machine readable record of its programming for a period of one year after the date of broadcasting; (i) ensure that advertisements, either in terms of content, tone or treatment, are not deceptive or are not repugnant to good taste; (j) ensure that derogatory remarks based on ethnicity, race, creed, colour and sex are not broadcast.

(2) Where (a) any cinematograph lm has been submitted under any law for classication or censorship and approved for exhibition; Kenya Information and Communications CAP.

411A 45 Rev.

2011] and (b) where approval of the lm for exhibition has been denied or has been given subject to excisions, no broadcaster shall (i) in the case of any lm in respect of which such approval has been denied, broadcast the lm or any part thereof; or (ii) in the case of any lm that has been approved for exhibi- tion subject to excisions therefrom, broadcast that lm or any part thereof if the lm or, as the case may be, that part thereof includes any part of the lm required to be excised; except with the consent of and subject to any conditions given by the Kenya Film Censorship Board established under the Films and Stage Cap.

222.

Plays Act.

46J.

The Commission may in accordance with this Act revoke a Revocation of licence to broadcast where the licensee licences.

(a) is in breach of the provisions of the Act or regulations made 1 of 2009, s.

16.

thereunder; (b) is in breach of the conditions of a broadcasting licence; or (c) fails to use the assigned broadcasting frequencies within one year after assignment by the Commission.

46K.

The Minister may, in consultation with the Commission, Regulations on make regulations generally with respect to all broadcasting services and broadcasting.

1 of 2009, s.

16.

without prejudice to the generality of the foregoing, with respect to (a) the facilitation, promotion and maintenance of diversity and plurality of views for a competitive marketplace of ideas; (b) nancing and broadcast of local content; (c) mandating the carriage of content, in keeping with public interest obligations, across licensed broadcasting services; (d) prescribing anything that may be prescribed under this Part.

46 CAP.

411A Kenya Information and Communications [Rev.

2011 Requirement 46L.

(1) All broadcasters shall establish and maintain a procedure, for complaints by which persons aggrieved by any broadcast or who allege that a procedure.

broadcaster is not complying with this Act, may le complaints.

1 of 2009, s.

16.

(2) The procedure referred to in subsection (1) shall be submitted to the Commission for approval, (3) Where any person alleges that he has exhausted the procedure mentioned in sub-section (1) but is not satised with the remedy offered or action taken, he may appeal to the Commission.

(4) Complaints made under this section shall be made in writing within thirty days of the breach under subsection (1) and shall set out the grounds upon which they are based, the nature of damage or injury suffered as result of the broadcast or the violation complained of and the remedy sought.

(5) Any person who is aggrieved by a decision of the Commission made under this section may appeal to the Tribunal within thirty days after the decision.

Access to 46M.

The Commission or the Tribunal may with a view to solving programmes.

any dispute brought under section 46L require a licensee to 1 of 2009, s.

16.

(a) provide the Commission, the Tribunal or the complainant with a transcript of the broadcast complained of; (b) furnish the Commission, the Tribunal or the complainant with copies of any document that may assist in resolving the dispute; or (c) furnish the Commission or the Tribunal with any written or oral evidence to assist in resolving the dispute or in answer to the complaint.

Requirement for a 46N.

(1) Subject to this Act, no person shall provide signal licence for signal distribution services within Kenya or from Kenya to other countries distribution.

except in accordance with a licence issued under this Part.

1 of 2009, s.

16.

(2) Any person who contravenes subsection (1) shall be guilty of an offence and shall, on conviction, be liable to a ne not exceeding one million shillings or to imprisonment for a term not exceeding three years, or both.

Signal distribution 46O.

(1) The Commission may upon an application in the services.

prescribed manner and subject to such conditions as it may deem 1 of 2009, s.16.

necessary, grant a licence authorizing any person or persons to provide Kenya Information and Communications CAP.

411A 47 Rev.

2011] signal distribution services.

(2) A signal distribution licence granted under this section may require the signal distribution licensee to (a) provide signal distribution services as a common carrier to broadcasting licensees; (b) provide services promptly upon request, in an equitable, reasonable, non-preferential and non-discriminatory manner; (c) provide capability for a diversity of broadcast services and content; (d) provide an open network that is interoperable with other signal distribution networks; and (e) comply with any other conditions that the Commission may determine.

(3) A signal distribution licensee utilizing the radio frequency resource may be required by the Commission to comply with conditions as to the nature and location of transmitters and their transmission characteristics.

(4) A licensee who changes the nature, location or transmission characteristics approved in terms of sub-section (1) without the approval of the Commission commits an offence and shall on conviction be liable to a ne not exceeding one million shillings or imprisonment for a term not exceeding three years or, to both.

46P.

The Commission may revoke a licence under this Part where Revocation of signal the licensee or a person under the control of the licensee distribution licence.

1 of 2009, s.16.

(a) is in breach of this Act or regulations made thereunder; (b) is in breach of the conditions of a licence; (c) fails to commence operations within the period prescribed by the Commission.

46Q.

(1) Any person who provides a broadcasting service without Offences relating a broadcasting licence commits an offence.

to broadcasting services.

(2) Any person who provides a broadcasting service pursuant to 1 of 2009, s.16.

a licence granted under this Act commits an offence if 48 CAP.

411A Kenya Information and Communications [Rev.

2011 (a) that person provides a broadcasting service which is not of a description specied in the licence; (b) that person provides broadcasting services in an area for which he is not licensed to broadcast; or (c) that person broadcasts in contravention of the Act or the licence conditions.

(3) A person convicted of an offence under this section shall, on conviction, be liable to a ne not exceeding one million shillings or to imprisonment for a term not exceeding three years, or both.

Transitional 46R.

The transitional provisions set out in the Fifth Schedule to provisions.

this Act shall have effect with respect to broadcasting permits issued prior to the commencement of this Act.

1 of 2009, s.16.

Broadcasting Content 46S.

(1) There is established a Council to be known as the Advisory Council.

Broadcasting Content Advisory Council, in this section referred to as the Council.

6 of 2009, Sch.

(2) The Council shall (a) be responsible for and make decisions on (i) the administration of the broadcasting content aspect and provisions of this Act; (ii) the mechanisms for handling complaints under this Act; (b) monitor compliance with broadcasting codes and ethics for broadcasters; and (c) have such other functions and powers as the Board may determine.

(3) The Council shall consist of (a) the Permanent Secretary in the Ministry for the time being responsible for information and communications, or his representative; (b) six other members appointed by the Minister as follows (i) two members nominated by the Commission, one of Kenya Information and Communications CAP.

411A 49 Rev.

2011] whom shall be recommended by the Inter-Religious Forum; (ii) two members appointed by the Media Council of Kenya established under the Media Act, 2007; (iii) one member nominated by the Law Society of Kenya; and (iv) one member, not being a civil servant, nominated by the Attorney-General.

(4) The members shall at their rst meeting elect one of their number to be the Chairman.

(5) In nominating members of the Council under subsection (3), the nominating body or authority shall nominate persons who (a) have knowledge and experience in media matters, broadcasting, communication or cultural issues; (b) it is satised do not have a conict of interest under Part IVA and have no nancial or other interest likely to prejudicially affect the carrying out of their functions under this Part; and (c) are, in the opinion of the nominating body or authority, suitable to perform the functions and duties of a member competently and honestly.

Part vPostal servICes 47.

(1) The functions of the Commission in relation to postal Functions of the services shall be to Commission in relation to postal (a) ensure that there are provided throughout Kenya good and services.

sufcient postal and other related services, on such terms as the Commission may deem expedient; (b) ensure that the public post licensee is able to provide postal services at rates consistent with efcient and continuous service and nancing viability; (c) promote development of postal systems and services in accordance with recognised international standards, practices and public demands; 50 CAP.

411A Kenya Information and Communications [Rev.

2011 (d) exercise licensing and regulatory functions in respect of postal systems and services in Kenya in accordance with this Act; (e) regulate the xing of rates of postage and other fees or sums to be charged in respect of postal articles weighing not more than three hundred and fty grams; (f) regulate the issuance of postage stamps including denitive, commemorative and special issues of postage stamps and any other philatelic items; (g) ensure the terms and conditions stated in any licence granted under section 51 are complied with; (h) promote competition in the provision of postal services; (i) ensure that reasonable demands for postal services are satised; (j) promote and encourage the expansion of postal services in Kenya; and (k) further the advancement of technology relating to the post and postal services.

(2) In discharging the functions and duties under subsection (1), the Commission shall have regard to: (a) efciency and economy; (b) fostering the development and expansion of postal services in Kenya in collaboration with other countries and international organisations; (c) the maintenance of effective competition between persons providing or interested in providing postal services; (d) the promotional measures for the safety of life through communications; (e) the provision of postal service rates consistent with efcient service and the necessity for maintaining nancial viability; and (f) the promotion and development of standards in the eld of Kenya Information and Communications CAP.

411A 51 Rev.

2011] postal systems and services.

48.

(1) The Commission shall grant to the public postal licensee Exclusive right to the exclusive right to provide private letter boxes or bags and postal provide certain postal services except in relation to services.

(a) letters weighing more than three hundred and fty grams; (b) trade announcements, circulars, printed extracts from newspapers or advertisements not addressed to any particular person; (c) letters delivered by an employee of the sender; (d) letters delivered by a messenger employed by the sender especially for the purpose, not being a person employed or engaged in the course of his business or employment in delivering or procuring the delivery of letters; (e) letters concerning goods sent with the goods and delivered therewith; (f) letters carried to or from a post ofce; (g) letters carried in accordance with an agreement entered with the public postal licensee; (h) transfers between document exchanges; (i) letters carried to the premises of a provider of electronic mail services for the purposes of being transmitted as electronic mail, or letters carried from the premises of such a person after having been transmitted; (j) letters carried privately and delivered without hire, reward or other prot; (k) letters carried and delivered personally by the sender; and (l) letters, postcards, aerogrammes of three hundred and fty grams or less in weight, if a charge of at least ve times the basic charge of the public postal licensee letter rate for that class of item is made in respect of receiving, collecting, sending, despatching and delivery.

(2) If any question arises as to whether or not any postal article is a letter within the meaning of this Act, the decision of the Commission thereon shall be nal.

52 CAP.

411A Kenya Information and Communications [Rev.

2011 Requirement of 49.

(1) Subject to the provisions of this Act, no person shall licence.

operate or provide postal services except in accordance with a valid 1 of 2009, s.

17.

licence issued in accordance with this Part.

(2) A person who contravenes the provisions of this section commits an offence and shall be liable on conviction to a ne not exceeding three hundred thousand shillings, or to imprisonment for a term not exceeding one year, or to both.

(3) In this section, person means a natural or a corporate person, a rm, government, state or state agency, any association or partnership.

Designation of public 50.

The Minister shall designate the Postal Corporation of Kenya postal licensee.

to be the public postal licensee and may, by notice in the Gazette, assign to it, any of the powers, duties and functions of the Commission under this Part relating to postal articles being conveyed, within the system of a public postal licensee as he may think t.

License to provide 51.

(1) The Commission may, upon application in the prescribed postal services.

manner and subject to the conditions specied in section 52 or such other conditions as the Commission may deem necessary, grant a licence in the prescribed form authorizing any person to operate or to provide postal services in accordance with the provisions of this Act.

(2) A licence granted under this section shall unless earlier revoked in accordance with any term specied therein, continue in force for such period as may be specied therein.

(3) Subject to the provisions of this Act, the Commission may renew or revoke a licence issued under this section or vary or modify any conditions attached thereto.

Conditions of 52.

Every licensee shall be required to observe the following licence.

licence conditions (a) to provide courier services to any person, who requests for such services where available; (b) to notify the Commission forthwith of the current tariffs charged for postal services and changes to the tariffs for each different type of postal service provided to each location within thirty days of such changes; (c) to display prominently at each premises from which it conducts its business, current tariffs for each postal service Kenya Information and Communications CAP.

411A 53 Rev.

2011] to various destinations; (d) to comply with all applicable and relevant laws, rules and regulations including, but not limited to the law relating to customs and imports and exports with regard to receipt and dispatch of postal articles to and from Kenya; (e) to furnish the Commission with a copy of its latest audited annual accounts and nancial statements of the business with the application for renewal of its licence; (f) if the licensee is a company with a share capital, to provide documentary evidence of current status of shareholding together with the applicant for renewal of its licence; (g) where the licensee intends to enter into any association, contract or arrangement with a third party, to provide postal services which only the licensee is permitted under its licence to provide, to seek approval from the Commission before entering into such association, contract or arrangement; (h) to exercise its rights and powers and perform its duties and obligations under the licence in such manner as is consistent with the agreements or treaties to which Kenya is a party; (i) not to enter into any arrangement with any person running an international postal service on terms and conditions which the Commission deems to be unfavourable to the national interest.

General Provisions Relating to Postal Services 53.

The public postal licensee shall have exclusive rights to Postage stamps and issue postage stamps and provide private letter boxes subject to such postal charges.

conditions as the Commission may specify.

54.

(1) The person to whom any postal article is tendered for Addressee may be delivery on which postage or any other charge is due shall be liable to liable for postage, pay such postage or other charge unless etc.

(a) he refuses to accept delivery of such postal article; or (b) having accepted delivery of such postal article, he forthwith returns it unopened.

(2) If any postal article appears, to the satisfaction of the licensee, to have been maliciously sent for the purpose of annoying the addressee, 54 CAP.

411A Kenya Information and Communications [Rev.

2011 he may remit the postage or other charge due from the addressee.

(3) If any postal article which the postage or any other charge is due is refused or returned unopened by the addressee, or if the addressee is dead or cannot be found, the sender shall be liable to pay the postage or other charge due thereon.

Postal articles not to 55.

(1) Subject to this Act, where any postal article is in the be opened.

course of transmission by post, no employee of the licensee shall open it or deliver it to any person other than the addressee, or permit it to be opened or delivered to any person other than the addressee, unless he is authorised to do so by express authority in writing under the hand of the licensee: Provided that, nothing in this Part shall preclude the examination of any postal article and the disposal of any article in accordance with the provisions of any law (a) relating to customs; or (b) prohibiting or regulating the importation or exportation of any article.

(2) The licensee may, in any individual case which appears to warrant such a course of action, grant its warrant for opening or returning any specied postal article.

Interception of postal 56.

(1) On the declaration of any public emergency or in the articles in public interest of public safety or tranquillity, the Minister responsible for emergency, etc.

internal security may, by in order in class or description of postal articles in the course of transmission by post within Kenya shall be intercepted or detained or shall be delivered to any ofcer mentioned in the order in the service of the Government, or shall be disposed of in such manner as the Minister directs.

(2) A certicate signed by the Minister responsible for internal security shall be conclusive proof of the existence of a public emergency or that any act under subsection (1) in the interest of public security or tranquillity.

Article or material 57.

(1) No person shall send by post any material or postal article injurious to persons.

which is likely to injure any person in the course of transmission by post.

(2) Except as otherwise provided by regulations made under this Act and subject to such conditions as may be prescribed, no person shall send by post any explosive, inammable, dangerous, lthy, noxious or Kenya Information and Communications CAP.

411A 55 Rev.

2011] deleterious substance or any sharp instrument not properly protected which is likely to injure any person or any postal article in the course of transmission by post.

58.

No person shall send by post Prohibited materials.

(a) any indecent or obscene printing, photograph, lithograph, engraving, book or card or any other indecent or obscene article; (b) any postal article having thereon, or on the cover thereof, any words or designs of an indecent, obscene, scurrilous, threatening or grossly offensive character; (c) any postal article bearing any ctitious stamp or purporting to be prepaid with any postage stamp which has previously been used in payment of any stamp duty; (d) any other article which the Commission may by regulation prohibit.

59.

The Commission may make regulations in respect of the Regulations prohibiting injurious articles prohibited by section 58 and for the detaining, disposing of, articles.

or destroying any such postal article sent or tendered for transmission by post.

60.

(1) Where any postal article sent by post is reasonably suspected by the public postal licensee or other person licensed to provide postal Material sent in contravention of this services under this Act to have been sent in contravention of this Act or Act.

of any of the regulations made thereunder, or of any other written law, the public postal licensee or such other person shall immediately inform the Commission and hand over such postal article to the Commission or any person authorised in writing by the Commission.

(2) On receiving the aforesaid information, an authorised ofcer shall detain such postal article for opening and examination.

(3) Subject to the provisions of this Act, if any postal article opened or examined under this section is found to be in contravention or to have been posted in contravention of this Act, or of any regulations made thereunder, or of any other written law, such postal article shall be dealt with in accordance with regulations made under section 66.

(4) Notwithstanding any provisions of any written law to the contrary, if any postal article opened under this Act is found to be in contravention of any law relating to customs, it shall be handed over to the customs authority to be dealt with in accordance with such law.

56 CAP.

411A Kenya Information and Communications [Rev.

2011 (5) The detention, destruction or disposal under this Act of a postal article or its contents shall not relieve any person sending or delivering it, from liability for any offence under this Act or under any other written law.

Power to deal with 61.

(1) If any licensee under this Part has reason to believe that any postal articles postal article contains anything in respect of which an offence is being containing anything or has been committed, or is being attempted to be committed, such in respect of which licensee may require, by notice in writing, the attendance, at a specied an offence is post ofce and time, of the addressee of such postal article or of some committed.

agent deputised in writing by such addressee and of a police ofcer, and such postal article shall then be opened by the addressee or his agent in the presence of an authorised employee and of the police ofcer.

(2) If the addressee or his agent fails to attend in pursuance of the notice under subsection (1) or refuses to open the article, it shall be opened by the authorised employee of the licensee in the presence of the police ofcer.

(3) Where the postal article has been opened under this section, it shall be delivered to the addressee unless the police ofcer states that it is required for the purpose of any legal proceedings, in which event it shall be delivered to the police ofcer on his signing a receipt therefor.

(4) Where the licensee is requested by the Commissioner of Police to exercise its powers under this section, it shall do so and thereupon the notice referred to in subsection (1) shall be issued.

Withholding postal 62.

If any person refuses to pay any postage or other sum which articles until postage, etc.

is paid.

he is legally bound to pay in respect of any postal article, the licensee may, without prejudice to any other method of recovery, withhold from that person any postal article addressed to that person, until such postage or other sum is paid.

63.

(1) The Commission shall allow the public postal licensee to Postal nancial services.

carry out postal nancial services on its own account.

(2) For the purposes of this section, postal nancial services include money orders, postal orders, postal drafts, postal cheques, postal travellers cheques, giro, cash-on-delivery, collection of bills, savings service, subscription to newspapers and periodicals or any other form of nancial service as the Commission may prescribe.

Refund of wrong 64.

Where any person receives payment of money (a) any amount paid to him in respect of a money order by order.

Kenya Information and Communications CAP.

411A 57 Rev.

2011] an employee of the public postal licensee, in excess of that which ought to have been paid to him; or (b) any amount in respect of a money order paid to him by an employee of the public postal licensee, instead of to some other person to whom it ought to have been paid, the public postal licensee may call upon that person to refund immediately to such licensee the amount wrongly paid.

65.

In any proceedings for the recovery of any postage or Proof of return, of other charge alleged to be due under this Act in respect of any postal postal articles.

article (a) the production of the postal article having thereon the ofcial mark of the licensee or the signature of an employee of the licensee denoting that the article has been refused, returned unopened or unclaimed, or that the addressee is dead or cannot be found, shall be prima facie evidence of the fact so denoted; (b) the person from whom the postal article is supposed to have come shall, until the contrary is proved, be deemed to be the sender thereof; and (c) the production of the postal article, having thereon the ofcial mark of the public postal licensee denoting that any postage or other charge is due in respect thereof to the operator or to the postal administration of any foreign country, shall be conclusive evidence for all purposes that the sum so denoted is due.

66.

The Minister in consultation with the Commission may Regulations for make regulations generally with respect to postal services and, without postal services.

prejudice to the generality of the foregoing, with respect to (a) the disposal of undelivered postal articles; (b) the licensing and use of franking machines for pre-payment of postage and the use of postal franks; (c) specifying the conditions for the perforation or defacement of postage stamps and the conditions on which postage stamps may be accepted or refused in payment of postage or other charges; (d) specifying the conditions on which compensation may be 58 CAP.

411A Kenya Information and Communications [Rev.

2011 paid for the loss of or damage to any postal article; (e) specifying the conditions for the registration and insurance of postal articles; (f) specifying the conditions for the issue and payment of money orders at post ofces; (g) specifying the conditions subject to which any postal article in the course of transmission by post may be redelivered to the sender without reference to the consent of the addressee; and (h) specifying the conditions for the acceptance of cash-on- delivery postal articles.

Offences Relating to Postal Services Operating without a 67.

A person who otherwise than in accordance with the terms valid licence.

of a valid licence issued under section 51 1 of 2009, s.18, (a) conveys any letter or postal article; (b) performs any service incidental to conveying, any letter or postal article; (c) delivers or tenders in order to be sent otherwise than in accordance with the terms of a valid licence, any letter or postal article as aforesaid; or (d) makes a collection of letters or postal articles for the purpose of sending them; commits an offence and shall be liable on conviction to a ne not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding one year, or to both.

Damaging letter box.

68.

A person who places in or against any letter box provided by the public postal licensee for the reception of postal articles any re, match or light, or any explosive, dangerous, lthy, noxious, or deleterious substance or any uid, or commits a nuisance in or against any such letter box, or does anything likely to injure any such letter box or its appurtenances or contents, commits an offence and shall, be liable on conviction, to a ne not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.

69.

A person who, without the authority of the public postal Kenya Information and Communications CAP.

411A 59 Rev.

2011] Afxing materials on licensee, afxes any placard, advertisement, notice, document, board post ofce.

or other thing in or on, or paints tar, or in any way disgures any post 1 of 2009, s.19.

ofce, commits an offence and shall, be liable on conviction to a ne not exceeding three hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.

70.

A person who, being an employee of the public postal licensee Unlawful opening or being employed in connection with postal services or delivery, etc.

of postal articles (a) opens or permits to be opened any postal article otherwise by employees of than in accordance with the provisions of this Act; licensee.

(b) knowingly reveals, discloses or in any way makes known the contents of, or any information in relation to, any postal article opened under the authority of this Act, otherwise than in accordance with the law; (c) knowingly destroys, detains or secretes any mailbag or postal article otherwise than in accordance with this Act; (d) knowingly permits any unauthorised person to interfere in any way with any mail bag or postal article; or (e) fraudulently or with intent to deceive prepares, alters, secretes or destroys any document used for the purposes of postal services, commits an offence and shall on conviction be liable to a ne not exceeding two hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.

71.

Any person, who without lawful excuse, the proof of which Transmitting offensive material shall lie on the person charged, sends or procures to be sent by post, a by post.

postal article which has thereon or enclosed therein any word, drawing 1 of 2009, s.20.

or picture of a scurrilous, threatening, obscene or grossly offensive character, commits an offence and shall on conviction be liable a ne not exceeding three hundred thousand shillings, or to imprisonment for a term not exceeding three years or to both.

72.

Any person who, not being an employee of the public postal Unlawful opening licensee or not being employed in connection with postal services of postal articles etc by non-employees of (a) opens any postal article otherwise than in accordance with licensee.

this Act.

1 of 2009, s.

21.

(b) interferes in any way with any mailbag or postal article opened under the authority of this Act, otherwise than in accordance with the law; 60 CAP.

411A Kenya Information and Communications [Rev.

2011 (c) fraudulently puts, alters, removes or erases any ofcial mark on a postal article; (d) maliciously and without authority, the proof of which authority shall lie on the person charged, opens, destroys, detains or secretes any article after it has been transmitted by post and before it has been delivered to the addressee; (e) without the authority of the public postal licensee, the proof of whose authority shall lie on the person charged, knowingly enters any premises used for the purpose of the postal services and to which the public has no right of access; (f) refuses or fails to leave any such premises when called upon so to do by an authorised employee of the public postal licensee; or (g) wilfully and unlawfully obstructs or impedes any employee of the public postal licensee or any other person in the discharge of his duties in connection with postal services, commits an offence and shall, on conviction, be liable to an imprisonment for a term not exceeding three years or to a ne not exceeding three hundred thousand shillings or to both.

73.

Any person who Using of ctitious stamps.

1 of 2009, s.

22.

(a) makes or knowingly utters, deals in, hawks, distributes, or sells any ctitious stamps or knowingly uses for postal purposes any ctitious stamps; (b) has in his possession without lawful excuse any ctitious stamp; (c) makes, issues or sends by post any stamped or embossed envelope, wrapper, card, form or paper in imitation of one issued under the authority of the public postal licensee; commits an offence and shall be liable on conviction to a ne not exceeding ve hundred thousand shillings or to imprisonment for a term not exceeding two years, or to both.

Use of certain words.

74.

Any person who, without authority from the Commission, places or maintains or permits to be placed or maintained in or on any 1 of 2009, s.23.

house, wall, door, window, box, pillar or other place, belonging to him or under his control, any of the following words, letters, or marks Kenya Information and Communications CAP.

411A 61 Rev.

2011] (a) the words post ofce or postal ofce; (b) the words letter box, accompanied with words, letters, marks, which signify or imply or may reasonably lead the public to believe that it is a post ofce letter box; (c) any words, letters, or mark which signify or imply or may lead the public to believe that any house or place is a post ofce, or that any box is a post ofce letter box commits an offence and shall be liable on conviction to a ne not exceeding ten thousand shillings.

75.

Any person who Transmitting (a) sends by post any postal article which is prohibited from prohibited articles being so transmitted under any regulations made under this by post.

Act; 1 of 2009, s.24.

(b) sends by post, otherwise than in accordance with any regulations made under this Act, any postal article containing any noxious, explosive or dangerous substance which would be likely to damage any other postal article; (c) subscribes on the outside of any postal article, or makes in any declaration relating to a postal article, any statement which he knows or has reason to believe to be false, or which he does not believe to be true, in relation to the contents or value thereof; or (d) with intent to defeat the course of justice sends by post any postal article containing anything with respect to which, or in connection with which any offence, to his knowledge, has been or is being committed, commits an offence and shall, be liable on conviction to a ne not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years, or to both.

76.

Any person who unlawfully and wilfully removes, destroys Interfering with or damages any installation or plant used for postal services commits postal installation.

an offence and shall on conviction, be liable to a ne not exceeding ve hundred thousand shillings or to imprisonment for a term not exceeding 1 of 2009, s.

25.

three years, or to both.

Part vIlICensIng and enforCement 1 of 2009, s.

26.

62 CAP.

411A Kenya Information and Communications [Rev.

2011 Application for 77.

(1) Every application for a licence under this Act shall be in the licence.

prescribed form addressed to the Commission and shall be accompanied by such fee as may be prescribed.

(2) The Commission may, with respect to any application, require the applicant to supply such additional information as it may consider necessary in considering the application.

Notice of licence.

78.

(1) The Commission shall, at least thirty days before granting 1 of 2009, s.

27.

a licence under this Act, give notice in the Gazette and in such other manner as the Commission considers appropriate (a) specifying the name and other particulars of the person or class of persons to whom the licence is to be granted; (b) stating the reasons for the proposed grant of the licence; and (c) specifying the time (not being less than thirty days from the date of the notice) within which written representations or objections in respect of the proposed licence may be made to the Commission.

Provided that nothing in this subsection shall apply in respect of licences for (i) telecommunications vendors; (ii) radio-communications; or (iii) value-added or resale services.

(2) The Commission shall in considering the application, take into account any written representations or objections received under subsection (1) (c).

Grant of licence.

79.

The Commission may, upon expiry of the period of notice 1 of 2009, s.

28.

under section 78 grant a licence to the applicant if satised that the applicant should be licensed, subject to such conditions, including the payment of such licence fee as may be prescribed: Provided that where the Commission does not grant a licence, it shall notify the applicant in writing of the reasons for refusal within thirty days of such refusal and the applicant may, if aggrieved, appeal to the Tribunal.

Kenya Information and Communications CAP.

411A 63 Rev.

2011] 80.

A Licence granted under this Act shall, unless earlier revoked Duration of licence.

in accordance with any term in that regard contained in the licence, continue in force for such period as may be specied in the licence.

81.

A licence issued under this Act may, on application and subject Renewal of licence.

to the payment of the prescribed fee, be renewed for such further period as the Commission may specify: Provided that where the Commission does not renew the licence it shall notify the licensee in writing of the reasons for refusal within thirty days, and the licensee may if aggrieved appeal to the Tribunal.

82.

(1) Subject to the provisions of this Act, the Commission Modication of may, from time to time, modify any conditions attached to a licence conditions of licence.

under this Act.

1 of 2009, s.

29.

(2) Subject to subsection (4), before making any modications under this section, the Commission shall give notice in writing and by publication in the Gazette to the licensee (a) stating that it proposes to make the modication and setting out the effects of such modication; (b) giving reasons for the modication; and (c) specifying the time (not being less than thirty days from the date of publication of the notice) within which any written objections or representations may be made by the licensee or by any interested party with respect to the proposed modications.

Provided that nothing in this subsection shall apply in respect of licences for (i) telecommunication vendors; (ii) radio-communications; or (iii) value-added or resale services.

(3) The Commission shall cause every notice given under subsection (2) to be published in the Gazette.

(4) Notwithstanding the provisions of subsection (2), where a modication under this section is intended to remedy or prevent matters which operate or are likely to operate against the public interest, the Commission may proceed to make the proposed modication and 64 CAP.

411A Kenya Information and Communications [Rev.

2011 shall inform the telecommunication operator in writing of the said modication and the reasons therefor.

(5) A licensee aggrieved by the decision of the Commission under this section may appeal to the Tribunal within fteen days from the date of receipt of the notice under subsection (2) and the Tribunal may stay the modication pending its decision on the appeal.

(6) The Tribunal shall, within fteen days of every decision of an appeal under this section, cause the decision and the reasons therefor to be published in the Gazette.

Register of licences.

83.

(1) The Commission shall maintain separate registers for the various licences issued under this Act and shall enter therein, in respect of every licence, such particulars as may be prescribed.

(2) Any person may, during working hours and on payment of the prescribed fee, inspect any register of licenses: Provided that a person who is (a) a member of the police force or a public ofcer acting in the course of duty; or (b) authorised in writing by the Board, may inspect the register without payment of any fee.

Enforcement of 83A.

(1) Where, on its own motion or consequent upon a licence conditions.

complaint made by any person, the Commission 1 of 2009, s.30.

(a) is satised that a licensee is contravening or has contravened the Act, or any other written law or any of the conditions of that licence; (b) noties the licensee in writing, specifying the acts or omissions which, in its opinion, constitute or would constitute contravention of the Act or the licence; (c) requires the licensee to remedy the contravention within such period as the Commission may specify in the notice, then if the licensee fails to remedy the contravention within the prescribed period without reasonable cause, such a licensee shall be liable to a penalty of ve hundred thousand shillings and such penalty Kenya Information and Communications CAP.

411A 65 Rev.

2011] shall be a debt owed to the Commission and recoverable summarily.

(2) Notwithstanding the provisions of subsection (1), any licensee aggrieved by a decision of the Commission under this section may appeal to the tribunal within fteen days of receipt of the notication thereof by the Commission.

Part vIaeleCtronIC transaCtIons 83B.

(1) This Part shall not apply to any rule or law requiring Application.

writing or signatures in any of the following matters: 1 of 2009, s.

31.

(a) the creation or execution of a will; (b) negotiable instruments; (c) documents of title.

(2) The Minister may by order modify the provisions of sub-section (1) by adding or removing any class of transactions or matters.

83C.

The functions of the Commission in relation to electronic Functions of the transactions shall be to: Commission in relation to electronic (a) facilitate electronic transactions by ensuring the use of transactions.

reliable electronic records; 1 of 2009, s.

31.

(b) facilitate electronic commerce and eliminate barriers to electronic commerce such as those resulting from uncertainties over writing and signature requirements; (c) promote public condence in the integrity and reliability of electronic records and electronic transactions; (d) foster the development of electronic commerce through the use of electronic signatures to lend authenticity and integrity to correspondence in any electronic medium; (e) promote and facilitate efcient delivery of public sector services by means of reliable electronic records; and (f) develop sound frameworks to minimize the incidence of forged electronic records and fraud in electronic commerce and other electronic transactions.

Requirement for a 83D.

(1) No person shall licence.

1 of 2009, s.31.

66 CAP.

411A Kenya Information and Communications [Rev.

2011 (a) operate an electronic certication system; or (b) update a repository or administer a sub-domain in the Kenya country top level domain (.ke ccTLD); except in accordance with a licence granted under this Act.

(2) A person who contravenes this section commits an offence and shall be liable on conviction to a ne not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years, or both.

Licence for electronic 83E.

(1) The Commission may, upon application in a prescribed certication services.

manner and subject to such conditions as it may deem necessary, grant 1 of 2009, s.31.

licences under this section authorizing a person to provide electronic certication services.

to: (2) A licence granted under sub-section (1) may require a licensee (a) make use of hardware, software and procedures that are secure from intrusion and misuse; (b) provide a reasonable level of reliability in its services which are reasonably suited to the performance of intended functions; (c) adhere to procedures that ensure that the secrecy and privacy of the electronic signatures are assured; and (d) observe such other standards as may be specied by regulations.

Licence for country 83F.

The Commission may, upon application in the prescribed code top-level manner and subject to such conditions as it may deem necessary, grant domain.

licences under this section authorizing a person to administer a sub- 1 of 2009, s.31.

domain in the country code top-level domain.

Legal recognition of 83G.

Where any law provides that information or other matter electronic records.

shall be in writing then, notwithstanding anything contained in such 1 of 2009, s.

31.

law, such requirement shall be deemed to have been satised if such information or matter is: (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference Kenya Information and Communications CAP.

411A 67 Rev.

2011] 83H.

Where any law provides that documents, records or Retention of electronic records.

information shall be retained for any specic period, then that 1 of 2009, s.

31.

requirement shall be deemed to have been satised where such documents, records or information are retained in electronic form if: (a) the information contained therein remains accessible so as to be usable for subsequent reference; (b) the electronic record is retained in the format in which it was originally generated, sent or received or in a format which can be demonstrated to represent accurately the information originally generated, sent or received; and (c) the details which will facilitate the identication of the original destination, date and time of dispatch or receipt of such electronic record are available in the electronic record; Provided that this clause shall not apply to any information which is automatically generated solely for the purpose of enabling an electronic record to be dispatched or received.

83I.

(1) Where any law requires information to be presented or Retention of information in retained in its original form, that requirement is met by an electronic original form.

record if: 1 of 2009, s.31.

(a) there exists a reliable assurance as to the integrity of the information from the time when it was rst generated in its nal for as an electronic message or otherwise; and (b) where it is required that information be presented, that information is capable of being displayed to the person to whom it is to be presented.

(2) Sub-section (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for the information not being presented or retained in its original form.

(3) For the purposes of sub-section (1)(a): (a) the criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change which arises in the normal course of communication, storage and display; and 68 CAP.

411A Kenya Information and Communications [Rev.

2011 (b) the standard of reliability required shall be assessed in the light of the purpose for which the information was generated and in light of all the relevant circumstances.

Formation and 83J.

(1) In the context of contract formation, unless otherwise validity of contracts.

agreed by the parties, an offer and acceptance of an offer may be expressed by means of electronic messages thus where an electronic 1 of 2009, s.

31.

message is used in the formation of a contract, the contract shall not be denied validity or enforceability solely on the ground that an electronic message was used for the purpose.

(2) Nothing in this section shall apply to any law that expressly provides a different method for the formation of a valid contract.

Recognition of 83K.

As between the originator and the addressee of an electronic parties of electronic message, a declaration of intent or other statement shall not be denied messages.

legal effect, validity or enforceability solely on the ground that it is in the form of an electronic message.

1 of 2009, s.

31.

Attribution of 83L.

(1) An electronic message shall be attributed to the originator electronic records.

if it was sent by the originator himself, or by a person who had the authority to act on behalf of the originator in respect of the electronic 1 of 2009, s.

31.

record or by an information system programmed by or on behalf of the originator to operate automatically.

(2) As between an originator and an addressee, an addressee is entitled to regard an electronic message as being that of the originator, and act on that assumption, if: (a) in order to ascertain whether the electronic message was that of the originator, the addressee properly applied a procedure previously agreed to by the originator for the purpose; or (b) the electronic message as received by addressee resulted from actions of a person who had the authority to act on behalf of the originator in respect of the electronic record.

Acknowledgement of 83M.

(1) Where the originator has not agreed with the addressee receipt.

that the acknowledgement of receipt of electronic records be given in 1 of 2009, s.

31.

a particular form or by a particular method, an acknowledgement may be given by: (a) any communication by the addressee, automated or otherwise; (b) any conduct of the addressee, sufcient to indicate to the originator that the electronic record has been received.

Kenya Information and Communications CAP.

411A 69 Rev.

2011] (2) Where the originator has stipulated that an electronic record shall be binding only on receipt of an acknowledgement of such electronic record, then, unless acknowledgement has been received, the electronic record shall be deemed to have never been sent by the originator.

(3) Where the originator has not stipulated that the electronic record shall be binding on receipt of such acknowledgement, and acknowledgement has not been received by the originator within a reasonable time, then, the originator may give notice to the addressee stating that no acknowledgement has been received by him and specifying a reasonable time by which the acknowledgement must be received by him and if no acknowledgement is received within that time limit, he may, after giving notice to the addressee, treat the electronic record as though it was never sent.

83N.

Where any security procedure has been applied to an Secure electronic electronic record at a specic point of time, then such record shall record.

be deemed to be a secure electronic record from that point of time to 1 of 2009, s.

31.

verication.

83O.

(1) Where any law requires a signature of a person, that Compliance with requirement is met in relation to an electronic message if an advanced requirement for a electronic signature is used that is as reliable as was appropriate signature.

for the purpose for which the electronic message was generated or 1 of 2009, s.

31.

communicated, in light of all the circumstances, including any relevant agreement.

(2) Sub-section (1) applies whether the requirement referred to therein is in the form of an obligation or whether the law simply provides consequences for the absence of a signature.

(3) An advanced electronic signature is considered to be reliable for the purpose of satisfying the requirement referred to in sub-section (1) if: (a) it is generated through a signature-creation device; (b) the signature creation data are, within the context in which they are used, linked to the signatory and to no other person; (c) the signature creation data were, at the time of signing, under the control of the signatory and of no other person; (d) any alteration to the electronic signature made after the time 70 CAP.

411A Kenya Information and Communications [Rev.

2011 of signing is detectable; and (e) where the purpose of the legal requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alteration made to that information after the time of signing, is detectable.

Legal recognition of 83P.

Where any law provides that information or any other matter electronic signatures.

shall be authenticated by afxing a signature or that any document shall 1 of 2009, s.31.

be signed or bear the signature of any person, then, notwithstanding anything contained in that law, such requirement shall be deemed to have been satised if such information is authenticated by means of an advanced electronic signature afxed in such manner as may be prescribed by the Minister.

Protected systems.

83Q.

(1) The Minister may, by notication in the Gazette, declare that any computer system or computer network is a protected system.

1 of 2009, s.31.

(2) The Minister may, by order in writing, authorize any person to access protected systems notied under sub-section (1).

Regulations for 83R.

The Minister may, in consultation with the Commission, for electronic signatures.

the purposes of this Act, prescribe regulations on: 1 of 2009, s.31.

(a) the type of electronic signature; (b) the manner and format in which the electronic signature shall be afxed; (c) the manner and procedure which facilitates identication of the person afxing the electronic signature; (d) control of the processes and procedures to ensure adequate integrity, security and condentiality of electronic records or payments; and (e) any other matter which is necessary to give legal effect to electronic signatures.

Use of electronic 83S.

(1) Where any law provides for records and electronic signatures (a) the effective delivery of public goods and services, improving in Government and its agencies.

quality of life for disadvantaged communities, strengthening good governance and public participation, creation of a better 1 of 2009, s.31.

business environment, improving productivity and efciency of government departments; Kenya Information and Communications CAP.

411A 71 Rev.

2011] (b) the ling of any form, application or any other document with any ofce, authority, body or agency owned or controlled by the Government in a particular manner; (c) the issue or grant of any licence, permit, sanction or approval by whatever name called in a particular manner; or (d) the receipt or payment of money in a particular manner; then notwithstanding anything contained in such law for the time being in force, such requirement shall be deemed to have been satised if such ling, issue, grant, receipt or payment, as the case may be, is effected by means of such electronic forms as may be prescribed by the Minister in consultation with the Commission.

(2) The Minister may, for the purposes of sub-section (1), by regulations prescribe: (a) the manner and format in which such electronic records shall be led, created or used; (b) the manner or method of payment of any fee or charges for ling, creation or issue of any electronic record under sub-paragraph (a).

83T.

Where any law provides that any rule, regulation, order, Electronic Gazette.

notication, or any other matter shall be published in the Gazette, then 1 of 2009, s.31.

such requirement shall be deemed to have been satised if such rule, regulation, order, notication or any other matter is published in the electronic Gazette; Provided that where any rule, regulation, order, by-law, notication or any other matter is published both in the printed and electronic Gazettes, the date of publication shall be deemed to be the date of the Gazette which was rst published in any form.

83U.

(1) Subject to subsections (2), any person who causes a Unauthorized access to computer data.

computer system to perform a function, knowing that the access he has 1 of 2009, s.

31.

secured is unauthorized, shall commit an offence and shall on conviction be liable to a ne not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years or both.

he:(2) A person shall not be liable under subsection (1) where (a) is a person with a right to control the operation or use of the computer system and exercises such right in good faith; 72 CAP.

411A Kenya Information and Communications [Rev.

2011 (b) has the express or implied consent of the person empowered to authorize him to have such an access; (c) has reasonable grounds to believe that he had such consent as specied under paragraph (b) above; or (d) is acting in reliance of any statutory power for the purpose of obtaining information, or taking possession of any document or other property.

Access with intent to 83V.

(1) Any person who causes a computer system to perform commit offences.

any function for the purpose of securing access to any program or data 1 of 2009, s.

31.

held in any computer system, with intent to commit an offence under any law, shall commit an offence and shall, on conviction be liable to a ne not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding two years or both.

(2) For the purposes of this section, it is immaterial that (a) the access referred to in subsection (1) is authorized or unauthorized; (b) the further offence to which this section applies is committed at the same time when the access is secured or at any other time.

Unauthorized access 83W.

(1) Subject to subsection (3), any person who by any means to and interception of knowingly: computer service.

(a) secures access to any computer system for the purpose of 1 of 2009, s.

31.

obtaining, directly or indirectly, any computer service; (b) intercepts or causes to be intercepted, directly or indirectly, any function of, or any data within a computer system, shall commit an offence.

(2) A person convicted for an offence under subsection (1) shall be liable on conviction to a ne not exceeding ve hundred thousand shillings or to imprisonment for a term not exceeding three years or both.

(3) Where as a result of the commission of an offence under subsection (1), the operation of the computer system, is impaired, or data contained in the computer system is suppressed or modied, the person convicted of such offence shall be liable on conviction to a ne not exceeding two hundred thousand shillings or to imprisonment for Kenya Information and Communications CAP.

411A 73 Rev.

2011] a term not exceeding two years or both.

(4) For the purpose of this section, it is immaterial that the unauthorized access or interception is not directed at (a) any particular program or data; (b) a program or data of any kind; or (c) a program or data held in any particular computer system.

he (5) A person shall not be liable under subsection (1) where (a) has the express or implied consent of both the person who sent the data and the intended recipient of such data; (b) is acting in reliance of any statutory power.

83X.

(1) Subject to subsections (3) and (4), any person who, Unauthorized modication of knowingly does an act which causes an unauthorized modication of computer material.

data held in any computer system shall, on conviction be liable to a ne 1 of 2009, s.

31.

not exceeding ve hundred thousand shillings or to imprisonment for a term not exceeding three years or both.

(2) Where as a result of the commission of an offence under this section: (a) the operation of the computer system; (b) access to any program or data held in any computer; or (c) the operation of any program or the reliability of any data, is suppressed, modied or otherwise impaired a person convicted for the offence shall be liable on conviction to a ne not exceeding two hundred thousand shillings and or imprisonment for a term not exceeding two years or both.

(3) A person shall not be liable under this section where he is acting in reliance of any statutory power.

(4) A modication is unauthorized if: (a) the person whose act causes it is not himself entitled to determine whether the modication should be made; and 74 CAP.

411A Kenya Information and Communications [Rev.

2011 (b) he does not have consent to the modication from any person who is so entitled.

(5) For the purposes of this section, it is immaterial whether an unauthorized modication or any intended effect of it, be permanent or merely temporary.

83Y.

Any person who without lawful authority or lawful excuse Damaging or denying does an act which causes directly or indirectly: access to computer system.

(a) a degradation, failure, interruption or obstruction of the 1 of 2009, s.31.

operation of a computer system; or (b) a denial of access to, or impairment of any program or data stored in, the computer system; shall commit an offence and shall, on conviction be liable to a ne not exceeding two hundred thousand shillings and or imprisonment for a term not exceeding two years or both.

Unauthorized 83Z.

Any person who knowingly discloses any password, access disclosure of code, or any other means of gaining access to any program or data held password.

in any computer system: 1 of 2009, s.31.

(a) for any wrongful gain; (b) for any unlawful purpose; or (c) knowing that the disclosure is likely to cause prejudice to any person, shall commit an offence and shall, on conviction, be liable on conviction to a ne not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years or both.

Unlawful possession 84A.

Any person who knowingly manufactures, sells, procures of devices and data.

for use, imports, distributes or otherwise makes available a computer system or any other device designed or adapted primarily for the purpose 1 of 2009, s.31.

of committing any offence under sections 83U to 83Z, shall commit an offence.

(2) Any person who knowingly receives, or is in possession, without sufcient excuse or justication, of one or more of the devices under subsection (1) shall commit an offence.

(3) Any person who is found in possession of any data or program with the intention that the data or program be used, by the person himself or another person, to commit or facilitate the commission of an offence under this Act, shall commit an offence.

Kenya Information and Communications CAP.

411A 75 Rev.

2011] (4) For the purposes of subsection (3), possession of any data or program includes (a) having possession of a computer system or data storage device that holds or contains the data or program; (b) having possession of a document in which the data or program is recorded; or (c) having control of data or program that is in the possession of another person.

(5) Where a person is convicted under this section, he shall on conviction be liable to a ne not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years or both.

84B.

Any person who fraudulently causes loss of property to Electronic fraud.

another person by: 1 of 2009, s.31.

(a) any input, alteration, deletion or suppression of data; or (b) any interference with the functioning of a computer system, with intent to procure for himself or another person, an advantage, shall commit an offence and shall, on conviction be liable to a ne not exceeding two hundred thousand shillings and or imprisonment for a term not exceeding three years or both.

84C.

Any person who knowingly or intentionally conceals, Tampering with destroys or alters, or intentionally or knowingly causes another person computer source to conceal, destroy or alter any computer source code, computer documents.

programme, computer system or computer network, where the computer source code is required to be kept or maintained by law for the time 1 of 2009, s.31.

being in force, shall on conviction be liable to a ne not exceeding three hundred thousand shillings or imprisonment for a term not exceeding three years, or both.

84D.

Any person who publishes or transmits or causes to be Publishing of published in electronic form, any material which is lascivious or obscene information appeals to the prurient interest and its effect is such as to tend to in electronic form.

deprave and corrupt persons who are likely, having regard to all relevant 1 of 2009, s.31.

circumstances, to read, see or hear the matter contained or embodied therein, shall on conviction be liable to a ne not exceeding two hundred thousand shillings or imprisonment for a term not exceeding two years, or both.

76 CAP.

411A Kenya Information and Communications [Rev.

2011 Publication for fraudulent purpose.

84E.

Any person who knowingly creates, publishes or otherwise makes available an electronic signature certicate for any fraudulent or 1 of 2009, s.31.

unlawful purpose commits an offence and shall on conviction be liable to a ne not exceeding one million shillings or imprisonment for a term not exceeding ve years, or both.

Unauthorized access 84F.

Any person who secures access or attempts to secure access to protected systems.

to a protected system in contravention of the provisions of this Part shall be guilty of an offence and shall on conviction be liable to a ne 1 of 2009, s.31.

not exceeding one million shillings or imprisonment for a term not exceeding ve years, or both.

Re-programming of 84G.

(1) Any person who knowingly or intentionally, not being mobile telephone.

a manufacturer of mobile telephone devices or authorized agent of such manufacturer, changes mobile telephone equipment identity, or 1 of 2009, s.31.

interferes with the operation of the mobile telephone equipment identity, commits an offence.

(2) A person guilty of an offence under this section shall on conviction be liable to a ne not exceeding one million shillings or to imprisonment for a term not exceeding ve years or both.

Possession or supply 84H.

(1) A person commits an offence if he: of anything for re- (a) has in his custody or under his control anything which may programming mobile be used for the purpose of changing or interfering with the telephone.

operation of a mobile telephone equipment identier, and 1 of 2009, s.31.

(b) intends to use the thing unlawfully for that purpose or to allow it to be used unlawfully for that purpose; or (c) supplies anything which may be used for the purpose of changing or interfering with the operation of a mobile telephone equipment, and (d) knows or believes that the person to whom the thing is supplied intends to use it unlawfully for that purpose or to allow it to be used unlawfully for that purpose; or (e) offers to supply anything which may be used for the purpose of changing or interfering with the operation of a mobile telephone equipment identier, and (f) knows or believes that the person to whom the thing is offered intends if it is supplied to him to use it unlawfully for that purpose or to allow it to be used unlawfully for that purpose.

Kenya Information and Communications CAP.

411A 77 Rev.

2011] (2) A person guilty of an offence under this section is liable on conviction to a ne not exceeding one million shillings or to imprisonment for a term not exceeding ve years or to both.

84I.

It shall not be an offence under sections 84G and 84H if Bonade (a) the re-programming of mobile telephone equipment identity re-programming is done; or or possession.

1 of 2009, s.31.

(b) the possession of anything that can change the mobile telephone equipment identity is had; bonades for personal technological pursuits or other technological review endeavours.

Part vIBunIversal servICe fund 84J.

(1) There is hereby established a fund to be known as the Establishment of the Universal Service Fund which shall be managed and administered by Fund.

the Commission.

1 of 2009, s.31.

(2) The object and the purpose of the Fund shall be to support widespread access to, support capacity building and promote innovation in information and communications technology services.

(3) There shall be a universal service levy (in this Part referred to as the levy) that shall be charged by the Commission on the licensees under this Act for purposes of the Universal Service Fund.

84K.

(1) There shall be credited to the Fund Revenue and (a) levies from licensees; expenditure of the Fund.

(b) such monies as may be provided by Parliament for that 1 of 2009, s.31.

purpose; (c) repayment of the principal sum and interest on any loan granted by the Commission; (d) income from any investment made by the Commission; and (e) any gifts, donations, grants and endowments made to the Fund.

(2) There shall be paid out of the Fund any expenditure approved 78 CAP.

411A Kenya Information and Communications [Rev.

2011 by the Board for the purposes of and the administration of the Fund.

Application for grant 84L.

Any person may make an application to the Board for of fund loan.

consideration for the grant of a loan from the Fund in the prescribed 1 of 2009, s.31.

form.

Conditions for grant 84M.

(1) The Board may of loan.

(a) accept or reject any application for a loan; 1 of 2009, s.31.

(b) grant a loan to an applicant and in so granting may impose conditions, demand security and require repayment in instalments at such times and within such periods as the Board deems t; Provided that, and subject to the provisions of this section, the Board may upon the request by an applicant to whom a loan has been granted at any time vary (i) the conditions upon which the loan was made; (i) any security given in relation to the loan; or (ii) any of the terms of repayment of the loan.

(2) Where the Board has resolved to grant a loan, the Board shall notify the applicant in writing and require him within a specied period not exceeding six months to comply with any conditions and provide any security which the Board may have imposed or demanded.

(3) Where an applicant fails to comply with a requirement of the Board notied to him under sub-section (2) within the prescribed period, the application shall be deemed to have lapsed.

Penalties for delayed 84N.

Where an applicant fails to make the repayments of remittances.

instalments on the loan within the prescribed period, the Board may 1 of 2009, s.31.

impose penalties for each month or part of the month that the repayments remain unpaid.

Funds annual returns 84O.

The Board shall comply with the Public Audit Act as regards and audit.

the operations of the Fund.

1 of 2009, s.

31.

No.

12 of 2003.

Regulations with 84P.

The Minister may, in consultation with the Commission, respect to the Fund.

make regulations generally with respect to the administration of the 1 of 2009, s.

31.

Fund and without prejudice to the generality of the foregoing, with respect to Kenya Information and Communications CAP.

411A 79 Rev.

2011] (a) amount of levy; (b) levels of subsidies to licensees; (c) conditions for the grant of a loan; (d) mechanisms for collection of the levy; or (e) prescribing anything that may prescribed under this Part.

Part vICfaIr ComPetItIon and equal treatment 84Q.

A licensee under this Act shall not engage in activities, General prohibition which have or are intended to or likely to have the effect of unfairly on anti-competitive conduct.

preventing, restricting or distorting competition where such act or 1 of 2009, s.31.

omission is done in the course of, as a result of or in connection with any business activity relating to licensed services.

84R.

(1) The Commission shall ensure that there is fair Commission competition in the sector and in this regard may make a determination to ensure fair in the licensed system and services.

competition.

1 of 2009, s.

31.

(2) Without prejudice to the generality of the foregoing the Commission shall in the performance of its functions under this Act, promote, develop and enforce fair competition and equality of treatment among licensees.

(3) The Minister may, in consultation with the Commission, make regulations for the better carrying out of the provisions under this Part.

84S.

(1) The Commission may, on its own motion or upon Anti-competitive complaint, investigate any licensee whom it has reason to believe or is conduct.

alleged to have committed any act or omission, or to have engaged in 1 of 2009, s.

31.

a practice, in breach of fair competition or equal access.

(2) Without limiting the generality of subsection (1) an act or omission shall include (a) any abuse by an licensee, either independently or with others, of a dominant position which unfairly excludes or limits competition between such operator and any other party; (b) entering any agreement or engaging in any concerted practice with any other party, which unfairly prevents, restricts or distorts competition or which; 80 CAP.

411A Kenya Information and Communications [Rev.

2011 (i) directly or indirectly x purchase or selling prices or any other trading conditions; (ii) limit or control production, markets, technical develop- ment or investment; (iii) share markets or sources of supply; (iv) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (v) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contract.

(c) the effectuation of anti-competitive changes in the market structure and in particular, anti-competitive mergers and acquisitions in the communications sector.

Complaints and 84T.

(1) The Commission may, on its own motion, investigate investigation by the any licensee who commits any act or omission in breach of fair Commission.

competition.

1 of 2009, s.31.

(2) Any person having a complaint of a breach of fair competition against a licensee shall lodge a complaint to the Commission and the Commission shall, if it appears that a breach of fair competition has been or is being committed, investigate the act and omission and give written notice to the licensee stating (a) that the Commission is investigating a possible breach of fair competition; (b) the reasons for the suspicion of a contravention or breach, including any matter of facts or law which are relevant to the investigation; (c) further information required from the licensee in order to complete the investigations; and (d) where appropriate, the steps to be taken in order to remedy breach.

(3) The licensee issued with a notice under sub-section (2) may, within thirty days from the date of the notice, make representations Kenya Information and Communications CAP.

411A 81 Rev.

2011] in response to the notice and give to the Commission all information required under the notice.

(4) Any person affected by the contravention or breach of fair competition may similarly make representation to the Commission in relation thereto.

(5) The Commission shall, after considering any representations of the licensee or any other person xa date on which to make a decision on the matter.

(6) Where the Commission makes a decision that a licensee is competing unfairly, the Commission may (a) order the licensee to stop the unfair competition; (b) require the licensee to pay a ne not exceeding the equivalent of ten percent of the annual turnover of the licensee for each nancial year that the breach lasted upto a maximum of three years; (c) declare any anti-competitive agreement or contracts null and void.

(7) The provisions of subsection (6) shall not in any way affect the right of any person to make and sustain any claim under any law in force in Kenya for the act or omission which constitutes an offence under this Act or from being liable under that other written law to any punishment or penalty higher than that prescribed under this Act.

(8) Any person aggrieved by the decision of the Commission under this section may appeal to the Tribunal.

(9) The provisions of this section, shall not limit or in any way affect the obligations of a licensee under any condition of a licence.

84U.

No licensee under this Act shall deny access or service to a Denial of access.

customer except for delinquency of payment of dues or for any other 1 of 2009, s.

31.

just cause.

84V.

A licensee shall provide equal opportunity for access to Anti-competitive the same type and quality of service to all customers in a given area practices and at substantially the same tariff limiting variations to available or conduct.

appropriate technologies required to serve specic customers.

1 of 2009, s.31.

84W.

(1) The Minister may in consultation with the Commission Regulations on make regulations with respect to competition issues.

competition issues.

1 of 2009, s.31.

82 CAP.

411A Kenya Information and Communications [Rev.

2011 (2) Without prejudice to the generality of the foregoing, the Minister in consultation with the Commission may make regulations with respect to (a) access, including rules of interconnection, by licensees under this Act and their subscribers to each others network; (b) the procedure of handling alleged breaches of fair competition; (c) investigation of a licensee under this Act alleged to have committed acts or omissions in breach of fair competition; (d) access to information from any licensee with regard to facilitating investigations on alleged breaches of fair competition; (e) steps to be taken in order to remedy the breach; (f) denition of market segments; (g) market segments in respect of which limited competition may be allowed.

(2) A dominant telecommunications service provider shall le tariffs, rates, terms, and conditions of interconnection with the Commission.

(3) The Commission may, by notice in the Gazette, declare a person or institution to be a dominant telecommunications service provider for the purposes of this Act.

(4) In making a declaration under subsection (4), the Commission shall consider (a) the market share of the telecommunications service provider being at least twenty ve per cent of the total revenue of the entire telecommunications market; (b) the level of control over the communications infrastructure; (c) the level of technological advancement of the telecommunications service provider; (d) the scale of operations of the telecommunications service Kenya Information and Communications CAP.

411A 83 Rev.

2011] provider.

Part vIImIsCellaneous ProvIsIons 84.

(1) There is established a Secretariat to be known as the National National Communication Secretariat, headed by a Communications Communication Secretariat.

secretary and comprising such other ofcials as may be determined from time to time.

(2) The function of the Secretariat shall be to advise the Government on the adoption of a communication policy which (a) promotes the benets of technological development to all users of postal and telecommunication facilities; (b) fosters national safety and security, economic prosperity and the delivery of critical social services through posts and telecommunications; (c) facilitates and contributes to the full development of competition and efciency in the provision of services both within and outside Kenya; and (d) fosters full and efcient use of telecommunication resources including effective use of the radio spectrum by the Government in a manner which encourages the most benecial use thereof in the public interest.

85.

(1) Subject to subsection (3), a telecommunication operator Power of operator to may, with the consent in writing of the owner or occupier of any land, use land.

and subject to such terms and conditions as may be agreed upon between the operator and the owner or occupier, place or maintain under, over, along, across, in or upon such land, any telecommunication apparatus or such radio-communication apparatus, installed or used in accordance with a radio-communication licence.

(2) Upon an agreement under subsection (1), it shall be lawful for the telecommunication operator or its representatives, at all times and on reasonable notice, to enter upon the land and to (a) put up any posts, which may be required for support of any telecommunication lines; (b) fasten or attach to any tree growing, on that land a bracket or other support for the line; (c) cut down any tree or branch which is likely to injure, impede 84 CAP.

411A Kenya Information and Communications [Rev.

2011 or interfere with any telecommunication lines; or (d) perform any activities necessary for the purpose of establishing, constructing, repairing, improving, examining, altering or removing any telecommunication apparatus or radio-communication apparatus, or for performing any other activities in accordance with the provisions of this Act.

(3) Notwithstanding any agreement under subsection (1) a telecommunication operator shall not, except with the consent of the owner or occupier of the land (a) acquire any right other than that of user of such land under, over, along, across, in or upon which any telecommunication apparatus or radio communication apparatus is placed and only for such purposes as the parties have agreed; (b) exercise those powers in respect of any land vested in or under the control of a local authority, except in accordance with a procedure set out in section 86.

(4) A telecommunication operator shall ensure that as little damage as possible is caused to the land and to the environment by reason of the exercise of the powers conferred by this section and shall pay fair and adequate compensation to the owner or occupier of the land for any damage or loss sustained by reason thereof.

(5) Any dispute arising between an operator and the owner or occupier of any land with respect to the provisions of this section may be referred to the Tribunal for adjudication within thirty days of the dispute.

Co-location.

85A.

(1) Co-location at sites and facilities may be done with prior agreement of licenses.

1 of 2009, s.

32.

(2) When no agreement on co-location is reached, the licensees may refer the issue to the Commission for a decision.

Procedure for using 86.

(1) Where a telecommunication operator licensed by the public land.

Commission intends to enter any land under the control of a local authority or other public body, the telecommunication operator shall seek the consent of the local authority or public body stating the nature and extent of the acts to be done.

(2) The local authority or other public body may, upon request under subsection (1), permit the telecommunication operator to exercise any or all of the powers under section 85 (2), subject to such conditions, Kenya Information and Communications CAP.

411A 85 Rev.

2011] including the payment of any fee for the use of the property, the time or mode of execution of any works, or for any other related activity undertaken by the telecommunication operator under the section as may be agreed between the telecommunication operator and the authority.

(3) An operator dissatised with the terms or conditions imposed by the local authority under subsection (1), may apply to the Commission for the review of such terms or conditions.

(4) A person aggrieved by the decision of the Commission under subsection (3) may appeal to the Tribunal within thirty days of such decision.

87.

(1) Where, upon application by a telecommunication operator Compulsory purchase of land.

the Commission considers that it is necessary land, for the purpose of providing telecommunication services to the public, the Commission may apply to the Commissioner of Lands to acquire the land on behalf of the telecommunication operator.

(2) Upon application by the Commission under subsection (1), the Commissioner of Lands may, if satised that it is in the public interest to do so, acquire the land in accordance with the provisions of Cap.

301.

the Land Acquisition Act.

(3) Where land is acquired on behalf of a telecommunication operator under subsection (2), such operator shall bear all costs in relation thereto.

88.

(Deleted by 6 of 2009, Sch.) 89.

(1) If a court is satised by information on oath that there is Entry and search of reasonable ground for suspecting that an offence under the provisions premises, etc.

of this Act has been or is being committed, and that the evidence of the commission of the offence is to be found on any premises specied in the information, or in any vehicle, vessel or aircraft so specied, it may grant a search warrant, authorising any person or persons authorised in that behalf by the Commission and named in the warrant, with any police ofcer, to enter, at any time within one month from the date of the warrant, the premises specied in the information or, as the case may be, the vehicle, vessel or aircraft so specied and to search such premises, vehicle, vessel or aircraft, and to examine and test any station or apparatus or obtain any article or thing found in such premises, vessel, vehicle or aircraft.

(2) If a court is satised that (a) it is necessary to enter any specied premises, vessel, aircraft 86 CAP.

411A Kenya Information and Communications [Rev.

2011 or vehicle, for the purpose of obtaining such information which will enable the Commission to gather necessary evidence in accordance with the provision of subsection (1); (b) access to such premises, vessel, aircraft or vehicle for the purpose of obtaining such evidence as aforesaid has, within seven days before the date of the application to the court, been sought by a person duly authorised in that behalf by the Commission and has been denied, the court may grant written authorisation under its hand and seal empowering any person or persons authorised in that behalf by the Commission and named in the authorisation, with any police ofcer, to enter and search the premises or as the case may be, the vessel, aircraft or vehicle with a view to discovering whether any station, apparatus, article or thing as aforesaid is situate thereon, and to examine and test it with a view to obtaining such information as aforesaid: Provided that an authorisation shall not be issued under this subsection unless either (i) it is shown to the court that the Commission is satised that there are reasonable grounds for believing that the use of the station or apparatus in question is likely to cause undue interference with any radio-communication used for the purposes of any safety-of life-service or any purpose on which the safety of any person or of any ves- sel, aircraft or vehicle may depend; or (ii) it is shown to the court that not less that seven days notice of the demand for access was served on the owner or occupier of the premises, or, the person in possession or in charge of the vessel, aircraft or vehicle, and that the demand was made at a reasonable hour and was unreasonably denied.

(3) Where under this section a person is authorised to examine and test any telecommunication system or telecommunication apparatus or radio-communication apparatus on any premises or in any vessel, aircraft or vehicle, it shall be the duty of any person who is on the premises, or is in charge of, or in attendance on, the vessel, aircraft or vehicle, to give such authorised person such assistance as he may reasonably require in the examination or testing of such station or such apparatus.

(4) Any person who (a) obstructs any authorised person in the exercise of the powers Kenya Information and Communications CAP.

411A 87 Rev.

2011] conferred on him under this section; or (b) fails or refuses to give to any such authorised person any assistance which he is, under this section, under a duty to give to him; or (c) discloses, otherwise than for the purpose of this Act or any report of proceedings thereunder, any information by means of the exercise of powers under this Act, being information with regard to any manufacturing process or trade secret, commits an offence and shall be liable on conviction to a ne not exceeding ve hundred thousand shillings, or to imprisonment for a term not exceeding three years or to both.

(5) For purposes of this section court means a Resident Magistrates Court.

90.

(1) A search warrant granted under section 89 may authorise Seizure of apparatus, article or other the person or persons named in it to seize and detain, for the purposes property.

of any relevant proceedings, any radio-communication apparatus, telecommunication apparatus, article or other thing found in the course of the search carried out in pursuance of the warrant which appears to have been used in connection with or to be evidence of the Commission of any offence under this Act.

(2) If a police ofcer or any person authorised by a warrant to exercise the power conferred under this section has reasonable grounds to suspect that an offence under this Act has been or is being committed, he may seize and detain, for the purposes of any relevant proceedings, any radio-communication apparatus, telecommunication apparatus article or other thing which appears to have been used in connection with or to be evidence of the Commission of any such offence.

(3) Nothing in this section shall prejudice any power to seize or detain property which is exercisable by a police ofcer under the Cap.

84.

Police Act.

(4) Any person who intentionally obstructs the authorised person in the exercise of the power conferred on him under subsection (3) commits an offence and shall be liable on conviction to a ne not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding one year or to both.

91.

(1) Where a person is convicted of an offence under this Forfeiture of property Act for contravening of any of the provisions relating to any radio used in commission of offence.

communication station or telecommunication system, or any radio 88 CAP.

411A Kenya Information and Communications [Rev.

2011 communication apparatus, or any telecommunication apparatus, or in the use of any apparatus for the purpose of interfering with any radio communication or telecommunication, or uses any article or property for disrupting the postal services in contravention of any of the provision of this Act, the court may, in addition to any other penalty, order all or any of the apparatus of the telecommunication system, the radio-communication station or any such other apparatus, or article or property in connection with which the offence was committed, to be forfeited to the Commission: Provided that the provisions of this subsection shall not apply to radio-communication apparatus not designed or adapted for transmission (as opposed to reception).

(2) The court by which any such apparatus, article or property is ordered to be forfeited under this section may also order the person, by whom the offence giving rise to the forfeiture was committed, not to dispose off that apparatus, article or property except by delivering it to the Commission within such period as the court may deem t.

(3) If a person against whom an order is made under subsection (2) contravenes that order or fails to deliver such apparatus, article or property to the commission as required, he shall be guilty of a further offence which, for the purpose of determining the appropriate penalty shall be treated as an offence under the same provision as the offence for which the forfeiture was ordered.

Disposal of property 92.

(1) Any property seized by a person authorised by a warrant seized under section under section 89 may be detained 90.

(a) until the end of the period of six months from the date of the seizure; or (b) if proceedings in respect of an offence involving that property are instituted within that period, until the conclusion of those proceedings, or such shorter period as the court may order.

(2) After the end of the period for which its detention is authorised by virtue of subsection (1) above, any such property which: (a) remains in the possession of the Commission, and (b) has not been ordered to be forfeited under section 91.

shall be dealt with in accordance with the following provisions of this section.

Kenya Information and Communications CAP.

411A 89 Rev.

2011] (4) The Commission shall take reasonable steps to deliver the property to the person who, in the opinion of the Commission, is the owner of that property and such owner shall indemnify the Commission against any claims that may arise under sub-section (5).

(5) Where the property remains in the possession of the Commission after the end of the period of one year immediately following the end of the period for which its detention is authorised under subsection (1), the Commission may dispose of it in such manner as it thinks t.

(6) The delivery of the property in accordance with subsection (3) to any person appearing to the Commission to be its owner shall not affect the right of any other person to take legal proceedings against the person to whom it is delivered or against anyone subsequently in possession of the property for the recovery of that property.

93.

(1) No information with respect to any particular business General restrictions which on disclosure of information.

(a) has been obtained under or by virtue of the provisions of this Act; and (b) relates to the private affairs of any individual or to any particular business, shall, during the lifetime of that individual or so long as that business continues to be carried on be disclosed by the Commission or by any other person without the consent of that individual or the person for the time being carrying on that business.

(2) Subsection (1) shall not apply to any disclosure of information which is made (a) for the purpose of facilitating the performance of any statutory functions of the Commission; or (b) in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings; or (c) for the purpose of any civil proceedings brought under or by virtue of this Act.

(3) Any person who discloses any information in contravention of this section commits an offence and shall on conviction be liable to a ne not exceeding one hundred thousand shillings.

90 CAP.

411A Kenya Information and Communications [Rev.

2011 Powers in relation 94.

(1) Subject to subsection (7), any person who establishes or to electricity operates, under any written law or otherwise, any undertaking for the undertakers, etc.

supply of electricity (in this section referred to as the undertaker) or any person who constructs, equips or operates a railway by means of electricity (in this section referred to as the railway operator) shall, at least one month before erecting, placing or altering the position of any line or wire for the transmission of such electricity, forward to the telecommunication operator within the area within which such work is to be executed, or to the public postal licensee where any post ofce or other property is likely to be affected a notice in writing of his intention to execute such work together with a plan of the proposed work, and the undertaker or the railway operator shall also give to the telecommunication operator, or as the case may be, the public postal licensee all such other information as he may require in order to determine whether such work is likely to interfere unduly with any telecommunication or postal services.

(2) Where an undertaker has given notice in writing in accordance with subsection (1), the telecommunication operator, or as the case may be, the public postal licensee within one month of the receipt of such notice, shall inform the undertaker in writing that the proposed work has either been approved or that, in accordance with subsection (3), certain requirements are considered necessary to be effected or that the matter referred to in the notice is receiving attention, and in the event of no such notication in writing being so given, the position of any electric supply line specied in the notice given in accordance with subsection (1) shall, for the purposes of this Act, be deemed to have been approved in writing.

(3) If the telecommunication operator, or as the case may be, the public postal licensee considers that any such work is likely to interfere unduly with any telecommunication or postal services provided by or under the authority of the Commission, he may inform the undertaker or the railway operator of any requirements he may consider necessary to be effected by the undertaker or the railway operator in order to remove or lessen such anticipated interference, and in so doing he shall have regard not only to the interests of such telecommunication or postal services, but also to the interests of all persons supplied or who may be supplied with electricity by the undertaker and of all persons using the facilities provided by the railway operator.

(4) If the undertaker or the railway operator does not agree to effect such requirements, or any altered requirements communicated to him under subsection (3) the matter shall be referred to the Minister for the time being responsible for public lands, and the undertaker or the railway operator shall not proceed with the execution of such work until that Minister has given his decision thereon.

Kenya Information and Communications CAP.

411A 91 Rev.

2011] (5) Where any matter has been referred to the Minister for the time being responsible for public lands under this section, that Minister may appoint any person or committee to investigate the matter and to report thereon to him.

(6) After consideration of the report of any such person or committee, the Minister responsible for public lands may, after giving the parties reasonable opportunity of being heard, give such decision as he may think t, and may specify what requirement, if any, the undertaker or the railway operator shall comply with in executing any such work and any such decision shall be nal; (7) The Commission may, by notice in the Gazette, specify general requirements to be observed by any undertaker or railway operator when erecting, placing or altering the position of any electric supply line, and in any such notice the Commission may provide that it shall not be necessary: (a) for any undertaker or railway operator effecting any specied class of work; or (b) for any specied class of undertaker or railway operator, to give to the telecommunication operator, or the public postal licensee notice referred to in subsection (1) if, in effecting any work, any such undertaker or railway operator proposes to comply with such general requirements.

95.

Where any person erects any building or structure which Structures likely to interfere with is likely to cause interference with the telecommunication, or radio telecommunication or communication or postal services, telecommunication operator or as postal services.

the case may be, the public postal licensee may, unless such person has previously obtained the approval in writing of such operator or licensee to the erection of such building or structure or has modied it to the satisfaction of the said operator or licensee, require such person to pay to the said operator or the licensee the amount of any expenditure necessarily incurred by him in the removal of any installation, apparatus or equipment in order not to interfere with telecommunication, radio- communication or postal services.

96.

(1) Where any offence under this Act has been committed Offences by by a company or body corporate, every person who at the time of the companies.

commission of the offence was a director, general manager, company secretary or other similar ofcer of such company or body corporate, or was purporting to act in any such capacity, shall be deemed also to be guilty of that offence, unless he proves that the offence was committed without his consent or connivance and that he exercised all such 92 CAP.

411A Kenya Information and Communications [Rev.

2011 diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.

(2) Where a person is convicted of an offence under this Act in relation to the unlawful use of any telecommunication system or radio communication apparatus, or to the use of any apparatus or property for the purpose of interfering with any telecommunication, radio communication or postal services, the court may, in addition to any other penalty, order all or any of the apparatus or property with which the offence was committed to be forfeited to the Commission.

(3) Where the affairs of the company or body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of that Company or body corporate.

Property of the 97.

(1) Where any employee of the Commission dies or leaves the Commission in the service of the Commission and at the time of such death or termination custody of employee.

of service any premises of the Commission were occupied by him or any property of the Commission was in his possession, it shall be the duty of such employee or, in the event of his death, of the person in whose possession such property may be or who may be occupying such premises, as soon as practicable, to deliver such property to the Commission or to vacate such premises.

(2) If any property or premises to which subsection (1) refers, is not delivered to the Commission or vacated, the Director General shall give notice in writing to the person appearing to him to be in possession of such property or in occupation of such premises to deliver to the Commission such property or vacate such premises within such time as may be specied in the notice and if such property is not so delivered or such premises are not so vacated within such time, the Director General may, without prejudice to any other means of recovery, apply to a Resident Magistrate for an order empowering a police ofcer to enter and search any house or building where such property is believed to be and to deliver such property, if found, to the Commission or, as the case may require, to evict from such premises any person found therein.

Limitation.

98.

Where any action or other legal proceeding is commenced against the Commission for any act done in pursuance or execution, or intended execution of this Act or of any public duty or authority, or in respect of any alleged neglect or default in the execution of this Act or of any such duty or authority, the following provisions shall have effect Kenya Information and Communications CAP.

411A 93 Rev.

2011] (a) the action or legal proceeding shall not be commenced against the Commission until at least one month after written notice containing the particulars of the claim, and of intention to commence the action or legal proceedings, has been served upon the Director General by the plaintiff or his agent; (b) the action of legal proceeding shall not lie or be instituted unless it is commenced within twelve months of the act, neglect or default complained of or, in the case of a continuing injury or damage, within six months next after the cessation thereof.

99.

Notwithstanding anything to the contrary in any law Restriction on execution against (a) where any judgment or order has been obtained against the property of Commission.

Commission no execution or attachment, or process in the nature thereof, shall be issued against the Commission or against any property of the Commission, where the Director General shall, without delay, cause to be paid out of the revenue of the Commission such amounts as may, by the judgment or order, be awarded against the Commission to the person entitled thereto; (b) no property of the Commission shall be seized or taken by any person having by law power to attach or restrain property without the previous written permission of the Director General.

100.

Any notice or other document required or authorised under Service of notice etc.

this Act to be served on the Commission may be served on Director General.

(a) by delivering of the notice or other document to the Director General or to any authorised employee of the Commission; or (b) by leaving it at the ofce of the Director General; or (c) by sending it by registered post to the Director General.

101.

Any notice or other document required or authorised under Service of notice etc., this Act to be served on any person by the Commission or the Director by Director General.

General or any employee may be served (a) by delivering it to that person; or (b) by leaving it at the usual or last known place of abode of that person; or 94 CAP.

411A Kenya Information and Communications [Rev.

2011 (c) by sending it by registered post addressed to that person at his usual or last known address.

Establishment and 102.

(1) There shall be established an Appeals Tribunal for the constitution of purpose of arbitrating in cases where disputes arise between the parties Appeals Tribunal.

under this Act and such matters as may be referred to it by the Minister which shall consist of 1 of 2009, s.33, 6 of 2009, Sch.

(a) a chairman who shall be a person who holds or has held a judicial ofce in Kenya or who is an advocate of not less than seven years standing and entitled to practice before any of the courts of Kenya; and (b) two other members who are persons possessing, in the opinion of the Minister, expert knowledge of the matters likely to come before the Tribunal and who are not in the employment of the Government or the Corporation; (c) two other members who shall be nominated by the Media No.

3 of 2007.

Council established under the Media Act, 2007, and appointed by the Minister.

(2) The chairman and other members of the Tribunal shall be appointed by the Minister in consultation with the Attorney-General and the provisions set out in the second Schedule shall have effect in relation to the membership, procedure and sittings of the Tribunal.

(3) The Minister may from time to time publish in the gazette amend the schedule as he deems t.

(4) The members of the Tribunal shall hold ofce for a period of three years but shall be eligible for reappointment for one further term of a period not exceeding three years.

Universal Service 102A.

(1) There is established a Council to be known as the Advisory Council.

Universal Service Advisory Council.

1 of 2009, s.

34.

(2) The Council shall consist of a maximum of seven members as follows (a) a chairman appointed by the Minister in consultation with the Board; (b) at least four members appointed by the Minister in consultation with the Board.

Kenya Information and Communications CAP.

411A 95 Rev.

2011] (3) The Council may, upon approval by the Board, co-opt experts as it considers necessary.

(4) In appointing members of the Council under sub-section (2), the Minister shall have regard to appoint persons who (a) have knowledge or experience in broadcasting, telecommunication, postal systems, information technology or nance; (b) have satised the Minister that they are unlikely to have a conict of interest under this Act and will not have any nancial or other interest which will be likely prejudicially affect the carrying out of any functions under this Part; Provided that an authorization shall not be issued under this sub-section unless either (i) it is shown to the court that the Commission is satised that there are reasonable grounds for believing that the use of the station or apparatus in question is likely to cause undue interference with any radio-communication used for the purposes of any safety-of life-service or any purpose on which the safety of any person or of any ves- sel, aircraft or vehicle may depend; or 103.

(1) The Kenya Posts and Telecommunication Corporation Repeal of Cap.

411 Act is repealed.

and savings.

(2) The provisions of the Third Schedule shall, upon the repeal of the Kenya Posts and Telecommunications Corporation Act, have effect with respect to the transfer of the functions, assets liabilities of the former corporation to the Company, the Corporation and the Commission, as the case may be, and to all matters incidental to such transfer.

FIRST SCHEDULE (s.

8) PROVISIONS AS TO THE CONDUCT OF BUSINESS AND AFFAIRS OF THE BOARD.

1.

(1) The chairman or a member of the Board other than an Tenure of ofce.

ex-ofcio member shall, subject to the provisions of this Schedule, hold ofce for a period not exceeding four years, on such terms and conditions as may be specied in the instrument of appointment but shall be eligible for re-appointment for one more term of a period not exceeding four years.

96 CAP.

411A Kenya Information and Communications [Rev.

2011 (2) The members of the Board shall be appointed at different times so that the respective expiry dates of their terms of ofce shall fall at different times.

2.

A member other than the chairman or an ex-ofcio member Vacation of ofce.

may (a) at any time resign from ofce by notice in writing to the Minister; (b) be removed from ofce by the Minister if the member (i) has been absent from three consecutive meetings of the Board without the permission from chairman; or (ii) is adjudged bankrupt or enters into a composition scheme or arrangement with his creditors; or (iii) is convicted of an offence involving dishonesty or fraud; or (iv) is convicted of a criminal offence and sentenced to im- prisonment for a term exceeding six months or to a ne exceeding ten thousand shillings; or (v) is incapacitated by prolonged physical or mental illness; or (vi) fails to comply with the provisions of this Act relating to disclosure; or (vii) is engaged in a communications organization which operates on telecommunication system or provides tele- communication services or is engaged in the manufacture or distribution of telecommunication equipment in Kenya as an owner, shareholder, partner or otherwise, whether directly or indirectly.

Meetings.

3.

(1) The Board shall meet not less than four times in every nancial year and not more than four months shall elapse between the date of one meeting and the date of the next meeting.

(2) Notwithstanding the provisions of subparagraph (1), the chairman may call a special meeting at any time where he deems it expedient for the transaction of the business of the Board.

Kenya Information and Communications CAP.

411A 97 Rev.

2011] (3) The members of the Board shall, at the rst meeting of the Board, elect from amongst their number, a vice-chairman and an honorary treasurer.

(4) Unless three quarters of the total members of the Board otherwise agree, at least fourteen days written notice of every meeting of the Board shall be given to every member of the Board.

(5) The quorum for the conduct of the business of the Board shall be seven members excluding the chief executive ofcer.

(6) The chairman shall preside at every meeting of the Board at which he is present but in his absence, the vice-chairman shall preside and, in his absence, the members present shall elect one of their number who shall, with respect to that meeting and the business transacted thereat, have all the powers of the chairman.

(7) Unless a unanimous decision is reached, a decision on any matter before the Board shall be by a majority of votes of the members present and in the case of an equality of votes, the chairman or the person presiding shall have a casting vote.

(8) Subject to paragraph (5), no proceedings of the Board shall be invalid by reason only of a vacancy among the members thereof.

(9) Subject to the provisions of this Schedule, the Board may determine its own procedure and the procedure for any committee of the Board and for the attendance of any other persons at its meetings and may make standing orders in respect thereof.

4.

(1) If a member is directly or indirectly interested in any Disclosure of interests.

contract, proposed contract or other matter before the Board and is present at a meeting of the Board at which the contract, proposed contract or other matter is the subject of consideration, he shall, at the meeting and as soon as practicable after the commencement thereof, disclose the fact and shall not take part in the consideration or discussion of, or vote on, any questions with respect to the contract or other matter, or be counted in the quorum of the meeting during consideration of the matter: Provided that if the majority of the members present are of the opinion that the experience or expertise of such member is vital to the deliberations of the meeting, the Board may permit the member to participate in the deliberations subject to such restrictions as it may impose but such member shall not have the right to vote on the matter in question.

98 CAP.

411A Kenya Information and Communications [Rev.

2011 (2) A disclosure of interest made under this paragraph shall be recorded in the minutes of the meeting at which it is made.

The common seal.

5.

The afxing of the common seal of the Board shall be authenticated by the signatures of the chairman and the chief executive ofcer and any document required by law to be made under seal and all decisions of the Board may be authenticated by the signatures of the chairman and the chief executive ofcer.

Provided that the Board shall, in the absence of either the chairman or the chief executive ofcer, in any particular matter, nominate one member to authenticate the seal of the Board on behalf of either the chairman or the chief executive ofcer.

Minutes.

6.

The Board shall cause minutes of all proceedings, of meetings of the Board to be entered in books kept for that purpose.

SECOND SCHEDULE (s.

102) MEETINGS AND PROCEDURE OF THE APPEALS TRIBUNAL Appointment of 1.

The members of the Tribunal shall hold ofce for a period, not Members.

exceeding two years, such member shall hold and vacate his ofce in accordance with the terms and conditions of his appointment.

Resignation.

2.

Any member may at any time by notice in writing to the Minister resign his ofce.

3.

(1) If a member of the Tribunal becomes a member of the Vacation of Ofce of Member.

Board or, in the case of a member other than the chairman is appointed to the service of the Government or the Commission his ofce shall become vacant.

(2) The chairman or a member of the Tribunal may be removed from ofce by the Minister if he is (a) unable to discharge the functions of his ofce by reason of mental or physical inrmity; or (b) an undischarged bankrupt; or (c) convicted of an offence involving fraud or dishonesty; or (d) convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months or a ne Kenya Information and Communications CAP.

411A 99 Rev.

2011] exceeding ten thousand shillings.

4.

If any member of the Tribunal has any interest in any particular Disclosure of proceedings before the Tribunal he shall so inform the Minister and the interests.

Minister may, after considering that interest, appoint another member in his place for the purpose of the particular proceedings.

5.

Where the ofce of any member becomes vacant, whether by Vacancy.

death or otherwise, the Minister may appoint another person to be a member of the Tribunal for the remainder of the term of the member whose vacancy caused the appointment.

6.

In the event of the inability of any member of the Tribunal to Temporary members.

attend for the purpose of any particular proceedings, the Minister may appoint a temporary member for the purposes of those proceedings.

7.

The decision of the Tribunal shall be that of the majority and Majority decisions.

shall be signed by the members thereof agreeing thereto.

8.

The Tribunal shall have the powers of the High Court Powers.

(a) to administer oaths to the parties and witnesses to the proceedings; (b) to summon witnesses and to require the production of documents; (c) to order the payment of costs; and the provisions of the law relating to Commissions of Inquiry in Kenya with respect to: (i) the protection of the members of the Tribunal from suit; (ii) the form of summonses to witnesses; (iii) the giving or fabricating of false evidence; (iv) the duty and indemnity of witnesses, and the penalty for contumacy, insult or interruption of proceedings; and (v) the appearance of advocates; shall with any necessary adaptations or modications, apply to the members of, the witnesses before, and the proceedings before, the Tribunal in like manner as they apply to Commissions of Inquiry.

9.

The Tribunal shall sit at such place as it may consider most Venue.

100 CAP.

411A Kenya Information and Communications [Rev.

2011 convenient having regard to all the circumstances of the particular proceedings.

Rules.

10.

Subject to the provisions of this Schedule, the Tribunal shall have power to make rules governing its procedure.

Proof of documents.

11.

A document purporting to be a copy of any order of the Tribunal, and certied by the Chairman to be a true copy thereof, shall in any legal proceedings be prima facie evidence of the order.

THIRD SCHEDULE (s.

103) TRANSITIONAL PROVISIONS Interpretation.

1.

In this Part, unless the context requires otherwise; assets include all property movable or immovable and all estates, easements and rights whether equitable or legal in, over or out of property, choses-in-action, money or goodwill of the former Corporation whether situated in Kenya or elsewhere; Company means the Telkom Kenya Limited registered under Cap.

486.

the Companies Act, and having its registered ofce at Nairobi; Corporation means the Postal Corporation of Kenya established by the Postal Corporation of Kenya Act, 1998; former Corporation means the Kenya Posts and Telecommunications Corporation Act (now repealed).

liabilities means liabilities, debts, charges, duties and obligations of every description, whether present or future, actual or contingent, and whether to be observed or performed in Kenya or elsewhere; rights means all rights, powers, privileges and immunities whether actual, contingent or prospective, whether observed or performed in Kenya or elsewhere; vesting day means the day specied by the Minister for Finance under paragraphs 5 of this Schedule.

Licenses granted 2.

Notwithstanding the repeal of the Kenya Posts and former Corporation.

Telecommunications Act, all licences granted by the former Corporation shall be deemed to be granted by the Commission under the corresponding provisions of this Act and shall remain in force until they are revoked in accordance with any terms in that regard set out in Kenya Information and Communications CAP.

411A 101 Rev.

2011] the licence and replaced by licences granted under this Act.

3.

The Board of Directors of the former Corporation shall Winding up of former remain in ofce for the purpose of winding up the affairs of the former Corporation.

Corporation: Provided that the Minister may by notice in the Gazette dissolve the Board of Directors referred to in this subsection upon the completion of the winding up of the affairs of the former Corporation.

4.

The exclusive privilege conferred upon the former Corporation Cessation of by the Kenya Posts and Telecommunications Corporation Act (now exclusive privilege.

repealed) with respect to providing Cap.

411.

(a) telephone services and constructing, maintaining and operating telephone apparatus conferred on the former Corporation by section 59 (1); and (b) telegraph services and of constructing, maintaining and operating telephone apparatus conferred on the former Corporation by section 70; shall lapse upon the commencement of this provision.

5.

(1) The Minister for Finance may by notice in the Gazette, Transfer of assets specify the date or dates and the manner in which the assets and liabilities and liabilities of the of the former Corporation shall be transferred to and vested in former Corporation.

(a) the Commission, in respect of assets and liabilities relating to regulatory services; (b) the Company, in respect of assets and liabilities relating to telecommunication services; and (c) the Corporation, in respect of assets and liabilities relating to postal services.

(2) References in this Schedule to assets and liabilities of the former Corporation shall be references to all such assets and liabilities, whether or not capable of being transferred or assigned by the former Corporation.

(3) A notice under subsection (1) shall specify the assets and liabilities of the former Corporation which are to be transferred to the Commission, the Company, or the Corporation, as the case may be.

(4) If, on the vesting day, any suit, appeal, arbitration or other 102 CAP.

411A Kenya Information and Communications [Rev.

2011 proceedings of whatever nature and wheresoever instituted in relation to the business of the former Corporation which is by virtue of this section, transferred to the Commission, Company, or, the Corporation, as the case may be, shall not abate, be discontinued or be in any way prejudicially affected by reason of such transfer of the business of the former Corporation or of anything contained in this Act, and any suit, appeal arbitration or other proceedings shall be continued, and enforced by or against the Commission, Company or, the Corporation, as the case may be.

(5) In the case of assets and liabilities arising under any loans which vest in the Commission, the Company or the Corporation, as the case may be on the vesting day, the Commission, the Company or the Corporation as the case may be, may enter into such arrangements or agreements over such rights and liabilities with the Government or any other third party.

(6) Any assets and liabilities of the former Corporation which are not to be vested either in the Commission, the Company or the Corporation as the case may be, shall be disposed of in such manner as the Minister for Finance shall determine.

Transfer of other Assets.

6.

(1) The Minister for Finance may, by order published in the Gazette, from time to time, provide that any property registered in the name of the Cable and Wireless Company, (Kenya), the East African External Telecommunication Company, the Post Master General, or Cap.

486.

the East African Posts and Telecommunication Corporation, companies incorporated under the Companies Act, which had not been transferred to the former Corporation, shall on the date mentioned in the order, be deemed to have been transferred to and registered in the name of the Commission, the Company, or the Corporation, as the case may be.

(2) Except as otherwise provided in this Act, any agreement made, transaction effected or other thing done by, to or in relation to the former Corporation which is in force or effective immediately before the vesting day shall have effect as from that day as if made, effected or done by, to or in relation to the Commission, the Company or the Corporation as the case may be, were the same person, in law, as the former Corporation, and accordingly, references to the former Corporation (a) in any agreement (whether or not in writing) and in any deed, bond or instrument; and (b) in any other document whatsoever (other than an enactment) relating to or affecting any asset or liability of the former Corporation which vests by virtue of paragraph 5 of this Schedule in the Commission, the Company or the Kenya Information and Communications CAP.

411A 103 Rev.

2011] Corporation, as the case may be, shall be taken with effect from the vesting date as referring to the Commission, the Company or the Corporation, as the case may be.

7.

(1) Every person who at the commencement of this Act is an Employees.

employee of the former Corporation, not being under notice of dismissal or resignation, shall on the vesting day, become an employee of the Commission, the Company or, the Corporation, as the case may be, as may be respectively specied by the Minister on the same or improved terms and conditions of service.

(2) Where on the vesting day (a) any disciplinary proceedings against any employee of the former Corporation, are in the course of being heard or instituted, or have been heard or investigated by the former Corporation but no order or decision has been made thereon; or (b) any such employee is interdicted or suspended, the Commission, Company, the Corporation, as the case may be, shall (i) in the case of paragraph (a), carry on and complete the hearing or investigation and make an order or render a decision, as the case may be; and (ii) in the case of paragraph (b), deal with such employee in such manner as it thinks appropriate having regard to the offence committed by him, including the completion of disciplinary proceedings making of an order or the rendering of a decision, as the case may be, as if such disciplinary proceedings have been commenced by the Commission, the Company, or the Corporation, as the case may be.

(3) Where on the vesting day, any penalty (other than dismissal) has been imposed on any employee of the former Corporation pursuant to disciplinary proceedings against him and the penalty has not been, or remains to be, serviced by such employee, he shall on his transfer to the Commission, the Company, or, the Corporation, as the case may be, under subsection (1) serve or continue to serve such penalty to its full term as if it had been imposed by the Commission, the Company or, the Corporation as the case may be.

8.

Where any person whose services are transferred to the Pensions.

Commission, the Company, or the Corporation, as the case may be, 104 CAP.

411A Kenya Information and Communications [Rev.

2011 is on the vesting day, a member of any statutory or voluntary pension scheme or provident fund he shall, for the purpose of this Act, continue to be governed by the same regulations under those schemes or funds as if he had not been so transferred, and for purposes of the regulations governing those schemes or funds his service with the Commission, the Company or the Corporation, as the case may be, shall be deemed to be service in the former Corporation.

Former employees.

9.

The Commission, the Company or the Corporation, as the case may be, shall continue to be liable to former employees of the former Corporation, who have retired on the vesting day for such pension benets payable as they are entitled to under the regulations of those pension schemes.

FOURTH SCHEDULE (sec.

102A) 1 of 2009, s.

35.

PROVISIONS AS TO THE UNIVERSAL SERVICE ADVISORY COUNCIL 1.

The Chairman and members of the Council shall, subject to Tenure of ofce.

the provisions of this Schedule, hold ofce for a period not exceeding three years on such terms and conditions as may be specied in their instrument of appointment, but shall be eligible for reappointment for one more term of a period not exceeding three years.

Appointment of 2.

The members of the Council shall be appointed at such times members.

that their respective terms of ofce shall expire at different times.

Vacation of ofce.

3.

A member of the Council may: (a) at any time by notice in writing addressed to the Minister, resign his ofce; (b) be removed from ofce by the Minister if the member (i) has been absent from three consecutive meetings of the Council without permission from the chairman; (ii) is adjudged bankrupt or enters into a composition or scheme of arrangement with creditors; or (iii) is convicted of an offence involving dishonesty or fraud; (iv) is convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months or a ne Kenya Information and Communications CAP.

411A 105 Rev.

2011] exceeding ten thousand shillings; or (v) is incapacitated by prolonged physical or mental illness; or (vi) fails to comply with the provisions of the Act relating to disclosure.

4.

The names of persons appointed to be members of an advisory Gazettement of council and the interests they represent and the names of persons ceasing members.

to be members of the council shall be notied in the Gazette.

Meetings and 5.

Subject to this Schedule, the Council shall regulate its own proceedings.

procedure.

6.

Meetings of the Council shall be called by the Chairman Meetings.

whenever the Board so requests.

Absence of chairman.

7.

If the chairman is absent from a meeting of the Council, the members present shall elect one of their number to preside at that meeting.

8.

The agenda at a meeting of the Council shall consist of such Agenda of meetings.

matters as the Board may from time to time refer to the Council for consideration and such other matters as the Council, with the agreement of the Board, may receive.

9.

A quorum at any meeting of the Council shall be one half of Quorum.

the members of the Council.

10.

A resolution at a meeting of the Council shall require the Resolutions.

afrmative votes of one half of the members present except the chairman, who shall have a casting vote only.

11.

The secretary and any other staff of the Council shall be Staff of the council.

members of the staff of the Commission appointed for the purpose by the Board.

FIFTH SCHEDULE (sec.

46R) 1 of 2009, s.

35.

TRANSITIONAL PROVISIONS 1.

In this Schedule, unless the context requires otherwise, Interpretation.

broadcasting permits means any authority given prior to the commencement of this Act by the Minister in charge of broadcasting authorizing any person to undertake broadcasting services.

106 CAP.

411A Kenya Information and Communications [Rev.

2011 Broadcasting permits 2.

The Commission shall respect and uphold the vested rights and granted by the interests of parties holding broadcasting permits issued by the Minister Minister.

prior to the commencement of this Act; Provided that (a) such parties shall be granted a period not exceeding one year during which they may continue to operate in accordance with their existing permits; and (b) before the expiry of the one year period, such parties shall apply to the Commission to be licensed under this Act.

Domain 3.

The Commission shall respect and uphold the vested rights administrators.

and interests of parties that were actively involved in the management and administration of the .ke domain name space at the date of commencement of this Act provided that (a) such parties shall be granted a period not exceeding six months during which they may continue to operate in respect of their existing delegated sub-domains; and (b) before the expiry of the six months period, such parties shall apply to the Commission to be licensed under this Act.

Rev.

2011] Kenya Information and Communications CAP.

411A 107 SUBSIDIARY LEGISLATION [Subsidiary] L.N.

2/2000, THE KENYA COMMUNICATIONS (APPEALS) RULES, 1999 L.N.

176/2003.

1.

These Rules may be cited as the Kenya Communications (Appeals) Citation.

Rules, 1999.

2.

In these Rules, unless the context otherwise requires Interpretation.

L.N.

176/2003.

appeal means an appeal to the Tribunal under any of the provisions of the Act; appellant means a person entering an appeal and the advocate or duly authorised agent of that person; Chairman means the Chairman of the Tribunal appointed under section 102 (1) of the Act; Executive Ofcer means the Executive Ofcer of the Tribunal appointed pursuant to rule 3; 4; memorandum means a memorandum of appeal presented under rule Permanent Secretary means the Permanent Secretary of the Ministry for the time being responsible for Communications; respondent (a) in relation to an appeal brought by a licencee who is a party to a dispute determined by the Commission under Regulation 8 of the Kenya Communications Regulations, 2001, means any licensee (other than the appellant) who was bound by the determination; or (b) in any other case, means the Commission.

3.

(1) The Permanent Secretary shall appoint a person to be the Executive Appointment of Executive Ofcer.

Ofcer of the Tribunal.

(2) The Executive Ofcer shall, in matters relating to appeals to the Tribunal and to the procedure therefore, comply with general or special directions lawfully given by the Chairman or the Tribunal.

(3) The appeals shall be led in the ofces of the Appeals Tribunal at Transcom House along Ngong Road, Nairobi.

4.

(1) An appeal shall be entered by presentation of memorandum of Form and time for appeal, together with ve copies thereof, to the Executive Ofcer within lodging an appeal.

the period specied in the Act, or, where not specied, within thirty days of L.N.

176/2003.

notication of the decision appealed against to the appellant in writing: 108 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] Provided that where the appellant has made an application under subrule (2) and the Tribunal is satised that, owing to absence from his normal place of residence, sickness or other reasonable cause, the appellant was prevented from presenting a memorandum within that period, and that there has been no unreasonable delay on his part, the Tribunal may extend that period notwithstanding that the period has already expired.

(2) An appellant may, by application in writing (a) signed by him; (b) supported by an afdavit setting out the reasons for delay; and (c) led, with ve copies, together with the memorandum of appeal apply for leave to le an appeal out of time or; (3) The Executive Ofcer shall give every appeal led pursuant to paragraph (1) an appeal number and every document led together with the memorandum or subsequently led in relation to the appeal shall bear the said number.

Memorandum of 5.

A memorandum shall be signed by the appellant and shall set out appeal.

concisely, under distinct heads, numbered consecutively, the grounds of appeal without argument or narrative.

Statement of facts of 6.

Each copy of a memorandum shall be accompanied by appeal.

(a) a copy of the decision appealed against; and (b) a statement, signed by the appellant, setting out precisely all the facts on which the appeal is based and referring specically to documentary or other evidence which it is proposed to adduce at the hearing of the appeal, and to which shall be annexed a copy of each document or extract from a document upon which the appellant proposes to rely as evidence at the hearing of the appeal.

Service of 7.

Within four (4) days after the presentation of a memorandum to the Memorandum of appeal.

Executive Ofcer a copy thereof and of the statement of facts of the appellant and L.N.

176/2003.

the documents, annexed thereto, together with any application for leave to le the appeal out of time shall, be served by the appellant upon the respondent.

Statement of facts of 8.

(1) The respondent shall, if he does not accept any of the facts of the the respondent.

appellant, within twenty-one (21) days after the service thereof upon him under L.N.

176/2003.

rule 7, le with the Executive Ofcer a statement of facts together with ve copies thereof and the provisions of rule 6 (b) shall mutatis mutandis apply to the statement of facts.

(2) At the time of ling a statement of facts pursuant to paragraph (1), the respondent shall serve a copy thereof, together with copies of the documents annexed thereto, upon the appellant.

Rev.

2011] Kenya Information and Communications CAP.

411A 109 [Subsidiary] (3) If the respondent does not desire to le a statement of facts under this rule, he shall forthwith give written notice to that effect to the Executive Ofcer and to the appellant, and in that case the respondent shall be deemed at the hearing of the appeal to have accepted the facts set out in the statement of facts of the appellant.

9.

(1) As soon as may be convenient after receipt by him of the Notice and place of memorandum, the Executive Ofcer shall notify the Chairman thereof.

hearing.

L.N.

176/2003.

(2) The Chairman shall, after the respondent has led a statement of facts or has notied the Executive Ofcer that he does not intend to do so, xa time, date and place for a meeting of the Tribunal for the purpose of hearing the appeal, and the Executive Ofcer shall cause notice thereof to be served on the appellant and the respondent.

(3) The Executive Ofcer shall cause to be supplied to each member of the Tribunal a copy of the notice of the hearing and of all documents received by him from the parties to the appeal.

(4) Unless the parties to the appeal otherwise agree, each party shall be entitled to not less than seven days notice of the time, date and place xed for the hearing of the appeal.

10.

At the hearing of an appeal, the following procedure shall be Procedure at hearing observed of appeal.

(a) the respondent shall be entitled to be present or be represented; L.N.

176/2003.

(b) the appellant shall state the grounds of his appeal and may support it by any relevant evidence, but, save with the consent of the Tribunal and upon such terms as it may determine, the appellant may not at the hearing rely on a ground of appeal other than a ground stated in the memorandum and may not adduce evidence of facts or documents unless those facts have been referred to in, and copies of those documents have been annexed to, the statement of facts of the appellant; (c) at the conclusion of the statement and evidence on behalf of the appellant, the respondent may make submissions supported by relevant evidence, and subparagraph (b) shall mutatis mutandis apply to evidence of facts and documents to be adduced by the respondent; (d) the appellant shall be entitled to reply but may not raise a new issue or argument; (e) the Chairman or a member of the Tribunal may at any stage of the hearing, ask any questions of the appellant or the respondent or a witness examined at the hearing, which he considers necessary to the determination of the appeal; (f) a witness called and examined by either party may be cross 110 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] examined by the other party to the appeal; (g) a witness called and examined by the Tribunal may be cross examined by either party to the appeal; (h) the Tribunal may adjourn the hearing of the appeal for the production of further evidence or for other good cause, as it considers necessary, on such terms as it may determine; (i) at the conclusion of the hearing of the appeal the Tribunal may, if necessary, adjourn the proceedings and reserve its decision to be delivered on a day to be notied; (j) notes of proceedings including submissions and evidence, if any, given by witnesses as far as they are relevant shall be recorded by the Chairman or, where possible, may also be recorded electronically.

Tribunal to determine 11.

In matters of procedure not governed by these Rules or the Act, the own procedure in Tribunal may determine its own procedure.

certain matters.

Copies of documents 12.

Save where the Tribunal in any particular case otherwise directs or admissible.

where a party to the appeal objects, copies of documents shall be admissible in evidence, but the Tribunal may at any time direct that the original shall be produced notwithstanding that a copy has already been admitted in evidence.

Costs.

13.

The Tribunal may make such order as to costs on an appeal as it may determine.

Rev.

2011] Kenya Information and Communications CAP.

411A 111 [Subsidiary] THE KENYA COMMUNICATIONS REGULATIONS, 2001 L.N.

68/2001, ARRANGEMENT OF REGULATIONS L.N.

28/2010, L.N.

29/2010, L.N.

30/2010.

REGULATIONS Part 1PrelImInary 1.

Citation.

2.

Interpretation.

Part IIoPeratIng ProCedures 3.

Protected Information.

Part IIIfInanCIal ProvIsIons 4.

Payments to the Commission.

Part Iv (Revoked by L.N.

29/2010) Part vteleCommunICatIons lICenCes 9.

Licences required.

10.

Licensing.

11.

International Conventions.

12.

Transfer of Licence.

13.

Lapse and renewal of licence.

Part vIradIo CommunICatIons 14.

Basis and purpose.

15.

Denition of terms.

16.

National spectrum management policy.

17.

Application criteria for approval.

18.

Assignment of frequencies.

19.

Obligations of the licensee.

20.

Ownership of frequencies.

21.

Transfer and assignment of station authorization.

22.

Temporary authorization.

23.

Change in equipment.

24.

Station identication.

25.

Type approval and inspection.

26.

Monitoring and inspection.

27.

Inspection and maintenance of towers and control equipment.

28.

Misuse of frequencies.

29.

Discontinuation of station operation.

30.

Measures against violations.

31.

Revocation of licences.

112 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] Part vII(Revoked by L.N.

30/2010) Part vIIItyPe-aPProval of termInal equIPment 50.

Purpose.

51.

Categories of network and terminal equipment requiring type approval.

52.

Type approval procedure.

53.

Applications for type approval.

54.

Language.

55.

Submission of samples of equipment for testing.

56.

Provisional type approval.

57.

Final type approval.

58.

Revocation of type approval.

59.

Complaint procedures.

60.

Import and sales restrictions.

61.

Exemptions from type approval.

Part IXnumBerIng 62.

Management and administration of national numbering plan.

63.

Considerations when assigning or publishing numbers.

Part XPostal and CourIer servICes 64.

Application.

65.

Interpretations.

66.

International and regional arrangements.

67.

Delivery of postal articles.

68.

Licensing of postal services operators.

69.

Applications for licence.

70.

Conditions of licence.

71.

Non-discrimination.

72.

Licence fees.

73.

Licence terms.

74.

Licence modication and renewal.

75.

Suspension and cancellation of licences.

76.

Transfer or lease of licence.

77.

Lapse and renewal of licence.

78.

Operation of reserved postal services.

79.

Tariffs for unreserved postal services.

80.

Tariffs for reserved postal services.

81.

Unreserved postal services fees and operations.

82.

Consumer complaint procedures.

83.

Universal service obligation.

84.

Issuance of postage stamps.

85.

Reporting requirements.

86.

Production of records and inspections.

87.

Suspension or cancellation of licences.

88.

Interconnection.

89.

Disposal of undeliverable postal articles.

Rev.

2011] Kenya Information and Communications CAP.

411A 113 [Subsidiary] Part XItarIff regulatIon 90.

Scope.

91.

Price Cap.

92.

Applications for approval of tariffs.

93.

Notice on tariffs.

94.

Decision on Tariffs.

95.

Investigation and suspension of tariffs.

96.

Tariffs (le and use).

Part XII(Revoked by L.N.

28/2010) Part XIIImIsCellaneous ProvIsIons 101.

Roaming agreements.

102.

Registration of telecommunications contractors and vendors.

103.

Fees.

114 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] L.N.

68/2001.

THE KENYA COMMUNICATIONS REGULATIONS, 2001 Part 1PrelImInary Citation.

1.

These Regulations may be cited as the Kenya Communications Regulations, 2001.

Interpretation.

2.

In these Regulations, unless the context otherwise requires 1 of 2009, s.3.

Cap.

411A.

Act means the Kenya Information and Communications Act; 2 of 1998.

basic telecommunications service means a service offered to subscribers which provides such subscribers with a telephone connection to, and a unique local telephone number address on a licensed local access provider and which enables such subscribers to place calls to, or receive calls from, other telecommunications stations on those systems and shall include residence and business line services; basic telephone service means a service provided to the public which allows end users to transmit and receive real time voice communications, including voice telephony service, public pay telephone service, operator assisted services, local, domestic and international long distance telephone services whether by wire or wireless means as well as basic, non-packet switched data communications, such as facsimile transmissions but does not include advanced or enhanced telephone services or dedicated data communications services such as paging services; basic telephony means xed or mobile communications service in which a two-way connections are established without any deliberate removal or addition to the information content transmitted over that connection or any additional service having been provided thereof; circuit means the physical connection or path of channels or conductors and equipment between two given points through which an electric current may be established; contract means any agreement, arrangement, bond, commitment, franchise, indemnity, indenture, instrument, lease, concession, licence or understanding, whether in writing or not in writing; communications shall, where used in these Regulations refer to telecommunication, postal and radio communications services; Commission means the Communications Commission of Kenya established under section 3 of the Act; condential business information means a proprietary information of a trade, commercial or nancial nature that is (a) of a kind that would customarily not be released to the public by Rev.

2011] Kenya Information and Communications CAP.

411A 115 the person from whom it is obtained; and [Subsidiary] (b) the disclosure of which is likely to impair the Commissions ability to obtain similar necessary information in the future or to cause substantial harm to the competitive position of the person from whom the information is obtained.

global navigation system means an arrangement of technical apparatus by means of which an end user can determine location parameters of latitude, longitude and altitude at any instant of time anywhere on the earth surface; international call completion rate means the minimum percentage of international telephone calls originating within a licensees network completed per total of international call attempts measured during the peak trafc hour; international telephone call means an effective or completed telephone call exchanged with a telecommunications station outside the country in which the calling telecommunications station is situated; ITU means the International Telecommunications Union; leased line means a telecommunications line that is made available to a subscriber for his exclusive use; licensee means the holder of a licence issued by the Commission under the Act or these Regulations; line means a transmission medium between terminal locations and includes associated repeaters; local service provider means a telecommunications licensee licensed to provide local basic telephone service excluding international and long distance services but include value added services in accordance with the relevant licence issued by the Commission; local call completion rate means the minimum percentage of local telephone calls completed per total of local call attempts measured during the peak trafc hour which originate and terminate from the licensees network; local telephone call means an effective or completed telephone call exchanged with a telecommunications station within the local charging area in which the calling telecommunications station is situated; mobile radio-communication system means a telecommunications system consisting of mobile service switching centers each of which typically serves a number of cells which establish calls to and from mobile subscribers in their respective call service areas, thereby allowing calls to be transferred from one cell to another cell without interruption and established or to be established by an operator under a licence to provide mobile radio communications Services; mobile radio-communication service means a telecommunications 116 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] service that operates through a mobile radio-communications system employing a network architecture in a cell conguration in which low-powered radio transmissions allow for the re-use of the same frequency simultaneously in multiple cells and shall include both voice telephony services and non-voice telephony services but shall unless otherwise expressly provided in a licence, exclude video, paging and high speed data services; national long distance telephone call means an effective or completed telephone call exchanged with a telecommunications station outside the local charging area in which the calling telecommunications station is situated; national long distance call completion rate means the percentage of national long distance telephone calls completed per total of national long distance call attempts measured during the peak trafc hour which originate and terminate within a licensees network (internal national long distance call completion rate), or which terminate outside the licensees network (external national long distance call completion rate); non-service specic interfaces means a shared boundary between two functional units that is not specic to any one telecommunications service; operational subscribers line means an operational subscribers line connecting a subscribers premises to the exchange; paging service means a telecommunications services that provide subscribers with radio messages, through portable radio equipment used in a given zone, which may be accompanied by a verbal or codied visual message; private telecommunications services means telecommunications services established by any person for the sole purpose of satisfying his own communications needs within Kenya and may include telephony service or value added services, radio communication and cable services; roaming services means a type of telecommunications or radio communications service that enables subscribers of one mobile cellular communications system to utilize the facilities of another mobile radio communications system with which the subscriber has no direct pre-existing service or contractual relationship to place an outgoing call, to receive an incoming call, or to continue an in-progress call; satellite mobile telecommunications service means a service which allows for voice or data communications through the use of mobile terminal equipment and capable of maintaining a direct uplink to or direct downlink from a satellitebased telecommunications network; satellite telecommunications service means a telecommunications service provided through connections from earth stations to authorised public or private satellite-based telecommunications system; service agreement means any agreement between an operator and a subscriber or subscribers relating to the provision and use of a Rev.

2011] Kenya Information and Communications CAP.

411A 117 telecommunications service; [Subsidiary] service quality requirements means conditions of licence established by the Commission pursuant to section 25 of the Act for the purpose of improving the quality and delivery of telecommunications services in Kenya; store and forward messaging service means a service whereby messages can be exchanged between subscribers using storage and retransmission devices; subscriber means any person provided with a telecommunications service by a licensee, and who is responsible for payment of all charges and rentals; subscriber line means a telecommunications link connecting the local telecommunications center to the subscribers premises or telephone instrument or system; tariffs means the charges by a telecommunications service operator or its subscribers; telex service means a telecommunications service that provides for the interactive telecommunication of texts between subscribers through teleprinting devices interconnected by a telex network via transmission of codied information; third party private network service means a service over a user- dedicated network supplied by a licensee providing such services, whether directly or indirectly, to the user of such services; Tribunal means the Appeals Tribunal established under section 102 of the Act; trunk capacity resale service means a type of telecommunications service which, using a trunk capacity resale system, provides the necessary capacity to carry and route telecommunications signals constituting the main interconnection between telecommunications systems and networks and which allows the provision of nal services, distribution services and value added services; value added services means such services as may be available over a telecommunications system in addition to voice telephony service, and specically those services listed as value added services in these Regulations, including the following (a) videotext means a service involving a two-way interactive computer-based information system in which a subscriber is linked to a database by telephone line or cable; (b) teletex means a service whereby a subscriber can exchange ofce correspondence in the form of documents containing teletex coded information on an automatic memory-to-memory basis; 118 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (c) teleaction means a service used to send short messages at very low transmission speeds between the subscriber and a communications network; (d) telecommand means a service whereby a supervised system is controlled from a remote control device; (e) telealarm means a service whereby an electric signal is sent to a remote control device each time there is a threshold change of conditions in the supervised system; (f) store and forward messaging service means a service whereby messages can be exchanged between subscribers using storage and retransmission devices; (g) teleprocessing and data processing means an interactive service used for the processing of data and exchange of messages between the terminals of georaphically distant subscribers; (h) electronic mail services means a service whereby subscribers may send messages to one or more addressees and receive messages using a combination of data storage and retransmission techniques so that the nal subscriber may recover the message.

This service may be used as follows (i) electronic mail (X.400): a service allowing a subscriber to send messages instantaneously to another subscribers directory or electronic mailbox (i.e., person-to-person messaging, accord- ing to the ITU X.400 international standards); (ii) electronic document interchange (EDI): person-to-person messaging, according to electronic data interchange fact (EDIFACT); (iii) electronic fund transfer; (iv) electronic voice mail: a storage and retrieval service whereby voice messages from one subscriber are digitally stored in order to be received by another subscriber; (i) voice messaging means a service whereby the subscriber transmits a brief message by calling one or more telephone numbers at a given time or by answering the call of another subscriber; (j) voice telephony service means a telecommunications service which provides subscribers with the ability to conduct real-time two-way speech conversation via a xed or mobile network; (k) information services means an interactive service that provides access to information stored in database centers and which may be sent to the world wide web subscriber only upon request; Rev.

2011] Kenya Information and Communications CAP.

411A 119 [Subsidiary] (l) packet switching service means without using the systems network, data signals called packages are split up according to a sequence of signals arranged in a specic format, in accordance with the ITU X.25 and X.75 standards and such other generally recognised standards as may be approved for use over the public communications network by the Commission; (m) any other service as may be classied as such in the Gazette by the Commission.

Part IIoPeratIng ProCedures 3.

(1) Any person who communicates with the Commission, and whose Protected communication includes condential business information, may submit a written information.

request to the Commission that the specic portion of that communication consisting of such condential information be protected from disclosure.

(2) Any request made under paragraph (1) of this regulation that is deemed by the Commission to be valid shall entitle the person who has made such a request to (a) protection of condential business information from being referred to in any writing or communication issued by the Commission; (b) non-publication of the condential information in its entirety in any writing or communication issued by the Commission and, to the extent that the condential information quoted or referred to by the Commission in any writing or communication, it shall be identied as such, together with directions on how the full text of the information may be obtained by the public.

(3) Trade secrets and other condential or proprietary information pertaining to the commercial interests of any person, which are submitted in connection with a communication by any person to the Commission, may be entitled to treatment as condential business information.

(4) A person seeking to have information or materials treated as condential business information may submit the information or materials to be considered separately from the other communications to the Commission, together with a written request that the Commission treat such information as condential business information.

(5) The Commission may on its own motion determine that the information or materials should not be routinely available for public inspection.

(6) In the absence of a request referred to in paragraph (4), materials or information that are submitted may be made available for inspection upon request, even though such information or materials may contain trade secrets or condential information.

(7) The presence of condential business information within the body 120 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] of a communication to the Commission shall not entitle the entirety of those communications to condential treatment, but that portion of the communications which is entitled to condential treatment as condential business information may be extracted from the main body of the communication made available for public inspection.

(8) The disclosure of condential business information may be compelled pursuant to a parliamentary, judicial or other lawful process.

Part IIIfInanCIal ProvIsIons Payment to the 4.

(1) The Commission may from time to time prescribe fees payable Commission.

in respect of any licence issued or service performed under the Act or these Regulations.

(2) Every fee payable to the Commission in connection with applications for licences, frequency spectrum assignments, or any other matter shall be paid in full before the licence is granted or the frequency is assigned by the Commission.

(3) Unless otherwise prescribed by the Commission, all licensees shall make yearly payment of the annual operating fees due for the current year by the 1st day of July of each calendar year, but not later than three months after the end of the licensees nancial year.

(4) Where any licensee is required to pay fees to the Commission on the basis of information or records in the custody of such licensee, the licensee shall submit a declaration to the Commission in the manner prescribed by the Commission, attesting to the completeness and accuracy of the information upon which such computation of fees is based.

(5) Where a licence requires that payment of a licence or an annual operating fee be based on a percentage of a licensees gross annual revenues, the base for calculating a licensees gross annual revenues shall include (a) payments from subscribers and other users; and (b) the amount billed including uncollected payments from subscribers and other customer accounts.

Part Iv(Revoked by L.N.

29/2010) Part vteleCommunICatIons lICenCes Licences required.

9.

The Commission shall issue telecommunications licences in accordance with the provisions of the Act.

Licensing.

10.

(1) The Commission shall prescribe the terms and conditions of all licences, as it considers consistent with the objectives of the Act, these Regulations and such other circumstances as the Commission may consider appropriate, including the terms and conditions upon which the licence is granted, the services to be provided by the licensee and the network to be Rev.

2011] Kenya Information and Communications CAP.

411A 121 operated by the licensee.

[Subsidiary] (2) The Commission may issue licences for the provision of local access services, national long distance services, international services, very small aperture terminal services, internet backbone, global mobile personal communications services (GMPCS) and customer premises wiring, terminal equipment and maintenance, repair workshop services and radio station licence.

(3) Local access services shall be provided by a licensed local access provider or a regional telecommunications operator.

(4) Licences granted shall contain an obligation to provide services efciently and at reasonable costs.

(5) Licences may include the provision of services to rural or sparsely populated areas or other specied areas and other conditions as the Commission may deem necessary.

11.

The Commission may require licensees to comply with international International conventions or agreements relating to communications services to which Kenya Conventions.

is a signatory.

12.

(1) A licence granted under the Act may not be transferred without Transfer of Licence.

the written consent of the Commission.

(2) An application for the transfer of a licence shall be accompanied by an application in the prescribed Form 1 set out in the First Schedule, completed by the person to whom the licensee intends to transfer the licence.

(3) The Commission shall in considering an application for transfer have regard to the same terms and conditions as in considering a grant of a new licence, provided that the Commission may in its discretion refuse to approve such an application for transfer under this regulation.

13.

(1) An application for renewal of a licence shall be made in accordance Lapse and renewal of with the conditions of each licence.

licence.

(2) In considering an application for renewal of a licence, the Commission shall have regard to the fullment by the licensee of the obligations contained in the licence in the previous licence period.

(3) The process for renewal of a licence for telecommunications services shall be contained in each licence and each application process shall be considered as part of these Regulations.

Part vIradIo CommunICatIons 14.

The regulations in this part are meant to regulate radio transmissions Basis and purpose.

and issuance of licences for radio stations.

Denition of terms.

15.

In this Part, unless the context otherwise requires 122 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] authorised frequency means the frequency assigned to a radio station by the commission; authorised power means power assigned to a radio station by the commission; xed service means a service of radio-communication between specied xed points; xed station means a station in the xed service; harmful interference means any radiation or induction which endangers the functioning of a radio-navigation service or of a safety service or obstructs or repeatedly interrupts an authorised radio or telecommunication service; radio communication service means service involving transmission, emission or reception of signs, images, signals, writings, and sounds or intelligence of any nature by radio waves; station authorisation means any construction permit, licence, or special temporary authorisation issued by the Commission; National Spectrum 16.

(1) The Commission shall manage and control the use of or emissions management policy.

from the radio electromagnetic spectrum and use of geostationary orbital slots within the territory of Kenya and shall have the power to withdraw, suspend, or prohibit any such use or emissions.

(2) The Commission shall, in accordance with the Act, have the power to negotiate with the International Telecommunication Union, its afliated bodies and other countries regulatory bodies or entities performing such functions.

(3) The Commission shall be responsible for, frequency planning and engineering, frequency assignment and licensing, frequency monitoring and inspection of radio stations, and the implementation of the Kenya government policies on radio communications.

Application criteria 17.

(1) The Commission, in considering applications for frequency for approval.

assignment shall take into consideration (a) spectrum availability for the type of service and proposed location; (b) whether the proposed service can be satised by any other means of communications; and (c) the distress and safety radio communication services which require special protection from harmful interference.

(2) The Commission may assign the use of a frequency or frequencies to the applicant, and shall for that purpose take into account all technical data of the Rev.

2011] Kenya Information and Communications CAP.

411A 123 equipment and associated accessories proposed to be used by the applicant.

[Subsidiary] 18.

(1) The Commission may, upon application in a prescribed Form Assignment of No.

5 set out in the First Schedule, assign frequencies when it is satised that frequencies.

such assignment will not cause harmful interference to any station or licensee operating in accordance with the Kenya table of frequency allocations: Provided that in the event of non-availability of the frequencies applied for, the Commission may consider assigning frequencies in alternative frequency bands.

(2) A person licensed to operate and provide mobile radio communication systems and services shall apply to the Commission in the prescribed form No.

6 set out in the First Schedule for assignment of the necessary frequencies.

Provided that in the event of non availability of the frequencies applied for, the Commission may consider assigning frequencies in alternative frequency band.

(3) When the Commission is satised with an application, the applicant may be assigned a frequency or frequencies, which shall be used in accordance with the prescribed technical and operating parameters.

(4) The Commission may impose any conditions on the use of the assigned frequencies.

19.

(1) All licensees assigned the use of frequencies or frequency bands Obligations of the shall licensee.

(a) maintain and provide, at the Commissions request, an inventory of frequencies assigned; (b) keep the licence in force by regular payment of annual fees as may be prescribed from time to time by the Commission; and, (c) guard against unauthorized emission, harmful interference or illegal use of the spectrum.

(2) The Commission may where it considers expedient so to do require a licensee to migrate to a new frequency band.

20.

(1) A frequency licence shall not confer any ownership rights of the Ownership of frequency to the licensee.

frequencies.

(2) The commission may require licensees to share a frequency band.

21.

Frequencies assigned to be used by a licensee and the rights therein Transfer and granted by such authorisation shall not be transferred, without the written assignment of station consent of the Commission.

authorization.

22.

The Commission may at its discretion grant a temporary frequency Temporary assignment.

authorization.

124 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] Change in 23.

(1) No material change may be made in a licensed station, including equipment.

change of station parameters as specied in the licence without written authorisation from the Commission.

(2) Without prejudice to the generality of this regulation, a licensee shall seek the approval of the Commission where such licensee proposes a change which is likely to increase the height of a structure supporting the radiating portion of the antenna or decrease the height of a lighted antenna structure or in the location of an antenna when such relocation involves a change in the geographic co-ordinates of latitude or longitude by as much as one second, or when such relocation involves a change in street address.

Station identication.

24.

All licensees shall ensure that each class of station, unless exempted by the terms of a stations authorisation, transmits assigned call sign at the end of each complete transmission: Provided, that the transmission of the call sign at the end of each transmission shall not be required in cases of projects requiring continuous, frequent or extended use of the transmitting apparatus, if, during such periods and in connection with such use, the call sign is transmitted at least once every thirty minutes.

Type approval and 25.

(1) No frequency spectrum shall be assigned unless a radio equipment inspection.

in respect of which an assignment is sought has been duly type approved by the Commission.

(2) Upon installation of the radio communication system, the licensee shall ensure that the system is inspected and certied by the Commission to be operating in accordance with conditions of assignment.

Monitoring and 26.

(1) The Commission shall monitor all emissions from licensed Inspection.

stations for the purpose of ensuring efcient utilisation and compliance with licensed parameters.

(2) The licensee shall provide unlimited access to the Commissions authorised ofcers to the licensees installations for purposes of inspection and verication of operational parameters.

(3) All records of stations shall be made available for inspection by the Commissions authorised ofcers at any time while the station is in operation.

(4) Any interference experienced by the licensee shall be reported to the Commission in writing.

(5) All frequency licensees shall comply with directions from the Commission that will assist in the resolution of frequency interferences.

Inspection and 27.

(1) A licensee of any radio station which has an antenna structure maintenance of required to be painted and illuminated pursuant to the provisions of any written towers and control law shall perform all inspections and maintenance of the tower marking and equipment.

lighting, and associated control equipment, required thereto.

Rev.

2011] Kenya Information and Communications CAP.

411A 125 [Subsidiary] (2) All licensees shall ensure full compliance with directions given by the Commission in consultation with the government agency responsible for civil aviation, in regard to antenna towers.

28.

(1) Any licensee who uses a frequency or frequencies assigned, or Misuse of provides a radio communications service other than the service or services for frequencies.

which he holds a licence shall be guilty of an offence.

(2) Any licensee who uses an unauthorized frequency or equipment to offer radio communication service shall be guilty of an offence.

29.

Where a licensee intends to permanently discontinue operating a radio Discontinuation of communication station, the licensee shall forward the station licence, together station operation.

with a request for cancellation of the licence, to the Commission.

30.

(1) The Commission may disable or conscate any radio Measures against communication apparatus or stations operated in contravention of the condition violations.

of license or in contravention of the Act and these Regulations.

(2) The conscated equipment or apparatus shall be disposed of according to the applicable procedures.

31.

(1) The Commission may revoke a license if Revocation of (a) the licensee contravenes any part or parts of the license licenses.

conditions; (b) the service provision license or permit is not in force; (c) the licensee fails to renew the license within the specied period; Provided the Commission may revoke a licence in accordance with the circumstances that are detailed in each licence.

(2) An order revoking a frequency licence shall be in writing and shall be availed to the licensee.

(3) Any person aggrieved by the decision of the Commission made under this regulation may appeal to the Tribunal within fteen (15) days of the date of making such a decision.

Part vIIItyPe aPProval of termInal equIPment 50.

Regulations in this Part shall ensure that the connection of apparatus to the telecommunications networks does not damage or jeopardise the integrity Purpose.

of the telecommunications network.

126 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] 51.

(1) All telecommunications and radio communication equipment shall Categories of prior to their installation or connection to any public switched telecommunication network and terminal network in Kenya be submitted to the Commission for type-approval.

equipment requiring type approval.

(2) The Commission shall grant type-approval for each type of equipment once and subsequent users of the same model of equipment shall not apply to the Commission for type approval: Provided that any changes in models, design or specication of any equipment which has been type approved by the Commission shall be resubmitted for type approval.

(3) The categories of network and terminal equipment that require type approval shall include (a) telephone equipment; (b) fax machines; (c) private automatic branch exchange (PABXs) (including small business systems and key systems); (d) telex equipment; (e) modems; (f) cordless telephones; (g) cellular telephones; (h) radio communication equipment; and (i) any other customer premises equipment to be attached to any part of licensed telecommunications or radio communication network.

Type approval 52.

(1) All applications for type approval of any equipment shall be Procedure.

submitted in the prescribed Form No.

2 set out in the First Schedule and shall be accompanied by (a) the prescribed fee; (b) technical specications and manuals of the equipment; and (c) where required, a sample of the equipment in quantities as may be determined by the Commission.

(2) The Commission shall not be obliged to return to the applicant any samples of equipment and associated literature submitted for the purposes of type approval.

(3) Where the equipment submitted for type approval is a single channel low capacity radio equipment, the Commission shall evaluate the application Rev.

2011] Kenya Information and Communications CAP.

411A 127 and convey its decision to the applicant within thirty (30) working days of [Subsidiary] receipt of the application: Provided however that where the equipment submitted for type approval is a switch or switches of over one thousand (1000) ports, the Commission shall convey its decision to the applicant within sixty (60) days of receipt of the application for type approval.

53.

An application for type approval shall provide for Applications for type (a) the name of the equipment; approval.

(b) the name of the manufacturer; (c) the intended use within Kenya; (d) the name, address, and authorized representative of the individual or organization that will hold the type approval certicate; and (e) any other information that the Commission may require.

54.

All applications for any licence and all other documentation submitted Language.

therewith shall be in english language.

55.

(1) The Commission may type accept any equipment that has received Submission of type approval from another country or jurisdiction that is recognized by the samples of equipment Commission: for testing.

Provided however that the applicant for type acceptance shall submit a sample or samples of the equipment and copies of test results and type approval certicate from that country or jurisdiction at the time of the submission of the application for provisional acceptance.

(2) The Commission may, on its own motion or upon an application, institute proceedings to determine whether technical standards from other countries or jurisdictions should be recognized in Kenya for purposes of exempting any equipment from type approval or testing requirements.

56.

(1) Any person may submit to the Commission an equipment for Provisional type provisional type approval.

approval.

(2) Where the Commission has determined that an equipment which is the subject of an application for provisional type approval complies with the requirements for type approval, it may grant provisional type approval for a period of six (6) months on terms and conditions as it may determine.

(3) The Commission may, where it deems necessary, when granting provisional type approval to any equipment limit the number of units of such equipment that an applicant can hold until nal type approval is given.

(4) The Commission may extend the grant of the provisional type approval for one further period of six (6) months when it is of the view that 128 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] the performance of such equipment within the provisional type approval period is satisfactory.

Final type approval.

57.

(1) All applications for nal type approval shall be submitted in the prescribed Form No.

3 set out in the First Schedule ve months after the grant of provisional type approval and shall indicate the date of grant of provisional approval: Provided that no provisional type approval shall lapse or expire while an application for nal type approval is pending with the Commission.

(2) Final type approval shall be granted where the Commission is of the view that the grant of such nal type approval (a) is in the public interest; and (b) will not lead to harmful interference to any telecommunications and radio communication network or be a risk to human health or the environment.

(3) The Commission shall inform the applicant in writing of the nal type approval of an equipment or apparatus and shall issue the applicant with a registration number to display on the equipment or apparatus when the equipment or apparatus is being sold and used.

(4) Where the Commission is of the view that an equipment or apparatus should not be type approved, it shall notify the applicant in writing of its decision not to type approve the equipment or apparatus and shall provide reasons for such refusal.

Revocation of type 58.

(1) The Commission may, on its own motion or upon a complaint approval.

by any person, conduct investigations regarding the working or use of any equipment or apparatus which has been given provisional or nal type approval and may cancel such type approval where it is of the view that (a) a licensee has violated provisional type approval conditions; (b) the equipment or apparatus is causing or is likely to cause harmful interference to telecommunications network or is a risk to human health or the environment.

(2) Any person who is aggrieved by the decision of the Commission made under this Part may appeal to the Tribunal.

Complaint 59.

(1) Any person may make a representation in respect of the working procedures.

of any equipment that has been type approved or may object to the type approval of any equipment and may submit such representation or objection to the Commission in writing stating (a) the name and address of the complainant; (b) the name (and address if known) of the person against whom the Rev.

2011] Kenya Information and Communications CAP.

411A 129 complaint is made; and [Subsidiary] (c) facts, including supporting data, where available, showing that the apparatus does not conform to the requirements of this Part and that the apparatus may cause harmful interference to telecommunications and radio communications network or is a risk to human health or the environment.

(2) The Commission shall forward a copy of the representation or objection to the applicant or holder of a type approval certicate and give the applicant or holder an opportunity to give evidence to rebut the representation or objection.

(3) The Commission shall consider such representations or objections when considering the grant of type approval or in evaluating the working of any equipment or apparatus for which has been type approved.

60.

The Commission may, in consultation with the Kenya Revenue Import and sale Authority, restrict the importation into or sale within Kenya of any restrictions.

telecommunications or radio communication equipment or any other apparatus if it is of the opinion that such equipment or apparatus can cause damage or harmful interference to telecommunications or radio communication networks or is a risk to human health or the environment.

61.

The Commission may, where it deems expedient, exempt any Exemptions from telecommunications or radio communication equipment that is temporarily type approval.

imported into Kenya from type approval requirements.

Part IXnumBerIng 62.

The Commission shall be for responsible managing and administering Management and the national numbering plan.

administration of national numbering plan.

63.

Prior to the assignment and publication of any numbering plan, the Considerations Commission shall ensure that such numbering when assigning or (a) allows sufcient numbers to be made available to a licensee; publishing numbers.

(b) are allocated without undue delay; (c) allows for the inclusion of as few digits as practicable; (d) does not confer an undue advantage on any operator; (e) keeps the cost of changing any of the telecommunications systems in order to accommodate the number plan within reasonable limits; and (f) minimize any inconvenience that may be caused by implementation 130 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] of the numbering plan to a licensee and to persons using the telecommunications systems.

(2) The numbering scheme of each licensee shall comply with the Commissions guidelines concerning the implementation of the national numbering plan.

(3) The Commission may in assigning or allocating numbers to licensees charge fees for such allocation or assignment.

(4) For purposes of this Part numbering plan means the method of assigning NNX codes to provide a unique telephone addresses or identities to a user-network interface.

Part XPostal and CourIer servICes Application.

64.

The Regulations in this Part shall apply to all postal service licensees.

Interpretations.

65.

In this Part, unless the context otherwise requires basic postal services means reserved postal services such as postal stamps, private letterboxes and acceptance, conveyance and delivery of letters weighing up to 350 grams; commemorative stamps issue means the issuance of postage stamps as a mark of honour to events or matters of national or international importance and mainly used for philatelic purposes with a validity period of ve years from the date of issue; course of transmission means in case of, for a postal article, the time from the delivery of the postal article to the licensed postal service operator until the time of its delivery to the addressee, its return to the sender, or its disposal under the applicable provisions of these Regulations; denitive stamp issue means stamps depicting nature or natural heritage and which are valid for a maximum of ten years from the date of issue; postal services licensee means the Postal Corporation of Kenya and all organizations licenced to provide unreserved postal services, including courier companies, transporters, freight, forwarders, delivery companies and direct marketing companies which handle postal articles; reserved postal services means (a) the collection, transport, sorting, and delivery, for hire or reward of letters and postcards weighing up to 350 grams, but not including exempted letters sent by licensed courier, letters accompanying goods at the time of delivery, newspapers, magazines, books, non-addressed leaets, catalogues, and trade announcements letters delivered otherwise than for reward letters delivered by an Rev.

2011] Kenya Information and Communications CAP.

411A 131 employee of the sender letters containing any writ or proceeding [Subsidiary] out of court or any legal instrument of any kind and, letters carried to the premises of a provider of electronic mail service for the purpose of transmission by electronic mail; (b) the production and issuance of postage stamps, pre-stamped envelopes, aerograms, and international reply coupons bearing the ofcial national coat of arms or the words Republic of Kenya, Kenya, or Kenya Post; and (c) the rental or lease of private letter boxes or bags; universal postal services means consistent supply of basic postal services at affordable prices at all points within the country; universal service obligations means obligations assumed by the public postal licensee by virtue of a licence granted by the Commission under the Act to provide, as far as possible, basic postal services to all persons within Kenya at affordable prices that are not necessarily cost-based; unreserved postal services means courier services, counter services, money orders, electronic bill paying, parcel collection transport and delivery, expedited mail service, overnight mail services, and other handling of postal articles.

66.

(1) The provisions in this Part shall be carried out in accordance with International the terms of any international or regional convention or agreement to which and regional Kenya is a party.

arrangements.

(2) Where a postal licensee conduct international postal services, the Commission shall ensure that such a licensee conduct their operations in accordance with the rules, regulations and procedures of the conventions and agreements to which Kenya is a party, except to the extent that Kenyas adherence thereto is limited by a reservation.

67.

(1) A postal article shall be deemed to have been delivered Delivery of Postal (a) to the addressee, if it is delivered into a private letter box or bag articles.

of the addressee, leaving it at the house, or ofce of the addressee as set out thereon, or with the employee or agent or other persons authorised to receive it and, where the addressee is a guest or is a resident at a hotel, hostel or lodgings, if it is left with the proprietor or manager thereof or with his agent; or (b) to a postal service licensee if it is deposited into a posting box or handed over to an employee or agent of a postal service operator authorised to receive it.

68.

(1) No person shall operate a reserved or unreserved postal service Licensing of postal except in accordance with a licence issued under the Act.

services operators.

132 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (2) The Commission shall prescribe the terms and conditions of all licences, as it considers consistent with the provisions of the Act, these Regulations and such other circumstances as it may deem necessary.

Applications for 69.

(1) Any person may, subject to the provisions of the Act and these licence.

Regulations, apply for a licence from the Commission to operate postal services.

(2) Applications for postal service licences shall be made in writing in the prescribed form No.

1 set out in the First Schedule.

(3) In considering any application for a postal licence, the Commission may require the applicant to produce such evidence or information to show his or her capacity to operate postal services as the Commission may deem necessary.

(4) The Commission may require applicants for postal licences to provide evidence of ownership of the rm or company applying for the licences in support of the application and any person who knowingly gives false information shall be guilty of an offence.

(5) Applicants for a postal licence shall submit to the Commission (a) particulars as to the services to be operated; and (b) the geographical area for which postal services are proposed to be carried out.

(6) All applications for a postal license shall be accompanied by the prescribed fees.

(7) All licences issued under this regulation shall be in writing and unless previously revoked in accordance with any terms contained in the licence or as a result of a contravention of the Act or these Regulations or the terms of the licence, shall continue in force for such period as may be specied therein.

Conditions of 70.

(1) A postal service licence shall set out the terms and conditions Licence.

upon which it is granted and shall require the provision by the licensee of such postal services as are specied in the licence and may include the provision of services to rural or sparsely populated areas or other specied areas.

(2) Postal licences shall not be used for purposes other than for which it is issued and any other use of the licence, or contravention of the conditions stated therein, shall constitute an offence.

Non-discrimination.

71.

(1) Postal licensees shall not take any action in the provision of postal services that has or is likely to have the effect of giving an undue preference to, or causing undue discrimination against, any person or category of persons.

(2) If it appears to the Commission that a licensee is taking or intends to take any action which has or is likely have the effect of giving undue preference to, or causing undue discrimination against any person or category of persons, Rev.

2011] Kenya Information and Communications CAP.

411A 133 [Subsidiary] the Commission may, after having given such licensee an opportunity to be heard, direct the licensee through a written notice to cease or refrain from taking such action, as the case may be.

(3) Failure to comply with a order of the Commission issued under this regulation shall constitute an offence.

72.

(1) If the Commission is satised that an applicant has fullled all the Licence fees.

conditions for granting a licence and upon payment to the Commission of the prescribed fees, the Commission shall issue such an applicant with a licence.

(2) Every postal licensee shall, within the prescribed time, pay the Commission the fees specied in the licence and any licensee who fails to pay such fees shall be liable to pay such penalties as the Commission may prescribe.

73.

All postal licences issued under the Act shall be valid for the Licence terms.

period stated in the licence or for such period as may be determined by the Commission.

74.

(1) Pursuant to section 82 of the Act, the Commission may, modify Licence modication the conditions of any licence if it considers such modication necessary and renewal.

(a) to achieve the objectives of the Act; (b) in the public interest; (c) in the best and justied interests of the licensees; and (d) in order to ensure fair competition and equal treatment.

(2) Where the Commission intends to modify all or any condition of a postal licence, the Commission shall publish a notice in the Gazette stating the reasons for the intended modication and giving not less than sixty days period for the licensee or other interested parties to make any written representation regarding the intended modication.

(3) The Commission shall give due consideration to any representations made by the licensee.

(4) Where the modication of a licence condition is at the instance of the Commission and such modication is likely to cause undue harm to the licensee, the Commission may grant such licensee a reasonable period to comply with the modication terms of the licence.

(5) The Commission may, if it considers appropriate to do so in furtherance of the objectives of the Act, modify the terms of a postal licence on application of a postal licensee: Provided that where such modication is at the request of a postal licensee, such licensee shall meet the costs of the modication.

134 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (6) Any person who is aggrieved by the decision of the Commission made under this regulation may appeal to the Tribunal within fteen (15) days from the date on which the decision is made.

Suspension and 75.

(1) Every postal licence shall contain provisions for the suspension cancellation of or revocation of the licence.

licences.

(2) Notwithstanding the provisions of paragraph (1), the Commission may suspend or revoke a licence on grounds of (a) serious and repeated breach of the licence conditions; (b) discovery of any fraud or intentional misrepresentation by a licensee at the time of applying for the licence; (c) engagement in or support of unlawful activities by the licensee; or (d) cessation of the licensee to be a person who is eligible to hold such licence; or (e) failure to pay the prescribed fees.

(3) Unless provided otherwise in the licence, the Commission shall give a licensee sixty (60) days written notice of its intention to suspend or cancel a licence and shall specify in such notice the reasons for the intended suspension or cancellation of the licence.

(4) The licensee or any interested party may make representations against such suspension or cancellation to the Commission.

(5) After due consideration of such representations, the Commission may (a) prescribe the time during which the licensee may remedy the offending act or conduct; or (b) require the payment of a penalty or fee as specied in the Act or these Regulations.

(6) Where a licensee has not complied with the conditions set by the Commission in paragraph (5) of this regulation, it may (a) suspend the licence for a specied period of time; or (b) revoke the licence.

(7) Any person aggrieved by the decision of the Commission, under this regulation may within fteen (15) days from the date on which the decision is made appeal to the Tribunal.

Rev.

2011] Kenya Information and Communications CAP.

411A 135 76.

(1) No postal licence shall be transferred or leased without the written [Subsidiary] consent of the Commission.

Transfer or lease of licence.

(2) Where a licensee intends to transfer or lease a postal licence, he shall make an application to the Commission.

(3) An application for the transfer or lease of a license shall be in the prescribed form completed by the person to whom the licensee intends to transfer or lease the licence.

(4) The Commission shall in considering an application for transfer or lease of a licence have regard to the same terms and conditions as when considering the grant of a new licence: Provided that the Commission may at its discretion reject an application made under this regulation.

77.

(1) An application for renewal of a licence shall be made in accordance Lapse and renewal of with the provisions of each licence.

Licence.

(2) In considering an application for renewal of a licence, the Commission shall have regard to the fulllment by the licensee of the licence terms and conditions in the previous licence period.

(3) An application for renewal of a public postal licence shall be made at least six months before the expiry of the licence.

(4) A licensee may, during the prescribed period, apply for the renewal of his or her licence.

(5) Where a licensee has complied with the Act, these Regulations and the licence, a licence shall continue to be valid until such time as a decision has been made regarding the application for the renewal.

78.

(1) The Commission may from time to time require a person licensed Operation of reserved to provide reserved postal services to provide such services to areas which are postal services.

not adequately served.

(2) A licensee for the provision of reserved postal services may provide such services through a contract, agency or franchise without such agent or franchisee being required to hold a licence under the Act.

(3) A licensee designated as a public postal licensee shall maintain separate books of account for reserved postal services and unreserved postal services and shall not cross-subsidise the prices for any service it offers in the market for unreserved postal services with revenue from the sale of reserved postal services.

79.

(1) All postal licensees shall have the power to set tariffs for postal Tariffs for unreserved services which are open to competition.

postal services.

(2) All tariffs for unreserved postal services shall be made available to 136 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] the public by displaying them in conspicuous places in post ofces or in the ofces of licensees.

(3) It shall be an offence under this regulation not to display tariffs for postal services at all or in a conspicuous place.

Tariffs for reserved 80.

(1) Tariffs applicable to reserved postal services and the standard of postal services.

delivery of such services shall be determined by the Commission from time to time.

(2) Any review of tariffs relating to reserved postal services shall be implemented upon approval by the Commission.

(3) In considering review of tariffs for reserved postal services, the Commission shall ensure that the tariffs are based on the cost of providing efcient service in accordance with the licence and shall further ensure that such tariffs do not include (a) surcharges prevailing solely as a result of the public postal licensees exclusive right to provide reserved postal services; (b) anti-competition discounts likely to be prejudicial to licensees for unreserved postal services; (c) variation in rates that create any advantage for individual users within the same class of service in relation to users of postal services of the same type; and (d) any other consideration as the Commission may deem necessary: Provided that the Commission may authorise the levying of tariffs that are not based on costs of providing such service where the public postal licensee presents a case to the Commission that such charges are justiable due to any statutory obligation or other objectively veriable criteria.

(4) The Commission shall, at least thirty (30) days before approving any tariffs, give notice to customers in the Gazette and in such manner as the Commission may consider necessary (a) specifying the name and particulars of the licensee or class of licensees providing the postal service to which the tariffs relate; (b) stating the reasons for the proposed review of the tariffs and setting out the proposed tariffs; (c) specifying the time within which representations or objections may be made to the Commission on the proposed reviews; (d) informing the customers of the new tariffs at least fourteen (14) days before implementation.

Rev.

2011] Kenya Information and Communications CAP.

411A 137 81.

(1) All licensees of unreserved postal services shall operate at least [Subsidiary] one physical address which shall be registered with the Commission and any Unreserved postal services fees and change of such registered ofce shall be notied to the Commission within a operations.

period of fourteen (14) days of such change.

(2) Subject to the Act, these Regulations and licences, the Commission shall have the power to categorise postal licensees and to prescribe fees payable to the Commission by such licensees.

82.

(1) All licensees shall provide a mechanism through which consumers Consumer complaint may lodge complaints concerning the services given by such licensee.

procedures.

(2) Notwithstanding the generality of paragraph (1), the procedures for lodging complaints shall provide for (a) notication to customers of the right to complain; (b) availability of complaint form or any other written method for raising complaints; (c) maintenance of a log of consumer complaints.

(3) All licensees shall le with the Commission within sixty days after the grant of licence their complaint handling procedures.

83.

(1) The Commission shall from time to time provide targets to Universal service facilitate the achievement of universal service obligation.

obligation.

(2) In providing targets for the fulllment of universal service obligations by postal licensees, the Commission shall have regard to (a) measurable quantity and quality of service standards for postal services in relation to customer satisfaction; (b) speed, reliability and security of the service; and (c) accessibility to and affordability of universal postal services.

(3) The provision of universal postal services shall be the responsibility of the public postal licensee: Provided that the Commission may require any licensee for unreserved postal services to provide any or all universal postal services.

(4) In providing universal postal service obligations, the Commission may require the public postal picensee to provide such services in accordance with standards as may be prescribed by the Commission from time to time.

(5) The public postal licensee shall produce at least bi-annually directories of private letter boxes and bags and failure to produce such directories shall constitute a violation of a licence condition for which the Commission may levy a penalty.

138 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (6) Any postal licensee who fails to provide universal postal services as stated in the licence or as required by the Commission shall be liable to a penalty of six thousand shillings for every month or part thereof during which such failure continues.

Issuance of postage 84.

(1) The public postal licensee shall ensure that all postage stamps are stamps.

engraved with subjects that are consistent with the broad philatelic objectives of Kenya.

(2) No reproduction of stamps shall be undertaken without the approval of the Commission.

(3) In considering any expedient issuance of denitive, commemorative and special stamp issues and related activities such as exhibitions, the public postal licensee shall foster fairness amongst all interested parties such as stamp collectors.

(4) All denitive stamp issued shall (a) run for between ve and ten years; (b) concern subject matters approved by the Commission; (c) bear face values to be chosen by the public postal licensee; and (d) be issued once every ve years.

(5) All commemorative stamps shall be issued not less than six times but not more than six times annually and shall (a) concern a subject matter approved by the Commission; and, (b) bear face values to be chosen by the public postal licensee.

(4) Failure to comply with this regulation shall constitute an offence punishable by a ne of not less than six thousand shillings.

Reporting 85.

(1) At the times stated in the licence or as may be prescribed by requirements.

the Commission, postal licensees shall annually submit to the Commission a report containing (a) an annual report of accounts; (b) pricing and tariff implementation fourteen (14) days before the prices or tariffs are implemented; (c) quality of service performance; (d) business plans; (e) the new services introduced; Rev.

2011] Kenya Information and Communications CAP.

411A 139 [Subsidiary] (f) any other information that the Commission may require.

(2) Save as may be agreed between the Commission and any licensee, all information provided pursuant to this regulation shall be treated as condential business information and shall be dealt with in accordance with Part II of these Regulations.

86.

(1) The Commission may require a postal licensee to produce or Production of records furnish the Commission at the time and place specied accounts, records and and inspections.

other documents or information as the Commission may require.

(2) Upon identication and production of a written authority from the Commission, any ofcer from the Commission, may in order to determine whether the provisions of the Act or these Regulations are being complied with, at any reasonable time and without prior notice enter the premises of a postal licensee and (a) inspect and make copies of or extracts from books, records or other documents; (b) demand the production of and inspect the relevant licence; and (c) inspect facilities and premises.

(3) Any person who obstructs an ofcer of the Commission from performing his or her duties and functions as provided in the Act or these Regulations shall be guilty of an offence and shall, if convicted, be liable to a ne not exceeding six thousand shillings or to imprisonment for a term not exceeding six months or to both.

Suspension or 87.

(1) The Commission may, in accordance with the provisions of the cancellation of Act or these Regulations suspend or cancel any postal licence.

licences.

(2) Upon the suspension or cancellation of a licence by the Commission, no licensee shall be entitled to a refund of any fees paid in respect of such licence.

88.

(1) A postal licensee may enter into any written agreement with Interconnection.

another postal licensee to interconnect their postal services.

(2) An interconnection agreement referred to in paragraph (1), shall be led with the Commission within thirty (30) days after the date of such agreement.

(3) No postal or courier licensee shall use a public postal licencees network to deliver mail outside Kenya except with prior written consent of that public postal licensee.

(4) No postal licensee shall bundle letters and insert into a public postal licensees network with the intention of having such bundles conveyed by that 140 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] public postal licensee except with the written consent of that public postal licensee.

Disposal of 89.

(1) Letters or other postal articles that are undeliverable due to an undeliverable postal unreadable or non-existent address may be opened by a postal licensee and articles.

where the letter or articles is capable of being delivered based on information in the letter or article, the letter or article shall be delivered accordingly.

(2) Where a letter or postal article opened as provided in paragraph (1), is incapable of being delivered, but contains the senders address, it shall be returned to such sender.

(3) Where a letter or postal article is incapable of being delivered but has a senders address on it, it shall be returned to such a sender un opened.

(4) Every undeliverable postal article that has been opened and remains undeliverable may be kept for a minimum period of three months and may thereafter be destroyed: Provided that where such a letter or postal article contains any thing of value or a saleable article, it shall be safely kept and a record thereof opened and maintained by any postal licensee for a period of six months and if unclaimed, the contents shall be disposed off in accordance with any written law.

(5) Where a letter or postal article is returned to a sender by reason of being undelivered as addressed and that sender refuses to take delivery of the same, the letter or postal article shall be dealt with as provided for in paragraph (4).

Part XItarIffs regulatIon Scope.

90.

(1) Except as provided in regulation 97, this Part shall apply to licensed services which are not open to competition and whose tariffs are subject to regulation by the Commission.

Price cap.

91.

(1) All licensees whose tariff rates are subject to review by the Commission pursuant to the price cap condition provided for in respective licences shall le with the Commission applications for the adjustment of such tariff rates.

(2) All licences for services that are subject to price cap condition shall contain the period in which such tariffs may be adjusted once a year.

(3) The obligation to comply with the terms and conditions of the price cap shall extend from the date on which a licence becomes effective up to the period when the services whose tariffs are regulated are open to competition as provided for in the relevant licences or as may be determined by the Commission.

Applications for tariff approval.

92.

All applications for approval of tariffs shall be led with the Commission and shall Rev.

2011] Kenya Information and Communications CAP.

411A 141 [Subsidiary] (a) conform to the methodology and formula dened in the relevant licence or such other terms as the commission may prescribe; and (b) contain relevant documentation, including all calculations and other information in support of the application.

Notice on tariffs.

93.

(1) The Commission shall, at least sixty (60) days before approving any proposed tariffs submitted to it under regulation 93, give notice in the Gazette and in such other manner as it considers necessary (a) specifying the name and particulars of the licensee or class of licensees providing the service to which the tariffs relates; (b) stating the reasons for the proposed review of the tariffs and the new tariffs; (c) specifying the time within which representation or objections may be made to the proposed new tariffs.

(2) The Commission shall in considering the application for review of the tariffs take into account such written representations or objections received under paragraph (1) (c).

94.

(1) Any proposed tariffs under the price cap condition shall be deemed Decision on tariffs.

approved if the Commission does not communicate its disapproval of the same to the applicant within sixty (60) days after receipt of the application or within fteen (15) days after the applicant has furnished the Commission with any information sought and the Commission has not indicated its approval of the proposed tariffs.

(2) The Commission may reject an application for the imposition of proposed tariffs if it is of the view that the proposed rates are unjustiable.

(3) A decision of the Commission rejecting the imposition of proposed tariffs shall (a) be in writing; (b) state the reasons for the rejection; and (c) be made available to the licensee.

(4) Upon approval by the Commission of any new tariffs, a licensee shall notify its customers of the new tariffs through publication in the Gazette or in such other publications as the Commission may determine and shall in such notice provide for a grace period of not less than fourteen days before implementing the new tariffs.

142 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] Investigation and 95.

(1) The Commission may, on its own motion or pursuant to a suspension of tariffs.

complaint made under this regulation, investigate any tariffs charged by a licensee.

(2) An application for investigation, suspension or rejection of any tariffs brought under subsection (1) shall (a) be in writing; (b) specify the name and address of the petitioner and state the interest of such petitioner; and (c) the reasons why such tariffs should be investigated, suspended or rejected.

(3) Where after the investigations, the Commission is of the view that the tariffs should be suspended or rejected, it may reject or suspend such tariffs: Provided that in case of a suspension of the tariffs the Commission shall notify the licensee and give such licensee twenty (20) days to respond to the intended cancellation.

Tariffs (le and use).

96.

(1) All licensees under the Act who provide services to the public shall le with the Commission schedules of their tariff rates including those of their agents and correspondents.

(2) All licensees whose services are not subject to the price cap condition shall le with the Commission changes to existing tariffs, including the terms and conditions applicable thereto but excluding special offers and other promotions.

(3) All licensees, unless exempted by the Commission, shall only charge their customers the led tariffs and shall further ensure that all led tariff rates are printed and kept open for public review and inspection and shall furnish its customers upon request with such schedules.

(4) In this Part unless the context otherwise requires price cap means a methodology where the price charge for a service is allowed to change by the rate of ination over the initial price with an adjustment factor (X) based on factors such as technological changes, need to nance development infrastructure and need to adopt efcient working systems; and tariff-regulated services means services offered by a licensee which are not open to competition and whose tariffs are subject to regulation by the Commission.

Part XII(Revoked by L.N.

28/2010) Part XIIImIsCellaneous ProvIsIons Roaming agreements.

101.

(1) Mobile cellular telecommunications licensees may enter into Rev.

2011] Kenya Information and Communications CAP.

411A 143 agreements to provide roaming services on a reciprocal basis to every other [Subsidiary] licensee of mobile cellular service that requests such service.

(2) An agreement to provide roaming services shall, upon request, require a licensee to provide mobile cellular telecommunications to all subscribers of another licensee of a mobile cellular telecommunications system, while such subscribers are located within any portion of the licensees authorised geographic service area where facilities have been constructed and service to subscribers has commenced, if such subscribers are using mobile equipment that is technically compatible with the licensees base stations.

102.

(1) Any person who intends to be a contractor of telecommunications Registration of wiring or a vendor of a telecommunications or vendors of such equipment or telecommunications apparatus shall register with the Commission upon payment of the prescribed contractors and fees.

vendors.

(2) Upon application and registration, the Commission shall issue such contractor or vendor with a registration certicate in the prescribed form.

(3) Any person who conducts any business of wiring, installing or maintaining customer premises equipment or vending of telecommunications equipment without a registration certicate from the Commission shall be guilty of an offence.

103.

The fees structure set out in the Second Schedule shall be applicable Fees.

in respect of any application made under these Regulations and may be reviewed from time to time by the Minister.

FIRST SCHEDULEPRESCRIBED FORMS Form No 1 Regulations 12, 69 and 77.

COMMUNICATIONS COMMISSION OF KENYA APPLICATION FOR LICENCES 1.

NAME OF COMPANY/PERSON TO BE LICENSED (The Company or persons name should be stated in full) 2.

ADDRESS AND TELEPHONE NUMBER OF THE COMPANY/ PERSON TO BE LICENSED (The physical address, postal address, telephone and fax numbers should be stated) Physical address: Town.

Street/Road.

LR No 144 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] fIrst sChedule(Contd) Name of Building.

Floor.

Room.

Postal Address.

P.O.

Box.

Town Telephone.

Fax 3.

INCOME TAX PERSONAL IDENTIFICATION NUMBER (PIN) 4.

SHORT DESCRIPTION OF THE APPLICATIONS LICENSABLE SERVICE (A single sentence description of what aspect of postal service the applicant is applying to be licensed in) 5.

NAME OF COMPANY/PERSON TO BE LICENSED (Give full details of the proprietors or partners owning the business or if the applicant is a Company the names of the directors and shareholders of the Company) Where the Applicant is not a company Name of proprietor Nationality Address Passport/ID No.

1.

.

.

.

2.

.

.

.

3.

.

.

.

4.

.

.

.

5.

.

.

.

6.

.

.

.

7.

.

.

.

Where the Applicant is a Company i) Name of Shareholder Nationality No.

of shares held Passport/ID No.

1.

.

.

.

2.

.

.

3.

.

.

4.

.

.

ii) Name of Director Nationality Address Passport/ID No.

1.

.

.

.

2.

.

.

.

3.

.

.

.

4.

.

.

.

6.

SHARE HOLDING Rev.

2011] Kenya Information and Communications CAP.

411A 145 fIrst sChedule(Contd) [Subsidiary] (i) Local .% Foreign % (ii) Authorised Shares Issued Shares (iii) Is the company listed in the Nairobi Stock Exchange? If yes, state the date on which it started trading.

7.

REGISTRATION CERTIFICATE Certicate No.

.

Date 8.

NAME AND ADDRESS OF THE BANK OR FINANCIAL INSTITUTION WHERE BUSINESS ACCOUNT IS MAINTAINED 9.

DETAILS OF THE SERVICES PROPOSED AND MARKET TO BE SERVED (Use separate sheet where necessary) 10.

PERSONAL DETAILS i) State whether any of the partners/directors/shareholders is undischarged bankrupt.

(If so, indicate the names).

ii) State whether any of the partners/directors/shareholders have a benecial interest in any other business licensed to provide or operate postal services.

.

iii) Has any previous application by you been rejected under the Act? (If so, give details) 146 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] fIrst sChedule(Contd) iv) Has any previous licence granted to you under the Act been cancelled, suspended or modied? (If so, give details).

11.

MANDATORY REQUIREMENTS i) Certied copy of proof of shareholding from the Registrar of Companies ii) Certied copy of proof of registration or incorporation in Kenya iii) Certied copy of PIN card iv) Non-refundable licence application fee of Kshs 10,000/= v) Letter of application with Company seal (where applicable) (All documents attached to this application should be certied as true copies of the originals) 12.

COMPLETED APPLICATION FORMS SHOULD BE RETURNED TO: Director-General Communications Commission of Kenya 13.

DECLARATION I/We hereby certify the information we have provided in this application is true and correct.

I/We also understand that it is an offence under the Penal Code to give false information in support of any application.

Name.

Designation.

Signature.

Date.

Rev.

2011] Kenya Information and Communications CAP.

411A 147 fIrst sChedule(Contd) [Subsidiary] FOR OFFICIAL USE ONLY The applicant MEETS/DOES NOT MEET the Commissions requirements and is hereby RECOMMENDED/NOT RECOMMENDED for approval of licensing as a The reasons for not recommending the applicant are as follows: Name Designation Signature Date Ofcial stamp 148 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] fIrst sChedule(Contd) FORM NO.

2 Regulations 52 and 57 COMMUNICATIONS COMMISSION OF KENYA APPLICATION FOR TYPE APPROVAL/ACCEPTANCE 1.

PARTICULARS OF VENDOR (i) Full names of Company/Business P.O.

Box Tel No.: Fax No.

E-mail.

(ii) Physical Address: Town.

Estate.

Street/Road Name of building.

Floor Room.

2.

DESCRIPTION OF EQUIPMENT ITEM TYPE MANUFACTURER 7MAKE AND SERIAL COUNRTY NO MODEL NUMBER/ OF IMEI ORIGIN 3.

REQUIRED ITEMS (i) Letter of Agency from manufacturer or principal distributor.

(ii) Non-refundable approval/acceptable fee of Ksh vide Receipt No of (iii) Sample of equipment/instrument model complete with associated accessories and attachments.

(iv) Detailed technical documentation (operation, programming, service, technical, circuitry) in English language.

(v) Test report (Results) from manufacturer or accredited laboratories and test schedules.

(vi) List from manufacturer stating other countries where the equipment is type approved and in service.

4.

DECLARATION I hereby apply for provisional Type Approval/Acceptance/authority to market the equipment(s) specied above in Kenya on behalf of my company.

I certify that all the information I have given in this form is correct to the best of my knowledge.

Rev.

2011] Kenya Information and Communications CAP.

411A 149 fIrst sChedule(Contd) [Subsidiary] Applicants Name Sign.

Date Contact Tel No.

5.

FOR OFFICIAL USE ONLY (i) Case No.

.

(ii) Evaluating ofcers name Sign (iii) Approval Recommended/Not Recommended (Delete where not applicable).

(iv) TAC No.

Approved/Not Approved/Deferred (Delete where applicable) FORM NO.

3 Regulation 57 COMMUNICATIONS COMMISSION OF KENYA APPLICATION FOR FINAL TYPE APPROVAL/ACCEPTANCE 1.

PARTICULARS OF VENDOR i) Full names of Company/Business.

P.O.

Box.

Tel No.: Fax No.

Email ii) Physical Address: Town.

Estate.

Street/Road Name of Building Floor.

Room.

2.

DESCRIPTION OF EQUIPMENT ITEM TYPE MANUFACTURER MAKE AND SERIAL COUNRTY NO MODEL NUMBER/IMEI OF ORIGIN 3.

DETAILS OF INSTALLATIONS 150 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] fIrst sChedule(Contd) ITEM MAKE, DATE DATE OF POSTAL, CONTACT NO MODEL, PROVISIONALLY INSTALLATION TELEPHONE, PERSON & TYPE OF APPROVED BY CCK FAX, E-MAIL RANK IN EQUIPMENT & REFERENCE & PHYSICAL ESTABLIS NUMBER ADDRESS OF HMENT REFERENCE Please continue on a separate sheet.

Also attach details of employees and their qualications and details of workshop.

4.

DECLARATION I hereby apply for Final Type Approval/Acceptance/authority to market the equipment(s) specied above in Kenya on behalf of my company I certify that all information I have given in this form is correct to the best of my knowledge.

Applicants Name.

Sign Date Contact Tel No.

5.

FOR OFFICIAL USE ONLY (i) Case No.

(ii) Evaluating ofcers name Sign (iii) Approval Recommended/Not Recommended (Delete where not applicable).

(iv) TAC No./Item No.

Approved/Not Approved/Deferred (Delete where applicable).

Rev.

2011] Kenya Information and Communications CAP.

411A 151 FORM NO.

4 Regulation 56 [Subsidiary] COMMUNICATIONS COMMISSION OF KENYA APPLICATION FOR INDIVIDUAL AUTHORITY TO USE TELECOMMUNICATION TERMINAL EQUIPMENT 1.

PARTICULARS OF APPLICANT (i) Full names of Applicant/Company.

P.

O.

Box Tel No (ii) Physical Address where the equipment will be used Town.

Road/Street/Estate.

Building (iii) Details of Network in which the equipment is to be connected (i.e.

Radio/Data etc).

(iv) Type of service for which the equipment is intended to be used (e.g.

ISP access, Bureau, Residential voicemail, etc).

(v) Telephone/Circuit number(s) to which the equipment will be connected (where applicable).

2.

DESCRIPTION OF EQUIPMENT ITEM TYPE MANUFACTURER MAKE AND SERIAL COUNRTY NO MODEL NUMBER/IMEI OF ORIGIN 3.

REQUIRED ITEMS (i) Sample of equipment/instrument model complete with associated accessories and attachments.

(ii) Technical Manuals (Operation, Programming, specications).

(iii) Nonrefundable approval/acceptance fee of Kshs.

vide Receipt No of (iv) Maintenance contract letter from registered Contractor (where applicable).

(v) Copy of purchase/import ownership documents.

152 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] fIrst sChedule(Contd) 4.

DECLARATION I hereby apply for authority to use the equipment specied above in Kenya.

I certify that all information I have given in the form is correct to the best of my knowledge.

Applicants Name Sign.

Date Contact Tel No 5.

FOR OFFICIAL USE ONLY (i) Case No (ii) Evaluating ofcers name.

Sign (iii) Approval Recommend/Not Recommended (Delete where not applicable).

(i) TAC No.

Approved/Not Approved/Deferred (Delete where applicable).

FORM NO.

5 Regulation 18 COMMUNICATIONS COMMISSION OF KENYA APPLICATION FOR FREQUENCY ASSIGNMENT AND LICENCE IN RADIO COMMUNICATION SERVICE 1.

Administrative details: a) Name of the organization (or individual) Nationality ID/PP No Postal address Business Telephone Fax Physical Location: Road/Street Building LR No b) Name and postal address of the local supplier (if any) Postal address Business Telephone.

Fax c) Type of radio communication service service: HF MF FM (delete as appropriate) d) Authorised broadcast area(s) Rev.

2011] Kenya Information and Communications CAP.

411A 153 fIrst sChedule(Contd) [Subsidiary] (attach certied copy of broadcasting permit) e) Name of person/organization responsible for payment of bills 2.

Transmit Site Details: i) Name.

ii) Land registration number.

.

iii) Road/Area.

iv) Geographical co-ordinates: Latitude: Degrees Minutes.

Seconds.

(N/S) Longitude: Degrees.

Minutes Seconds .(E) v) Altitude above sea level (in meters).

vi) Relative height around 15 kilometer radius.

3.

Transmitter Equipment Details: a) Equipment and performance characteristics.

i) Name Model.

Serial number.

ii) Carrier output power iii) Effective Radiated Power (dBW).

iv) Transmission system (applicable to FM systems only): System 1: Monophonic, max deviation +/-75 kHz System 2: Monophonic, max deviation +/-50 kHz System 3: Stereophonic, polar modulation, max deviation +/-50 kHz System 4: Stereophonic, pilot tone system, max deviation +/-75 kHz System 5: Stereophonic, pilot tone system, max deviation +/-50 kHz v) RF bandwidth.

Hz vi) IF bandwidth at 3dB level.

Hz vii) RF Filter Loss.

dB b) Transmit antenna details: i) Type of antenna.

ii) Antenna height above ground level.

iii) Relative antenna height around a 15 kilometer radius.

iv) Radiation pattern: a) Omnidirectional: (YES or NO) b) If not omnidirectional provide the following details: (1) Azimuth of the main lobe.

(2) Angular beam width of the main lobe at the 3 154 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] fIrst sChedule(Contd) dB point.

(3) Radiation suppression at every 10 (use a separate sheet of paper) v) Antenna gain in dBi.

c) Feeder: i) Feeder type ii) Attenuation per meter dB iii) Total feeder loss dB 4.

Miscellaneous data: a) Hours of operation: From.

Hours To Hours.

b) Proposed date of commencement of service.

Date Signature of applicant:.

Name: Designation:.

Ofcial Stamp.

Form No 6 Regulation 18 COMMUNICATIONS COMMISSION OF KENYA APPLICATION FOR FREQUENCY ASSIGNMENT AND LICENCE IN THE FIXED AND MOBILE RADIO COMMUNICATION SERVICE.

1.

Administrative details: a) Name of the organization (or individual).

Nationality.

ID/PP No.

.

Postal address.

Business Telephone.

Fax.

Physical location: Road/street.

Building LR No.

b) Purpose for which this service is required.

c) Name of person/organization responsible for payment of bills.

2.

Transmit Station: a) Transmitter site details (for xed station): i) Name.

Rev.

2011] Kenya Information and Communications CAP.

411A 155 fIrst sChedule(Contd) [Subsidiary] ii) LR No.

.

iii) Road/Area.

iv) Geographical co-ordinates: Latitude: deg.

min.

sec .(N/S) Longitude: deg.

min.

sec .(E).

v) Altitude above sea level (in metres) vi) Radius of service area in kms.

.

b) Equipment details: i) Station Conguration: Fixed/Mobile (delete as appropriate) ii) Make Model Serial number iii) Name and postal address of the local supplier (if any).

Postal address.

Business Telephone.

Fax.

iv) Channel capacity.

v) Carrier output power (Watts).

vi) Duplex spacing.

vii) Adjacent channel spacing viii) Power to antenna.

ix) System deviation (or equivalent for digital systems).

x) FM noise and hum level (in case of analogue systems) xi) Bit error rate (in case of digital systems) xii) Conducted spurious emissions.

xiii) Radiated spurious emissions.

.

xiv) Audio frequency harmonic distortion.

.

xv) Emission designation.

.

xvi) Operating frequency band.

xvii) RF bandwidth.

xviii) IF bandwidth at -3dB level.

xix) Receiver sensitivity rated at 12 dB SINAD.

xx) Receiver adjacent channel selectivity xxi) Desensitisation.

xxii) Threshold/squelch level.

xxiii) RF Filter Loss c) Transmit antenna details: i) Type of transmit antenna.

ii) Antenna height above ground level.

iii) Relative antenna height around a 15 kilometre radius.

156 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] fIrst sChedule(Contd) iv) Directivity.

v) Azimuth of the main lobe.

vi) Angular beam width of the main lobe at the 3 dB point vii) Antenna gain in dBi.

d) Receiving antenna details (if different from transmitting antenna): i) Type of receiving antenna and its directivity.

ii) Azimuth of the main lobe.

iii) Angular beam width at the 3 dB power point iv) Receiving antenna gain in dBi e) Feeder: i) Feeder type.

ii) Attenuation per metre.

iii) Total feeder loss 3.

Associated Receiving Station.

a) Receiver site details: i) Name ii) LR.

No.

.

iii) Road/Area.

iv) Geographical co-ordinates: Latitude: deg.

min.

sec .(N/S) Longitude: deg.

min.

sec .(E).

v) Altitude above sea level (in metres) vi) Antenna height above ground level.

vii) Relative antenna height around a 15 kilometre radius 4.

Miscellaneous data.

a) Maximum hours of operation.

b) Class of station.

Nature of service.

(Insert prex, see NOTE 1 & 2) c) Proposed date of putting into use.

d) Path length in kms (for FIXED service).

e) Radius of service area in kms (for MOBILE service).

f) Registration numbers of vehicles to be tted with mobiles.

Date.

Signature of applicant:.

Name.

Designation:.

Rev.

2011] Kenya Information and Communications CAP.

411A 157 SECOND SCHEDULEFEES [Subsidiary] COMMUNICATIONS COMMISSION OF KENYA LICENCE FEES PAYABLE BY VARIOUS TYPES OF TELECOMMUNICATIONS NETWORK OPERATORS AND SERVICE PROVIDERS IN KENYA (A) FACILITYBASED NETWORK OPERATORS CATEGORY OF LICENCE APPLICATION ANNUAL FEE OPERATING LICENCE FEE Operation of local systems and the 10,000/- 0.5% of audited annual provision of local services.

gross turnover Operation of Long distance systems 10,000/- 0.5% of audited annual and provision of long distant gross turnover services Operation of international systems 10,000/- 0.5% of audited annual and provision of international gross turnover services Operation of cellular mobile 10,000/- 0.5% of audited annual systems and provision of mobile gross turnover cellular services Operation of paging systems and 10,000/- 100,000/- provision of paging services Internet service provider (ISP) 10,000/- 100,000/- Existing private network operators 10,000/- 100,000/- (e.g.

KPLs, KP&LCs, KRs etc).

(B) VENDORS, CONTRACTORS, INSTALLERS AND MAINTAINERS OF TELECOMMUNICATIONS 158 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] seCond sChedule(Contd) WIRING AND TERMINAL EQUIPMENT CATEGORY APPLICATION REGISTRATION ANNUAL FEE FEE FEE Telecommunications Vendor (V) 1,000 5,000 2,000 Telecommunications Terminal Equipment Installation 1,000 5,000 2,000 Contractor (I) Telecommunications Terminal Equipment Maintenance 1,000 5,000 2,000 Contractor (M) Internal Telecommunications Wiring Contractor (W) 1,000 5,000 2,000 External Telecommunications Wiring Contractor (E) 1,000 5,000 2,000 (C) TECHNICAL PERSONNEL Rev.

2011] Kenya Information and Communications CAP.

411A 159 seCond sChedule(Contd) [Subsidiary] CATEGORY APPLICATION REGISTRATION ANNUAL FEE FEE FEE Telecommunications Class A Terminal Equipment 2,000 Installer (Installation 500 Not Engineer/Technician) Class B Applicable (I) 2,000 Class C2,000 Telecommunications Class A Terminal Equipment 2,000 Maintainer Not (Maintenance 500 Class B Applicable Engineer/Techinician) 2,000 (M) Class C2,000 Internal Telecommunications 2,000 Not Wiring Engineer/ 500 Applicable Technician) (W) External Class A Telecommunications 500 2,000 Wiring Engineer/ Not Technician) (E) Applicable 160 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] seCond sChedule(Contd) (D) MOBILE SATELLITE SERVICES APPLICATION INSPECTION FEE ANNUAL FEE Inmarsat A1,000 N/AN/A Inmarsat B1,000 N/AN/A Inmarsat C1,000 N/AN/A Inmarsat M1,000 N/AN/A Inmarsat mini-M1,000 N/AN/A Inmarsat AERO 1,000 N/AN/A Inmarsat HSD option (standard) 1,000 N/AN/A Inmarsat HSD option (64 Kb/s) 1,000 N/AN/A VSAT interactive (Single user) 1,000 25,000 100,000 VSAT interactive (Multi-user) 1,000 25,000 100,000 VSAT Receive only 1,000 25,000 50,000 Radio Determination & Related 1,000 1,000 5,000 services Space Research & Related 1,000 25,000 500,000 Services Amateur Satellite Services 1,000 25,000 50,000 COMMUNICATIONS COMMISSION OF KENYA Rev.

2011] Kenya Information and Communications CAP.

411A 161 seCond sChedule(Contd) [Subsidiary] FREQUENCY SPECTRUM FEES SERVICE.

DESCRIPTION ANNUAL FEES PER STATION PER FREQUENCY IN Kshs.

MF/HF VHF/UHF 1.

AERONAUTICAL A licence to Kshs.

4,800 Kshs.

4,800 STATION LICENCE establish a radio station for carrying radiocommunication with aircraft station.

2.

AIRCRAFT STATION A licence to establish a Kshs.

4,800 Kshs.

4,800 LICENCE.

mobile station aboard an aircraft, to operate in the aeronautical mobile service.

3.

LICENCE FOR FIXED A licence to establish Kshs.18,700.

Kshs.

5,000 STATION a radiocommunication OPERATING station at a xed IN MOBILE location for carrying SERVICE.

on a Mobile Radiocommunication Service.

4.

MOBILE STATION A licence to install Kshs.

5,610 Kshs.

2,900 LICENCE and use radio apparatus for transmitting and receiving aboard a vehicle, aircraft, or a ship.

5.

PORTABLE STATION A licence to a portable Kshs.

5,610 Kshs.

2,900 LICENCE radio communication apparatus to operate in the mobile service.

6.

COAST STATION A licence to establish Kshs.

5,610 Kshs.

2,900 LICENCE.

a station and land for carrying on a service with ship stations.

7.

SHIP STATION A licence to install and Kshs.

5,610 Kshs.

2,900 LICENCE.

use radio apparatus aboard ships.

162 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] seCond sChedule(Contd) SERVICE.

DESCRIPTION ANNUAL FEES PER STATION PER FREQUENCY IN Kshs.

MF/HF VHF/UHF 7.

SHIP STATION A licence to install and Kshs.

5,610 Kshs.

2,900 LICENCE.

use radio apparatus aboard ships.

8.

RADIO AMATEUR A licence to install and Kshs.

2,000 Kshs.

2,000 LICENCE.

operate an amateur radio station.

9.

CITIZEN BAND A licence to operate Kshs.

1,000 Not applicable.

RADIO LICENCE.

a low power radio apparatus operating in the frequency bands 26925 kHz to 27403 kHz.

10.

PRIVATE PAGING A licence to operate aN/A Kshs.

25,000 SERVICE.

radio paging service for private use.

11.

PUBLIC PAGING A licence to operate aN/A Kshs.

140,000 SERVICE.

radio paging service for public use (base station) 12.

RADIO PRESS A licence for a radio Kshs.10,000.

Kshs.

10,000.

RECEPTION station to receive press LICENCE messages from stations transmitting multi- destination radio press messages.

13.

Alarm systems The basic charge for each alarm unit is Ksh.1250, but the specic charges for each particular customer will be determined by the applicable charge grouping.

14.

Broadcasting Stations & xed satellite earth stations The fee payable for broadcasting stations and xed satellite earth stations is commensurate with the power and the occupied bandwidth, and calculated on the basis of these parameters using the following formula: Fees per transmitter or carrier in Kenya shillings is : Rev.

2011] Kenya Information and Communications CAP.

411A 163 seCond sChedule(Contd.) [Subsidiary] =Klog P (watts)+ K log (P 1000 x BW(kHz) x 574.10 1 10 nom 2 10 tot 25 watts 25 watts 8.5 kHz Where, a) K1 = 1 for the rst 1 kW of radiated carrier power b) K2 = 0.2 for additional power above 1 kW.

c) 25 watts is the maximum power allowable for VHF base stations.

d) 8.5 kHz is maximum allowable RF bandwidth for VHF base stations.

e) Pnom is the nominal transmitter power.

f) Ptot is the effective isotropically radiated power.

g) Bandwidth is the width, of frequency band that is just sufcient to ensure that transmission of information at a rate and with the quality acceptable under specic conditions 15.

Terrestrial Links (Fixed station Licence) A licence to establish a radio communication station at a xed location for carrying on a Fixed Radiocommunication Service to provide a public service.

This category of license is drawn for radio stations used to interconnect two specied xed points.

The fee payable for this licence is based on the occupied bandwidth, and is calculated using the following formula: The fee, F (KShs.) per transmitter per location is: F(Kshs) = RF Bandwith (kHz ) x Number of x K1 x Unit fee 8.5 kHz RF channels Where, unit fee =574.10, as Kshs.

574.10 is the unit spectrum fee for a8.5khz band.

164 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] seCond sChedule(Contd) K1 = 0.6 for frequency band <1700mhz = 0.5 for frequency band 1700 to 10000 Mhz = 0.4 for frequency band > 10000 Mhz.

Where RF means Radio Frequency, and other parameters are as dened above.

Transmitter shall include terminal and repeater stations.

The formula is applicable to point-to-point links, microwave radio relay equipment, studio-to-transmitter links etc.

16.

Cellular Networks and Fixed Wireless Access networks Licence to establish a xed radio station to operate a mobile cellular radio service and Fixed wireless Access.

Fee F (Kshs) = 2x RF Bandwith (kHz ) x(number of cell sites) x 1043.65 8.5 kHz The parameters are as dened above.

17.

Trunked Network (Mobile Trunked Radio Licence) A licence to operate a private trunked radio network The fee, F per transmitter per location is: F (Kshs) = RF Bandwith (kHz ) x (number of cell sites) x 574.10 8.5 kHz The parameters are as dened above.

18.

Alarm Systems The basic charge for each alarm is Kshs 1250, where the specic charges for each particular customer will be determined by the applicable charge grouping.

19.

Single channel radios Rev.

2011] Kenya Information and Communications CAP.

411A 165 seCond sChedule(Contd) [Subsidiary] The fee, F per transmitter per location is: F (Kshs) = RF Bandwith (kHz ) x 1043.65 8.5 kHz 20.

The Commission is not bound to use any or all of the above formulas if in its opinion the service involved require technical or other considerations.

Spectrum fees for radio equipment not covered in the above schedule shall be determined at the time of application.

COMMUNICATIONS COMMISSION OF KENYA TYPE APPROVAL /ACCEPTANCE FEES (A) GENERAL EQUIPMENT DESCRIPTION FEES (Ksh) Type approval Type approval of equipment for of equipment individual use for purposes of by the applicant.

marketing.

Telephony Instrument a) Ordinary 600 10,000 b) Executive 900 15,000 c) Cordless 1,000 15,000 Telephony Terminals a) 2 line Executive 1,200 20,000 b) Cordless with Executive telephone 1,200 20,000 c)Intelligent executive 2,000 30,000 telephone d) Private payphone 2,000 15,000 Facsimile Transceiver a)Without Integral 3,000 20,000 answering/recording facility b) With integral 3,500 24,000 answering/recording facility Teleprinter All types 3,000 15,000 166 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] seCond sChedule(Contd) Answering systems Answering machine 400 8,000 a) Ordinary Answer 1,100 14,000 Phone b) Executive Answer 1,400 19,000 phone.

Data terminals, PADs All types 8,000 18,000 & MUXs Data Modems a) Data only 1,000 15,000 b) Data/fax/voice 2,000 20,000 Radio Communications a) HF/VHF/UHF for 3,000 25,000 use in private radio networks.

a) HF/VHF/UHF for 3,000 30,000 use in public radio network.

b) Radio alarm 2,300 23,000 transmitter.

c) Citizen band 1,600 23,000 d) Amateur 3,000 27,000 Paging systems e) Wide area Paging 4,000 30,000 transmitter.

f) Pager receiver unit 1,600 15,000 for use in wide area paging networks.

g) On site paging 3,000 20,000 transmitter.

h) Pager receiver 1,500 15,000 unit for use in on-site paging system Broadcast transmitters i) Radio broadcast 40,000 40,000 Transmitters j) Television Broadcast 40,000 40,000 Transmitters Integrated Answer/ All types (NB.

Mark 500 4,000 Recording facility.

up loaded to secretarial sets with this facility).

Subscribers Private All types 600 8,000 Meter Call barring units All types 600 8,000 Rev.

2011] Kenya Information and Communications CAP.

411A 167 seCond sChedule(Contd) [Subsidiary] Bureau meters/Public All types 1,000 12,000 Call ofce monitors Cellular Telephones GSM, GMPCS, 10,000 40,000 ETACS.

Fixed Wireless Local All types 3,000 30,000 Loop Terminals Inmarsat Mobile Earth All types 10,000 40,000 Terminals (B) CALL ROUTING EQUIPMENT:PMBXs, PABXs, VOICE MESSAGING SYSTEMS, AND SBSs.

CAPACITY (PORTS) INDIVIDUAL MARKETING PRIVATE MANUAL BRANCH EXCHANGES: ALL TYPES 4,800 9,700 PRIVATE AUTOMATIC BRANCH EXCHANGES: ONE LINE SYSTEMS, MAX 1+42,500 5,000 >1 EXCH.

LINE < 10 PORTS 6,200 12,500 > 10 PORTS < 20 PORTS 10,000 20,000 >20 PORTS < 40 PORTS 17,500 35,000 >40 PORTS < 120 PORTS 30,000 60,000 >120 PORTS < 200 PORTS 37,500 75,000 >200 PORTS < 300 PORTS 42,500 85,000 >300 PORTS < 500 PORTS 45,000 90,000 >500 PORTS 50,000 100,000 VOICE MESSAGING SYSTEMS AS ABOVE Notes: (a) A telephone shall be deemed to be executive if it has both loop disconnect and dual tone multi frequency dialing modes and any two of the following features: (i) memories for storing telephone numbers; (ii) liquid crystal display; and (iii) full hands free facility.

(b) Answering facility means an in built answering and recording facility 168 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] seCond sChedule(Contd) for voice and fax messages.

(C) OTHER SERVICES (i) General Information Services List of Type Approved equipment Ksh.

50 per equipment type (ii) Technical Information Technical specications Ksh.

200 per equipment type (iii) Miscellaneous services Exhibition/Demonstration of equipment/System: Registered vendor: Ksh.

1,000 rst day Ksh.

500 each consecutive day Non-registered vendor: Ksh.

2,000 rst day Ksh.

1,000 each consecutive day Copy of Type Approval certicate/Ksh.

250 Change of name on certicate Letter of no objection to import equipment.

Ksh.250 POSTAL LICENCE AND OPERATING FEES Regulation 81 Category Annual Licence Fees (i) Public Postal Licensee 1% of Gross Annual Turnover (ii) Dominant International Operators US D 25,000 or equivalent (iii) International Inbound Only US D.

2000 or equivalent (iv) Other International Operators US D.

7000 or equivalent (v) Dominant Regional/Intercountry US D 8000 or equivalent Operators (vi) Other Regional/Intracountry US D 2500 or equivalent Operators (vii) Intracity Operators US D 1200 or equivalent (viii) One off Licence Application Fees KSHS 10,000/ Rev.

2011] Kenya Information and Communications CAP.

411A 169 [Subsidiary] THE KENYA INFORMATION AND COMMUNICATIONS L.N.

187/2009.

(BROADCASTING) REGULATIONS, 2009 1.

These Regulations shall be cited as the Kenya Information and Citation.

Communications (Broadcasting) Regulations, 2009.

Corr.

2010.

Part IPrelImInary 2.

In these Regulations, unless the context otherwise requires Interpretation.

Corr.

2010.

Act means the Kenya Information and Communications Act,1998; No.

2 of 1998.

advertise means to broadcast any item in return for payment or other valuable consideration to a broadcaster with the intention of (a) selling to a viewer or listener, any product or service; (b) convincing a viewer or listener of a belief or course of action; or (c) promoting a product, service, belief, course of action, person or organisation; broadcasting licence means a license issued by the Commission permitting the licensee to provide broadcasting services; broadcast market means the area, specied in the broadcasting licence by the Commission, within which a licensee is licensed to operate; child means any human being under the age of eighteen years; disaster means a serious disruption of the functioning of the society causing widespread human, material or environmental damage and losses which exceeds the ability of the affected community to cope using their own resources, and includes any event or circumstance arising out of accidents, natural phenomena, res, oods, explosions,or incidents involving exposure or potential exposure to radioactive or toxic materials; infomercial means any advertising broadcast in visual or audio form, lasting for more than two minutes, which may contain demonstrations of the use of the product or service advertised, and includes direct offers to the public in return for payment, and results in the broadcaster receiving payment in monetary terms or otherwise; licensee means holder of a broadcasting services licence; local content means the total of all television or radio programmes which full any ve of the following conditions: (a) the production is made in either Kenyas native languages or ofcial languages of Kenya; 170 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (b) production was done in Kenya; (c) the content deals with issues that are unique and relevant to Kenyan audiences; (d) at least twenty per centum of the share of the production company are owned by Kenyans; (e) a majority of the artistes are Kenyans; (f) the location of shooting, in case of audiovisual programmes or performance was in Kenya; (g) the author thereof must be a Kenyan national and in case of co- authorship or multi-authorship fty per centum or more of the authors must be Kenyan; (h) the production is made under Kenyan creative and technical control, but does not include news and commentaries; national emergency organizations include the police force, security forces, re brigade, ambulance services, medical services, veterinarian services and environmental disaster agencies, whether or not such organizations are owned and managed on a private or public organizations; No.

10 of 2007.

political party means a party registered by the Registrar of Political Parties as a political party in Kenya under the Political Parties Act, 2007; polling period means the period covering the period of national general elections are held, including election campaigns and post-election and referendum period; programme means a body of live or recorded material consisting of images, sounds or both embodied in signals emitted for the purpose of ultimate broadcasting; programme segment means a programme which, in audio-visual sense, presents one whole unit, with a beginning and end, clearly separated from other segments and content; public broadcaster means the public broadcaster designated under section 46E of the Act; public emergency service means broadcasting services offered in the event of a disaster emergency on the request of person authorized by the government; re-broadcasting means the simultaneous or subsequent broadcasting by one broadcasting organization of the broadcasts of another broadcasting Rev.

2011] Kenya Information and Communications CAP.

411A 171 organization; [Subsidiary] satellite broadcasting service means a broadcasting service that is broadcasted through transmitters situated on a satellite; sponsored programme means a programme which all or part of its costs are paid by a sponsor, with a view to promoting that sponsors, or another sponsors name, product or service; station programming format means an arrangement of programmes which are presented on a broadcasting station; subscriber means a person who, in relation to subscription television and or radio broadcasts, has entered into an agreement with a provider of subscription radio or television services; subscription broadcasting services includes, among other services, cable broadcasting and multi-channel satellite distribution services from foreign territories that are offered through subscription; subscription management services means a service which involves the provision of support services to a subscription broadcasting service which may include, among other services, subscriber management support, subscription fee collection, call centers, sales and marketing, and technical and installation; terrestrial broadcasts means the services that are broadcast from a transmitter situated upon the earths surface within the country; terrestrial digital signal distributor means any person who provides network facility operator services for multimedia broadcasting; watershed period means the time between 5.00 am and 10.00 pm, or such other time as may be prescribed by the Commission by Notice in the Kenya Gazette, within which content intended for an adult audience is not to be aired.

Part IIlICensIng 3.

(1) Any person who wishes to provide broadcasting services in General Kenya shall apply to the Commission for the licence through the prescribed requirements.

procedure.

Corr.

2010.

(2) The Commission shall provide information relating to the availability of broadcasting frequencies, the application requirements and the selection criteria for issuance of a licence.

(3) A person who wishes to provide broadcasting services in more than one station shall apply for a licence for every broadcasting station it wishes to operate.

(4) The Commission may require an applicant to provide additional documentation or information which that is directly relevant to assessing 172 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] whether the applicant meets the criteria established in the Act and regulations for the grant of the licence.

(5) The Commission shall publish applications received for broadcasting licences in the Gazette and invite the public to comment before it issues a licence.

(6) The Commission shall grant successful a applicant a broadcasting services licence and require the licensee to establish the necessary broadcasting infrastructure and commence broadcasting within a period of twelve months.

(7) The commission shall revoke the licence of a licensee who does not establish the necessary broadcasting infrastructure within the period specied in paragraph (6).

Application for 4.

(1) A person applying for a licence for a free-to-air commercial a Commercial broadcasting service or services shall furnish the Commission with a business broadcasting services plan which shall include the license.

(a) evidence of technical capacity in terms of personnel and equipment to carry out the broadcasting services; (b) evidence of relevant experience and expertise to carry out the broadcasting services; (c) evidence of the capacity to offer broadcasting services for at least eight continuous hours in a day; (d) programme line-up or schedule for the broadcasting services which the licence is sought; and (e) such other information or requirement as the Commission may from time to time prescribe.

(2) A person who applies for a licence to provide subscription television or radio service shall, unless it is otherwise prescribed by the Commission, comply with paragraph (1) and satisfy the Commission that it has the capacity to offer a minimum of ten channels to each subscriber.

Application for 5.

(1) A person applying for a community broadcasting licence shall a community furnish the Commission with broadcasting licence.

(a) information on the service for which the community broadcasting licence is sought for; (b) the minutes of the meeting where it was resolved to establish a community broadcasting station; (c) proof of the sources of funding and sustainability mechanisms; (d) weekly programme schedules for the broadcasting services which Rev.

2011] Kenya Information and Communications CAP.

411A 173 the licence is sought; and [Subsidiary] (e) such other information or requirement as the Commission may from time to time prescribe.

6.

(1) The Commission shall Obligations relating to broadcasting (a) ensure that broadcasting services reect the national identity, needs services.

and aspirations of Kenyans; (b) ensure that broadcasting services are delivered using the most efcient and effective available technologies; (c) develop a frequency plan which sets out how the frequencies available for broadcasting services in Kenya will be shared equitably and in the public interest among various tiers of broadcasting; (d) ensure that every applicant secures relevant permission or entered into agreements or arrangements necessary for the operation of the broadcasting service.

(2) All broadcasters shall (a) annually le with the Commission documents showing their station identity and any changes thereto; (b) ensure that their station identity is unique and does not cause confusion; (b) keep such records as the Commission may prescribe from time to time; (c) reveal their stations identity at intervals of sixty minutes during the period which broadcasts are made from that station; and (d) state, at least twice within a period of twenty four hours, all the frequencies and channels on which the broadcasting station is licensed to operate state.

(3) In the case of free-to-air broadcasting services the Commission shall ensure that the services (a) provide the amount of local content as specied in the licence; (b) include news and information in their programming, as well as discussions on matters of national importance; and (c) adhere to strictly to the Commissions or subscribed programme codes in the manner and time of programming schedules.

174 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] 7.

The Commission may Broadcasting licence fees.

(a) prescribe fees payable for, among others, the broadcasting services licence, application, renewal, transfer, annual licence fee and any other fees related to the services; or (b) exempt the public broadcasting services and any other licence category from payment of any fees prescribed pursuant to paragraph in (1).

Commencement of 8.

A licensee shall, not later than fourteen days before commencement broadcasting service.

of broadcasting services publish a notice in a newspaper, with wide circulation in the licensees coverage area, containing (a) a statement on the licensees intention to transmit a broadcasting service from a station in the licensees coverage area; (b) the commencement date and time of transmissions; (c) the assigned frequency or channel that the station shall operate from; (d) the station programming format; (e) a statement inviting the members of the public to contact the licensee in case any transmission by the licensee causes interference with the services provided by other licensees; and (f) the address and telephone number of the licensee.

Renewal of licences.

9.

(1) A licensee may, within a period of six months before the expiry Corr.

2010.

of its licence apply to the Commission for the renewal of the licence in such manner as the Commission may prescribe.

(2) Where a licence is renewed, the applicant shall prior to the issuance of the licence pay such fees as the Commission may prescribe.

Ownership and 10.

(1) No persons other than the public broadcaster shall be directly or control.

indirectly, entitled to more than one broadcast frequency or channel for radio or television broadcasting in the same coverage area.

Provided the Commission shall prescribe a timeframe for existing stations to comply with this requirement.

(2) The shareholding of a licensee shall at all times comply with the Governments Communications Sector Policy, as may be published from time to time.

(3) A licensee shall, at least ninety days prior to effecting such change, notify the Commission of any proposed change in ownership, control or proportion of shares held in it.

Rev.

2011] Kenya Information and Communications CAP.

411A 175 Provided that: [Subsidiary] (a) any change in shareholding exceeding fteen per centum of the issued share capital; or (b) the acquisition by an existing shareholder of at least ve per centum additional shares, shall require the prior written consent of the Commission and the Commission shall notify the applicant of its acceptance or refusal stating the reasons for the refusal, within thirty days of receipt of the application for the consent.

(4) A notication of change in ownership, control or proportion of shares held in a licensee shall state (a) the date when the intended transfer of ownership or part thereof is to be effected; (b) the name and address of the acquirer; (c) the names, nationality and addresses of persons who are in control of the business; and (d) any change in the name or address of the business.

(5) In considering an application for a written consent for transfer of ownership or change of person in control or change in shareholding of a broadcasting licensee the Commission shall consider (a) the capacity of the acquiring entity to roll out the broadcasting services; (b) the nature of broadcasting services and programming that the acquiring entity intends to roll out; (c) the extent to which the allocated frequency resource(s) of the entity to be acquired have been utilized; (d) the possible impact on promotion of pluralism and diversity that the transfer may have; (e) the effect or impact of the transfer on competition or promotion of competition in the sector; (f) whether the transfer conformity with the stipulations of the sector policy; (g) the past and current compliance record, relating to the conditions of the current licences, of the acquiring and acquired entities,; and (h) any other matter as the Commission may consider relevant.

176 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (6) A broadcaster shall not lease or transfer broadcast frequencies or channels assigned to it to any other person without the written authority of the Commission.

Cap.

485A.

(8) For companies that are listed in the stock exchange, the Capital Markets Authority Act shall apply.

Part IIIBroadCastIng servICes Public broadcasting 11.

(1) A Public Broadcaster shall service.

(a) provide independent and impartial broadcasting services of information, education and entertainment in English and Kiswahili and such other languages as the broadcaster may decide; (b) conduct the broadcasting services impartially and consider to the interests and susceptibilities of the different communities in Kenya; (c) provide and receive from other persons material to be broadcast: Provided that in acquiring such material, the public broadcaster shall have regard to the need to maintain the distinctive character of the public broadcasting service and to cater for the expectations of audiences who are not generally catered for by other broadcasting services.

(2) The public broadcasting service shall be supported by revenues from the exchequer, grants, donations and its commercial services but shall not draw from advertising and sponsorship.

(3) The public broadcaster shall not lease or transfer the broadcast frequencies or channels assigned to it for use in public broadcasting.

(4) The Commission may, on application by the public broadcaster, grant the public broadcaster a licence to provide broadcasting services on a commercial basis.

(5) Where the public broadcaster is granted a licence to provide broadcasting services on a commercial basis, it may be required to maintain and keep separate accounts for its public and commercial broadcasting services.

(6) The public broadcaster may, when providing its commercial services, enter into public private partnership: Provided that the public private partnership complies with the law relating to public procurement.

(7) The Commission shall give priority and ensure equitable allocation of resources for the public broadcasting services.

Commercial free- Rev.

2011] Kenya Information and Communications CAP.

411A 177 12.

A commercial free-to-air broadcaster shall [Subsidiary] (a) be issued with a broadcasting service licence which includes the to-air broadcasting frequency or channel licence for each broadcast station that utilizes service.

a frequency or channel resource ; (b) provide a diverse range of programming that reects the identity, needs and aspirations of people in its broadcasting area; (c) where the commercial broadcaster provides national coverage, berequired, without prejudice to paragraph (a) and (b), to provide programming that reects the identity and needs of the people of Kenya; (d) commence broadcasts within twelve months after being issued with a licence; (e) not acquire exclusive rights for the non-commercial broadcast of national events identied to be of public interest as may be determined by the Commission from time to time; (2) The Commission shall, in consultation with the Minister in charge of information, license foreign commercial broadcasters, subject to availability of frequencies or channels.

13.

(1) A Community broadcaster shall Community (a) reect the needs of the people in the community including cultural, broadcasting services.

religious, language and demographic needs; (b) deal specically with community issues which are not normally dealt with by other broadcasting services covering the same area; and (c) be informational, educational and entertaining in nature; Provide a distinct broadcasting service that highlights community issues.

(2) The Commission shall, through the frequency plan, ensure that an equitable number of frequencies or channels are reserved for community broadcasting.

(3) A community broadcaster shall ensure all the funds generated from the operations of a community broadcasting station are reinvested in activities beneting the Community.

(4) The Commission shall monitor community broadcasters to ensure that the funds generated from operations of a community broadcasting station are re-invested in activities beneting the community.

(5) The Commission shall allow community broadcasting licensees to advertise, on their stations, adverts that are relevant and specic to that community within the broadcast area.

178 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] Subscription 14.

(1) The Commission may upon application, in the prescribed form, broadcasting grant a subscription broadcasting services licence for service licenses (a) satellite broadcasting services; and subscription management (b) cable broadcasting services; and services.

Corr.

2010.

(c) subscription Management services.

(2) The Commission may require a licensee granted a licence under paragraph (1) to (a) distribute broadcasting services, whether through cable or satellite within the borders of the Kenya or from Kenya to other territories; (b) provide a prescribed minimum number of Kenyan Broadcasting channels; (c) provide diversity in programming: Provided that a satellite subscription broadcasting service provider whose signal originates from outside Kenya and who wishes to provide their broadcasting services in Kenya shall have landing rights authorization from the Commission and be licensed as subscription service provider or provide their services through a subscription management service provider.

(3) The Commission may require licensee to offer subscription management services to provide the following services on behalf of a multi- channel satellite provider broadcasting from outside Kenya (a) subscription fee collection; (b) marketing and sales; (c) technical and installation support; (d) operation of a national call centre; (e) guarantees of quality of service and customer protection; and (f) any other services as the Commission may require.

(4) A subscription management services provider shall not enter into contractual arrangements with a foreign multi-channel satellite provider unless the foreign multi-channel satellite provider has landing rights in Kenya.

(5) A subscription management services licensee shall be required to have minimum local equity participation of twenty per centum.

Rev.

2011] Kenya Information and Communications CAP.

411A 179 [Subsidiary] 15.

(1) A person licensed to provide subscription broadcasting service or Obligations for subscription subscription management services shall provide a subscriber with information, broadcasting in writing, relating to the services licensees (a) products and services offered; and subscription management (b) cost of subscription including installation and maintenance; services.

(c) options of programming service available; (d) conditions under which the service is supplied; (e) instructions regarding to usage of the service in the ofcial languages; (f) number and allocation of channels carried on the system and the programming available on each channel; (g) billing and complaints procedures; (h) address and telephone number of the licensees business ofce.

(i) notice period of at least fourteen days to be given before effecting to any changes in the programming service or channel allocation, in writing.

(2) A person licensed to provide subscription broadcasting service or subscription management services shall provide means that parents or guardians may use to control access to broadcast content that is accessible and that they may consider inappropriate.

16.

(1) The Commission may upon application in the prescribed form Terrestrial digital grant a licence for the provision of terrestrial digital broadcasting signal broadcasting signal distribution services.

distribution services.

(2) The Commission may require a person granted a licence under paragraph (1) to (a) distribute on its digital platform free to air and subscription broadcasting services and related data on behalf of other licensed broadcasters; (b) submit to the Commission for approval any contractual agreements entered into with other licensed broadcasters for the distribution of broadcasting services prescribed under its license; (c) provide its services on such terms and conditions as to access, tariffs and quality of service as the Commission may prescribe.

(d) terminate the provision of services to a broadcaster within fourteen days of notication by the Commission.

180 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (3) A person granted a licence under this regulation may impose charges in respect of (a) any contractual arrangements entered into under paragraph (2); (b) reception of broadcastings services requiring conditional access; (c) the provision by of any apparatus or device enabling the reception of digital broadcasting services, including free-to-air broadcasting services.

(4) A person granted a licence under this regulation shall, in consultation with other broadcasters, prepare an electronic programme guide for audiences to use to access information relating to the schedules of programme materials for all broadcasting services it carries.

(5) A licensee shall ensure that an electronic programme guide prepared in paragraph (4) shall be user friendly and that its easy to navigate through programme materials which are the subject of a broadcasting service.

Other broadcasting 17.

The Commission may issue other broadcasting service licences as it services.

may nd necessary from time to time.

Part IvContent Minimum standards.

18.

Content prescribed in this part shall form the basis upon which the Commission or a recognized body of broadcasters shall prepare their respective progamme codes.

General 19.

(1) A licensee shall ensure that no broadcasts by its station: requirements.

(a) contains the use of offensive language, including profanity and Corr.

2010.

blasphemy; (b) presents sexual matters in an explicit and offensive manner; (c) glories violence or depicts violence in an offensive manner; (d) is likely to incite, perpetuate hatred, vilify any person or section of the community, on account of the race, ethnicity, nationality, gender, sexual preference, age, disability, religion or culture of that person or section of the community; or (e) has no program rating from Kenya Films Classication Board indicated prior to the commencement of such programs.

Protection of 20.

A licensee shall children.

(a) ensure that due care is exercised in order to avoid content that may disturb or be harmful to children, that has offensive language, Rev.

2011] Kenya Information and Communications CAP.

411A 181 [Subsidiary] explicit sexual or violent material, music with sexually explicit lyrics or lyrics which depict violence; (b) not broadcast programmes with the content specied in paragraph (a) during the watershed period; (c) request for permission to conduct an interview with a minor from the minors parents or guardian before conducting an interview with a minor.

21.

A licensee shall ensure that news and information are broadcast and News reporting.

Corr.

2010.

presented in a balanced manner, without prejudice or negligent departure from facts through distortion, exaggeration, misrepresentation and material omissions give fair reporting regardless of its context and importance.

22.

A licensee shall ensure that Unconrmed reporting.

(a) reports or broadcast from its station are based on fact and that Corr.

2010.

are not founded on opinion, rumour supposition, or allegation unless the broadcast is carried out in a manner that indicates these circumstances clearly; (b) it does not broadcast any report where there is sufcient reason to doubt its accuracy and it is not possible to verify the accuracy of the report before it is broadcast.

23.

A licensee shall broadcast correction of any factual error Correction of errors in reports.

(a) without reservation, as soon as it is reasonably possible after it has been established that there was an error; and (b) with such degree of prominence and timing and shall be broadcast during a similar time-slot as the original error as soon as is reasonably possible and where appropriate shall include an apology.

24.

A licensee shall endeavour to ensure that when broadcasting Reporting on controversial issues.

controversial issues of public interest during live broadcasts, (a) a wide range of views and opinions are represented.

(b) a person or organisation whose views on any controversial issues of public interest have been criticised during a broadcast, and who wishes to reply to such criticism is given an opportunity by the licensee to reply to such criticism within a reasonable time; (c) a reply to criticism under subparagraph (b) is given a similar degree of prominence and shall be broadcast on a similar time-slot, as soon as is reasonably possible.

Polling period.

25.

During a polling period, a licensee shall 182 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (a) provide equitable coverage and opportunities to registered political parties participating in an election and in particular to presidential candidates; (b) ensure that the name of the political party or sponsor, if any, on whose behalf a broadcast is made, is announced, immediately before the commencement and immediately after such broadcast; (c) permit any broadcast sponsored by or made on behalf of a political party other than an advertisement thereof to be dramatized; and (d) ensure that the employees of a licensee who wish to be candidates for any elective position(s) resign from their employment with the licensee during polling period.

Conduct of 26.

(1) A licensee shall ensure that any person who is to be interviewed interviews.

in any of the licensees broadcast is (a) advised of the subject of the interview; and (b) informed, before the interview takes place, to determine whether the interview is to be recorded or broadcast live.

(2) A licensee shall exercise sensitivity in conducting interviews with bereaved persons, survivors of traumatic incidents or witnesses thereof.

Commentaries.

27.

A licensee shall ensure that any commentaries that are broadcast by a licensee, whether as comments are made by the licensee or by any person invited by a licensee, are presented in a manner that clearly indicates that they are based on facts which are clearly stated.

Sexual offences.

28.

A licensee shall (a) not disclose, in a broadcast, the identity of a victim of a sexual offence unless such victim consents in writing to the disclosure of his or her identity.

(b) avoid the use of unnecessary or repetitive detail when broadcasting the circumstances of a sexual offence.

Consent to broadcast.

29.

A licensee shall not broadcast any information acquired from a person without that persons consent, unless the information so acquired is essential to establish the credibility and authority of a source, or where the information is clearly in the public interest.

Programme 30.

A licensee sponsorship.

Corr.

2010.

(a) shall not accept sponsorship of news broadcasts; (b) shall not accept sponsorship of weather broadcasts, nancial broadcasts or trafc reports: Rev.

2011] Kenya Information and Communications CAP.

411A 183 Provided that the licensee shall retain ultimate editorial control of the [Subsidiary] sponsored programme; (c) shall ensure that sponsorship of an informative programme does not compromise the accuracy and impartiality of the programmes contents; (d) shall not unreasonably discriminate against or favour a particular sponsor; (e) shall not broadcast any programme which has been sponsored by a political party save for an advertisement by a political party in which case the advert must be distinctly identied so as not to be confused with normal programming; (f) shall acknowledge the sponsorship of a programme immediately before and after the programme is broadcasted, and identify any connection between the programmes subject-matter and the sponsors commercial activities.

31.

(1) A licensee shall not broadcast an infomercial Infomercials.

(a) for a period exceeding three and half hours of the performance period in any day; (b) during prime-time; or (c) during any break in the transmission of a childrens programme.

(2) A licensee shall ensure, through visual or audio form, that the broadcast of any infomercial is distinguishable from any broadcast programme material.

(3) A licensee shall ensure that all infomercials that are broadcast by its station are lawful, honest, decent and conform with the principles of fair competition.

(4) The provisions of paragraphs (1) and (2) shall not apply to stations which exclusively broadcast infomercials.

32.

A licensee shall not knowingly pay any person involved in a crime Payment of or any person who has been convicted of a criminal offence, in order to obtain criminals.

information.

33.

(1) A licensee shall ensure that it only broadcasts advertisements Advertisements.

that are lawful, honest, decent and conform with the principles of fair competition.

(2) A licensee shall ensure that advertisements broadcast by its station do not (a) contain any descriptions, claims or other material which may, 184 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] directly or by implication, mislead members of the public in relation to the product or service advertised, or about its suitability for the purpose recommended; and (b) unfairly attack or discredit, directly or by implication, any other advertisers, products or advertisements.

(3) A licensee shall, before broadcasting an advertisement, ensure that any descriptions or claims in the advertisement have been adequately substantiated by the advertiser.

(4) A licensee shall not unreasonably discriminate against or favour any advertiser.

(5) A licensee shall exercise responsible judgment when scheduling advertisements that may be unsuitable for children during periods when large numbers of children are expected to be watching or listening to programmes.

(6) A licensee shall ensure that (a) any advertising breaks are clearly distinguishable from broadcast programmes; and (b) its presenters, when reading advertisements, make a clear distinction between the programming material and the advertisements they deliver.

Watershed period.

34.

(1) A licensee shall ensure that (a) content which depicts or contains scenes that are rated by the Kenya Film Classication Board as adult, or are of the language intended for adult audiences are not aired during the watershed period; (b) all programmes broadcast during the watershed period are suitable for family audiences and the transition from family-oriented to a more adult programming after the watershed period is gradual; (c) consumer advice such as warnings, labelling, classication details and other announcements are given prior to the telecast of a programme or its trailers.

(d) all trailers and promotional material shown before the watershed time comply with paragraph (b) and (c).

(2) All licensees shall exercise responsibility in scheduling of programmes to reduce the risk of causing offence.

Local content.

35.

(1) The Commission may require a licensee to commit the minimum amount of time, as may be specied in the licence, to broadcast of local content or as may be prescribed from time to time by the Commission by notice in the gazette: Rev.

2011] Kenya Information and Communications CAP.

411A 185 [Subsidiary] Provided that where a broadcaster is, unable to comply with the foregoing, the Commission shall require such broadcaster to pay such an amount of money, as may be prescribed by the Commission into the Fund.

(2) The Commission shall from time to time prescribe a minimum local content quota for foreign broadcasting stations that broadcast in Kenya.

36.

(1) the Commission shall require broadcasters to take specic steps to Content for promote the understanding and enjoyment of programmes transmitted through the physically its stations by persons who are physically challenged and in particular, persons challenged.

who are deaf or hard of hearing, or who are blind of partially sighted.

(2) The Commission shall prescribe by notice in the gazette the manner, time and percentage of programmes targeting persons referred to in paragraph (1) shall be broadcast.

Part vProgramme Code 37.

(1) The Commission shall prescribe a Programme Code that sets Setting standards for the standards for the time and manner of programmes to be broadcast by programmes.

licensees.

(2) A licensee shall be subject to the Programme Code prescribed by the Commission or by a duly recognized body of broadcasters under regulation 38.

38.

(1) Pursuant to section 46H of the Act, any registered body of Settings standards for broadcasters wishing to operate under its own Programme Code shall submit programmes.

such a code to the Commission for approval.

(2) A body of broadcasters referred to in paragraph (1) shall satisfy the Commission that all its members subscribe and adhere to the Programme Code that has been approved by the Commission.

(3) A licensee who subscribes to a Programme Code prescribed by a body of broadcasters under paragraph (1) shall furnish the Commission with proof of membership, subscription and adherence to the Programme Code prescribed by the body.

(4) When considering a Code submitted for approval, the Commission shall have regard to the specic standards to be complied with and rules and practices to be observed as prescribed in part IV of these regulations and such other matters as the Commission may prescribe from time to time.

(5) In the event that the Programme Code is not acceptable either in part or in whole (a) the Commission shall notify the body of broadcasters in writing and specify the remedial measures that the broadcasting body is to undertake in order to satisfy the Commissions requirements; and (b) the body of broadcasters shall within thirty days from the 186 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] date of notication resubmit the revised Programme Code for reconsideration by the Commission.

(6) Once the Commission approves the Programme Code submitted under this regulation, the body of broadcasters shall publish its Programme Code and a list of broadcasters subscribing to the code, and avail both the Programme Code and list to the public.

(7) The body of broadcasters shall (a) avail to the Commission such information relating to the enforcement of the Programme Code as the Commission may be require and in the form prescribed by the Commission; (b) inform the Commission within ve days if any of its members ceases to subscribe to the Programme Code of the body of broadcasters; (c) cause to be published in at least one newspaper circulating in Kenya a notice of the fact that the code is available for inspection by any member of the public.

(d) review or cause the revision of the Programme Codes and enforcement mechanisms at least once in every two years from the date of the Programme Code and mechanisms came into force; (e) le the reviewed programme code with the Commission for approval.

Part vIComPlaInts handlIng ProCedure Complaints handling 39.

(1) Every broadcaster shall develop a procedure, for handling procedure.

complaints from persons who may be aggrieved by its broadcasts.

(2) The complaints handling procedure, shall, among other things cover the following (a) full name of the broadcaster as it appears in the licence as well as the broadcast station identity specic to different broadcast services offered; (b) the physical postal and email addresses where complaints can be sent; (c) the contact person authorized to receive and handle complaints; (d) the manner in which the complaint may be lodged including the applicable languages; (e) details which need to be submitted when lodging a complaint; (f) the need for the complainant to retain a copy of every correspondence Rev.

2011] Kenya Information and Communications CAP.

411A 187 exchanged between complainant and broadcaster; [Subsidiary] (g) the manner in which the complaint shall be investigated and process of investigation; (3) In addition to the information under paragraph (2) the complaint handling procedure shall also include information (a) to listeners or viewers that the rst opportunity to resolve a complaint should be given to the broadcaster to resolve the complaint; (b) relating to the timeframes for responding to the complainant, and resolving the complaint; (c) relating to how complaints from physically challenged and illiterate consumers who are not capable of providing complaints in writing, shall be addressed; (d) on the methods of recording and tracking of complaints, together with the associated responses; (e) on the duration of storage of records of complaints received and actions taken; (f) on the retention and production of recordings of any programme which is the subject matter of a complaint; (g) on the categories of complaints which the broadcaster is under no obligation to respond to or complaints considered frivolous, vexatious or an abuse of the complaint process or from complainants who choose to remain anonymous.

(h) on any other matter as the Commission may from time to time by notice in the gazette prescribe.

40.

(1) A licensee shall Obligations of (a) document its complaints handling procedure; licensees.

(b) inform their listeners or viewers at least once a day of the existence of a complaints handling procedure and how they can lodge a complaint regarding the broadcast station; (c) not dispose off broadcast transcripts or recordings related to a complaint so long as it has not been summarily resolved either by the broadcaster, the Commission , the Tribunal or the High Court: Provided that the clause in the licence stipulating the minimum duration that a licensee shall retain a copy of recordings of broadcasts shall not apply to this subparagraph; and 188 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (d) on 1st July of every year, submit to the Commission a written report of all complaints received during the period and the manner in which they were addressed.

Approval of 41.

(1) Every broadcaster shall, prior to the commencement of Complaints Handling broadcasting services submit its Complaints Handling Procedure to the Procedure.

Commission for approval.

(2) In the event that the Commission does not approve the complaints handling procedure submitted under paragraph (1), in part or in whole (a) the Commission shall specify the remedial measures the broadcaster should take in order to satisfy the Commissions requirements; and (b) the broadcaster shall within thirty days of being notied of the disapproval, resubmit the revised complaints handling procedure for reconsideration by the Commission: Provided that in the interim, the Commission may require the broadcaster to handle any complaints submitted during that period in accordance with the procedure determined by the Commission.

(3) A broadcaster shall, after approval, publish its Complaints Handling Procedure and avail it to any person who reasonably requests.

Escalating 42.

(1) Where any person alleges that he has exhausted the broadcasters Complaints to the Commission.

complaints handling procedure and is not satised with the remedy offered or Corr.

2010.

action taken, he may appeal to the Commission and such appeal shall be dealt with in accordance with the Dispute Resolution Regulations or such procedures as may be prescribed by the Commission from time to time: Provided that the Commission may, on its own motion, investigate a matter where in its view a broadcaster has breached the provisions of the Act, Regulations or the Programme Code.

(2) A broadcaster or the Commission shall not entertain a complaint or dispute lodged pursuant to a broadcast after ninety days from the date when the material complained of was broadcast; Part vIIgeneral ProvIsIons Public emergencies.

43.

(1) All broadcasting service providers shall provide a public notice of an emergency or a public disaster announcement upon the request of a person authorized by the Government.

(2) The Commission shall prescribe, by notice in the gazette the manner in which broadcasters shall provide information during public emergencies or national disasters.

Offence and penalty.

44.

Any person who contravenes any provision of these Regulations Rev.

2011] Kenya Information and Communications CAP.

411A 189 [Subsidiary] commits an offence and is liable on conviction to a ne not exceeding one million shillings or to imprisonment for a term not exceeding three years, or both.

Part vIIItransItIonal ProvIsIons 45.

(1) The Commission shall specify the following, among other Transition from conditions, in a terrestrial digital signal distribution licence analogue to (a) the percentage of the multiplex capacity that shall be used for digital television relaying broadcast content and other related data; broadcasting.

(b) the technical specications of the multiplex and associated digital transmitters; (c) the requirement that the signal distributor to le such tariffs it proposes to impose on a broadcaster for approval by the Commission; and (d) universal service obligations.

(2) After the switchover from analog to digital broadcasting, all analog television broadcasters shall be required to relinquish the frequencies used for free-to-air television broadcasting to the Commission.

(3) Nothing in these Regulations shall be construed as preventing the Commission from requiring broadcasters on digital platform before the enactment of the Kenya Communications Amendment Act, 2009, to comply No.

1 of 2009.

with the Act and these Regulations.

46.

(1) Pursuant to section 46R of the Act, all persons issued with Transition of permits broadcast permits prior to the commencement of the Kenya Communications to licenses.

(Amendment) Act, 2009 shall No.

1 of 2009.

(a) be required to apply for broadcast licence(s) such as a manner as may be prescribed by the Commission; (b) pay such fees as may be prescribed by the Commission for the issuance of the broadcasting licence(s) to replace the permits and frequency licence and usage fees; (c) retain such radio frequency resources already assigned under the same terms and conditions of issuance: Provided that they comply with such new terms and conditions that the Commission may be impose; and (d) in the event of failing to apply or qualify for the licence(s), cease to be a broadcaster.

(2) In addition to the requirements specied under section 46D (2), the Commission shall, when considering an application for a licence to replace a 190 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] permit, consider (a) the past compliance record of the applicant relating to adherence to the conditions of the broadcasting frequency licence; and (b) the status of frequency fee payments.

(3) Any person who holds a broadcasting permit and who has been assigned more than one broadcast frequency for either radio or television broadcasting services in the same broadcast coverage area, shall be required within a period not exceeding the licence term, to surrender all additional broadcasting frequencies to the Commission.

Rev.

2011] Kenya Information and Communications CAP.

411A 191 THE KENYA INFORMATION AND COMMUNICATIONS [Subsidiary] (DISPUTE RESOLUTION) REGULATIONS, 2010 L.N.

26 /2010.

1.

These Regulations may be cited as the Kenya Information and Citation.

Communications (Dispute Resolution) Regulations, 2010.

2.

In these Regulations, unless the context otherwise requires Interpretation.

consumer any person who uses communication services or products offered by a licensee; dispute means any matter that is in contention between a licensee and another, a consumer and a licensee, where one or both parties is aggrieved by the conduct of the other and the parties have failed to reach an amicable resolution after due effort has been made; licensee means any person who has been licensed under the Act; 3.

The Commission shall have power to resolve disputes between- Powers of the (a) a consumer and a service provider; Commission.

(b) a service provider and another service provider; or (c) any other persons as may be prescribed under the Act.

(3) The Commission may, for the purpose of resolving any dispute hold hearings, inquiries and investigations, it considers appropriate in the discharge of its functions under the Act.

(4) The Commission shall not emphasize on technicalities or rules of procedure in resolving disputes led under these regulations and may waive any rule or requirement where necessary.

4.

(1) A party to a dispute may, within sixty days of the occurrence Initiation of of a dispute, notify the Commission and any adverse party of the dispute, in Proceedings.

writing.

Provided that where a notication is made orally or in any other form, the Commission may reduce the notication in writing and the Kenya Subsidiary Legislation, 2010 40 notication shall, if signed or attested by the complainant, be considered to be a written notication for the purposes of these Regulations.

(2) The Commission shall not seek to resolve a dispute under these Regulations unless it has been notied of the dispute in writing and has been requested by either of the party or both parties to intervene.

(3) A party shall notify the Commission of a dispute under paragraph (1) by the presenting to the Commission a letter or Memorandum of Complaint together with the prescribed fees.

192 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (4) The letter or Memorandum of Complaint shall set out concisely, the grounds of complaint and the facts upon which the complaint is based on, and shall be accompanied by documentary evidence supporting the complaint.

(5) The letter or Memorandum of Complaint shall be signed by the party presenting it if the party is an individual, and where the party is a corporation, by an agent or authorized ofcer of the corporation.

(6) The Commission shall acknowledge the receipt of a letter or Memorandum of Complaint, in writing.

(7) The Commission may decline to accept a letter or Memorandum of Complaint that (a) does not raise any issue, under the Act; (b) does not conform to the provisions of the Act or directions given by the Commission; (c) is trivial, frivolous or vexatious; (d) is defective or which is presented otherwise than in accordance with these Regulations or the directions of the Commission; or (e) has been led with any other authority or body that has jurisdiction to hear and determine the dispute.

(8) The Commission shall, before declining to accept a letter or Memorandum of Complaint, give the complainant an opportunity to be heard.

(9) The Commission shall not decline to resolve for the reason of defects in the pleadings or in the presentation, without giving an opportunity to the person ling the complaint to rectify the defects within the period the Commission specied for that purpose.

(10) Where the Commission has declined to resolve a dispute, it shall notify the parties to the dispute, in writing, stating the reasons for declining.

Response to the 5.

(1) Where the Commission accepts to resolve a dispute, it shall, Complaint.

within seven days of receiving a notication, notify the party against whom the complaint was made and serve the party with the letter or Memorandum of Complaint.

(2) The party against whom a complaint has been made shall, within twenty-one days after being notied of dispute under paragraph (1), le with the Commission and serve the complainant with, a response signed by that party, or where the party is a corporation by agent or authorized ofcial of the corporation.

Rev.

2011] Kenya Information and Communications CAP.

411A 193 [Subsidiary] (3) The Commission may invite the complainant to le a reply to the response within a specied time.

Withdrawal of 6.

(1) A complainant may, at any time before the dispute is heard, dispute.

withdraw the letter or Memorandum of Complaint by notifying the Commission, in writing.

(2) The Commission shall, where a complainant withdraws a letter or Memorandum of Complaint make such orders relating to costs as it considers t.

Hearing of disputes.

7.

(1) The Commission may, for the purpose of resolving a dispute, hold such hearings, inquiries and investigations, as it may consider appropriate.

(2) The Commission shall not place undue regard on technicalities or rules of procedure and may waive any such rule or requirement when it considers it appropriate.

(3) The parties to a dispute shall set the date for the hearing of a dispute within fteen days from the date of the ling of the last response or any reply to the response.

(4) Save where the parties otherwise agree, each party shall be entitled to not less than seven days notice of the time, date and place xed for the hearing of the dispute.

(5) The Commission may determine a dispute on the basis of the documents led by the parties or oral evidence given before it.

(6) Where the Commission considers it necessary or expedient, it may direct the parties to le written submissions upon such terms as the Commission considers t.

(7) Where in the course of resolving a dispute a matter arises that in the opinion of the Commission requires certain expertise or competence, the Commission may call upon any person who possesses the expertise to sit with the Commission as an assessor.

(8) At the hearing, the complainant shall open its case by stating the grounds of the complaint and may support it by relevant evidence.

(9) A party to a dispute shall, unless the party has the consent of the Commission, not rely on any grounds other than a grounds stated in the letter or Memorandum of Complaint or adduce additional facts or documents that were not referred to in the letter or memorandum of complaint or copies of the documents were not annexed to the letter or Memorandum of Complaint.

(10) The complainant shall close its case by making oral or written submissions and at the close of the complainants case, the party against whom a complaint has been made may make submissions supported by relevant evidence.

194 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (11) The complainant shall be entitled to reply to the submissions of the party against whom a complaint has been made and not raise new issues.

(12) The Commission may examine the parties and their witnesses when hearing a dispute.

(13) A witness called and examined by the either party may be cross- examined by the other party and after being cross-examined, the witness may be re-examined.

(14) The Commission may, at any time before making any orders relating to a dispute, require a party or any other person whom the Commission considers competent, to adduce documentary evidence or produce any material, specimen or product that the Commission may consider necessary for the determination of a dispute.

(15) The Commission may adjourn the hearing of a dispute for the production of further evidence or for other good cause, on such terms as it may determine.

(16) Where on the date of hearing any of the parties or their authorized representative does not appear when the dispute is called for hearing, the Commission may dismiss the dispute for non-appearance or proceed ex parte.

(17) Where a dispute is dismissed in default or decided ex-parte an aggrieved party may le an application within fourteen days from the date of such dismissal, for review of the order given, and the Commission may review the order if it is satised that there was sufcient cause for the non- appearance.

(18) No party to a dispute shall communicate, outside the hearing of the matter, with any member of the Commission with regard to matters or issues which are the subject matter of the dispute.

Decision of the 8.

(1) The Commission shall make its decision in writing, stating Commission.

reasons for the decision, within thirty days from the date of conclusion of the hearing.

(2) The decision of the Commission shall be dated and signed by the members of the Commission who participated in the hearing and determination of the dispute.

(3) The Commission shall cause to be made a record of the proceedings of the hearing of the dispute and include that record, together with a copy of the decision, in a document to be certied and signed by the presiding ofcer of the Commission as a true and correct record of the proceedings and the decision.

(4) The Commission shall forward a certied copy of the document described in paragraph (3) to each party.

(5) The Commission may, given the urgency of a dispute or for other Rev.

2011] Kenya Information and Communications CAP.

411A 195 [Subsidiary] justiable reason, issue temporary preservation orders and reliefs pending the hearing and determination of the dispute.

(6) Any party dissatised by the decision of the Commission may Appeal to the Appeals Tribunal established under Section 102 of the Act within fteen days of the decision.

(7) The decision of the Commission shall be binding until subsequent orders are made by the Tribunal or the determination of the Appeal.

9.

(1) The Commission may on application by either party, extend General Provisions.

the time appointed by these rules for the performance of any act or taking of any proceedings upon such terms or conditions, if any, as may appear to the Commission to be just and expedient General Provisions.

(2) Records of proceedings, except those parts which for reasons specied by the Commission are condential or privileged or otherwise should not to be disclosed to any person, shall be open to inspection by any person after conclusion of the hearing, subject to such person complying with the terms as the Commission may prescribe from time in regard to time, place and manner of inspection and payment of inspection fees.

(3) The Commission may publish in the Kenya Gazette and other media, its decision on disputes it has heard and determined.

(4) Nothing in these Regulations shall prevent the parties from reaching an agreement and withdrawing the dispute by submitting the negotiated agreement to the Commission for approval.

(5) The Commission may make orders relating to costs as it considers appropriate.

196 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] THE KENYA INFORMATION AND COMMUNICATIONS L.N.

27/2010, (TARIFF) REGULATIONS, 2010 L.N.

149/2010.

Citation.

1.

These Regulations may be cited as the Kenya Information and Communications (Tariff) Regulations, 2010.

Interpretation.

2.

In these Regulations, unless the context otherwise requires information and communications technology service means any transmission of information by wire, radio waves, optical media, postal or other means between or amongst points of users choice; just and reasonable tariffs means tariffs that enable a licensee to maintain its nancial integrity, attract capital, operate efciently and fully compensate investors for risks borne; licensee means a person licensed under the Act; promotion or special offer means any information, whose content is controlled directly or indirectly by a licensee, that is expressed in any language and communicated through any medium with the intention of inuencing the choice, opinion or behaviour of consumers; tariff means any charge, price, levy and underlying terms and conditions imposed by a licensee for the services provided; regulated services means a service offered or supplied by a licensee (a) in a market or market segment that is uncompetitive or (b) subject to price controls by the Commission on the basis that the provider of the service has been found to be dominant in the relevant market and the Commission has judged that the price control is appropriate, pursuant to both the Kenya Information and L.N.

29/2010.

Communications (Fair Competition and Equality of Treatment) Regulations, 2010 and regulation 4 of these Regulations.

uncompetitive market means market or market segment in which there is no competition in the provision of service or in which consumer choice of service provider or service is either absent, limited, impeded, obstructed or constrained.

Purpose and object.

3.

(1) The purpose of these Regulations is to provide a framework for L.N.

149/2010.

the determination of tariffs and tariff structures.

(2) Without prejudice to the generality of paragraph (1), these Regulations seek to (a) ensure licensees maintain nancial integrity and attract capital; (b) protect interests of investors, consumers and other stakeholders; Rev.

2011] Kenya Information and Communications CAP.

411A 197 (c) provide market incentives for licensees to operate efciently; [Subsidiary] and (d) promote efcient and fair competition within the framework for a free market economy; (e) ensure compliance with all competition laws.

(3) In the exercise of its powers, the Commission shall ensure that decisions made pursuant to the provisions of these Regulations are consistent with the objectives outlined in paragraph (2).

Commission to 3A.

(1) The Commission may declare services in specic markets to be declare regulated regulated services.

services.

L.N.

149/2010.

(1) (2) The Commission shall, prior to making a declaration under paragraph (a) identify the relevant specic market; (b) notify all affected licensees and issue a consultation, allowing sufcient time for stakeholder comments; (c) demonstrate that there is a competition concern as specied in regulation 8A(2) of the Kenya Information and Communication L.N.

29/2010.

(Fair Competition and Equality of Treatment) Regulations, 2010, or that a licensee who has been declared to be in a dominant market position has been found to have abused the dominant market position, and where there is a competition concern, the Commission shall, in satisfying itself, demonstrate pursuant to a report prepared by the Commission that (i) effective competition amongst existing licensees cannot develop; (ii) there exists strong and non-transitory barriers to entry in the identied market segment; (iii) there is no other competition law that is sufcient to deal with the competition concern; (iv) in the case of a retail service, no wholesale remedies are avail- able to address the competition concern in the identied market segment; and (v) such other circumstances that the Commission may consider necessary from time to time; (d) follow the guidelines contained in the Schedule to these Regulations to prepare the report mentioned in paragraph (2) (c); (e) show that declaring the relevant service to be a regulated service 198 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] would prevent a potential abuse; and (f) show that the declaration would be consistent with the objectives of these Regulations.

Tariffs setting.

4.

(1) A licensee shall set tariffs that are L.N.

149/2010.

(a) just and reasonable; (b) sufciently clear and enable the end-user to determine the description of the service, the details relating to the nature of service and charges payable for the service.

(c) (Deleted by L.N.

149/2010.).

(2) A licensee shall provide accurate billing information on tariffs to enable customers to verify whether they are billed correctly.

(3) A licensee shall not apply tariffs that prevent market entry or distort competition.

(4) A licensee who contravenes this regulation commits an offence.

(5) The tariff of a licensee shall be non-discriminatory and shall guarantee equality of treatment.

(6) A tariff shall not be in breach of this regulation if it is shown that there are legitimate commercial reasons for the tariff, such as different costs of providing the service and different identiable market segments that have different ability to pay and different levels of usage and customer preference.

Filing of tariff rates.

5.

(1) A licensee shall, on a quarterly basis, le the schedules of their tariff rates, including those of its agents and correspondents with the Commission.

(2) A licensee shall not charge its customers using tariff rates that have not been led with the Commission under paragraph (1).

(3) A licensee shall ensure that all the tariff rates that have been led with the Commission are available to the public for review and inspection and shall furnish its customers with the led tariff rates, upon request.

(4) A licensee who contravenes this regulation commits an offence.

Tariff approval for 6.

(1) The Commission may from time to time publish in the Gazette a regulated services.

schedule of regulated services.

L.N.

149/2010.

(2) A licensee shall charge regulated services using tariffs that have been le and approved by the Commission.

(3) Subject to regulation 7 all applications for approval of tariffs for regulated services shall be led with the Commission and shall Rev.

2011] Kenya Information and Communications CAP.

411A 199 [Subsidiary] (a) conform to the form, manner and methodology prescribed by the Commission; and (b) be accompanied by relevant documents, including all calculations, notes and any other information in support of the application.

(4) Where the Commission does not approve the tariffs proposed by a licensee for a regulated service and recommends that the licensee to makes the adjustments specied to the proposed tariffs, the licensee shall adjust the proposed tariff accordingly.

(5) (Deleted by L.N.

149/2010.).

(6) A licensee shall not discontinue the provision of a regulated service without the prior written approval of the Commission.

(7) Where the Commission determines that a service no longer meets the conditions that describe a regulated service, the Commission shall through a gazette notice notify the public that the service is no longer a regulated service.

(8) (Deleted by L.N.

149/2010.).

(9) A licensee who contravenes this Regulation commits an offence.

7.

(1) A licensee who wishes to increase the tariffs for a regulated service Review of tariffs for shall le an application for approval of the increase with the Commission in regulated services.

the prescribed manner, at least forty-ve days before the proposed increase is intended to come into effect.

(2) The obligations that relate to the provision of a regulated service L.N.

149/2010.

shall cease when the Commission determines that tariff regulation is no longer necessary in view of market developments.

8.

(1) The Commission shall, within seven days after receiving an Notice on review of application to increase the tariff of a regulated service under these Regulations, tariffs for regulated place a notice in the Gazette and in such other manner as it considers necessary.

services.

(2) The notice under paragraph (1) shall L.N.

149/2010.

(a) contain the name and particulars of the licensee or class of licensees providing the service to which the tariffs relates; (b) state the new tariff and the reasons for the proposed review of the tariff; and (c) specify the period, which shall not be less than thirty days, within which written objections or representations to the proposed new tariff may be made.

(3) The Commission shall in considering the application for tariff revision take into account any written representations or objections received 200 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] under paragraph (2) (c).

Decision on tariff 9.

(1) The Commission shall, within thirty days of notication under revision application.

regulation 8 (1), approve or reject such application.

L.N.

149/2010.

(2) The Commission may reject an application for the revision of a tariff if it is of the view that the proposed tariff is unjustiable, unfair or unreasonable.

(3) A decision of the Commission rejecting a proposed tariff shall- (a) be in writing; (b) state the reasons for the rejection; and (c) be made available to the provider.

(4) Where the Commission approves a new tariff, a licensee shall notify its customers of the new tariff through publication in two local daily newspapers with nation wide circulation or through any other method as the Commission may determine and shall in the notice provide for a grace period of not less than fourteen days before implementing the new tariff.

(5) A licensee who contravenes this Regulation commits an offence.

Investigation of 10.

(1) The Commission may on its own motion or pursuant to a tariffs.

complaint made under this regulation investigate any tariff set by a licensee L.N.

149/2010.

where the tariff is anti-competitive.

(2) A complaint about a tariff brought under paragraph (1) shall (a) be in writing; (b) specify the name and address of the complainant; (c) state the interest of the complainant; and (d) state the reasons why the tariff should be investigated.

(3) Where after investigations under regulation 10 (1), the Commission is of the view that the tariff is anti- competitive and should be adjusted, it may recommend to the licensee to make the necessary adjustments on the tariffs.

Provided that where the Commission intends to adjust the tariffs after investigation, the Commission shall notify the licensee and give the licensee twenty days to respond to the intended adjustment.

Promotions and 11.

(1) The Commission may from time to time issue guidelines on special offers.

promotions and special offers.

L.N.

149/2010.

(2) A licensee shall apply for approval, at least four days before the date of the implementation of a promotion or special offer, and shall le all details Rev.

2011] Kenya Information and Communications CAP.

411A 201 of the promotion or special offer with the Commission for approval provided [Subsidiary] that if no objection is made by the Commission within four days the licensee shall proceed with the promotion or special offer.

(3) A licensee shall ensure that all Promotions and special offers (a) provide of information on the duration and date of the promotion or special offer, where the same is time-bound; Provided that no promotion or special offer shall run for more than ninety days and be repeated before three months have elapsed.

(b) state clearly the threshold to be applied, where the duration of the promotion or special offer is not time-bound, but subject to attainment of a specic target; (c) provide the terms and conditions and the details of the manner of participation; (d) provide clear information to its customers on the terms and conditions of the promotion or special offer, through publication in two local daily newspapers with nationwide circulation and where applicable, in electronic media, sign language or any other method that the Commission may determine; (e) indicate and publish, where the special offer or promotion requires the customer to pay a charge, the applicable rate; (f) has obtained necessary approval from the Betting Control and Licensing Board, where the special offer or promotion involves games of chance, and inform its consumers accordingly; (g) provide details on the minimum number and nature of any prizes, where applicable, state if prizes are to be awarded in installments or are to be shared among recipients; (h) state whether or not any restrictions based on, among others, age or the need to obtain permission to enter from an adult or employer, to participation apply; (i) provide the name and business address of the licensee in the case of direct promotions or, particulars of third parties in the case of indirect promotions; (j) promoters do not overstate the consumers chances of winning prizes; and (k) a not discriminatory or anti-competitive.

(4) Prior to the launch of a promotion or a special offer a licensee shall submit a statement of compliance with paragraph (3) to the Commission.

202 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (5) The Commission may discontinue a promotion or special offer that does not comply with this regulation and state the reasons for doing so.

Offence and penalty.

12.

Any person who commits an offence under these Regulations for which no penalty is provided shall on conviction be liable to a ne not exceeding one million shillings or to imprisonment for a term not exceeding three years or both.

Transitional 13.

(1) Subject to paragraph (2) a licensee who provides a regulated provisions.

service shall, within thirty days of these Regulations coming into force or the commencement of the offer of a regulated service to the public, le the tariff applicable to the regulated service with the Commission for approval.

(2) A licensee who provides regulated services at the commencement of these Regulations shall continue to provide the regulated services at the rate and subject to the terms and conditions in effect ate that date.

(3) A licensee who provides non-regulated services shall, within thirty days of the commencement of these Regulations, le schedulesof their tariff rates, including the terms and conditions of their agents and correspondents with the Commission.

Rev.

2011] Kenya Information and Communications CAP.

411A 203 SCHEDULE (r.

3A (2) (d)) [Subsidiary] L.N.

149/2010.

GUIDELINES Guidelines to Address Regulation 3A (2) (c) (i) When considering whether competition cannot develop with existing players under Regulation 3A(c)(i) of these Regulations, the Commission shall consider the following factors (a) Current market shares and their evolution over time; (b) Price trends and pricing behaviour for the services under analysis; (c) Control of an infrastructure non easily duplicated; (d) Barriers to expansion; (e) Product or service diversication; or (f) such other factors as the Commission may consider from time to time.

Guidelines to Address Regulation 3A (2)(c) (ii) The Commission shall consider all the factors indicated below in order to assess the existence of high and non-transitory barriers to entry under Regulation 3A(c) (ii) of the Regulations: (a) Existence of sunk costs; (b) Scale and scope economies; (c) Control of an infrastructure not easily duplicated; (d) Technological advantages; (e) Easy or privileged access to capital or nancial resources; (f) Barriers to development of distribution and sales network; (g) Switching costs and product diversication; (h) Vertical integration; (i) Requirement for an administrative authorization or licence in order to operate in the market and conditions for obtaining such an authorization; (j) Limits and conditions attached to the use of spectrum; 204 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (k) Effects of general regulation over new entrants.

Guidelines to Address Regulation 3A (2) (c) (iii) The commission shall consider all the factors indicated below in order to assess the insufciency of competition law to address the competition concern identied in sub-regulations 4 (c), condition 3A (2) (c) of these Regulations.

(a) Degree of generalization of non-competitive behaviour associated to the competition concern; (b) Degree of difculty to address the competition concern; (c) Expected damaged created by non-competitive behaviour associated to the competition concern; (d) Need of regulatory intervention to ensure the accomplishment of the objectives stated in Regulation 3(2).

Guidelines to address Regulation 3A(2)(c) (iv) When considering a retail service, the Commission shall consider whether the identied competition concern can be addressed with (a) existing remedies imposed in related wholesale markets; or (b) alternative wholesale remedies.

The analysis of the alternative measures shall consider the costs and benets associated with each option and the impact for the different undertakings, following a Regulatory Impact Assessment (RIA).

Rev.

2011] Kenya Information and Communications CAP.

411A 205 THE KENYA INFORMATION AND COMMUNICATIONS [Subsidiary] (COMPLIANCE MONITORING, INSPECTIONS AND L.N.

28/2010.

ENFORCEMENT) REGULATIONS, 2010 1.

These Regulations may be cited as the Kenya Information and Citation.

Communications (Compliance Monitoring, Inspections and Enforcement) Regulations, 2010.

2.

In these Regulations, unless the context otherwise requires Interpretation.

contravention means, non-compliance with or breach of any of the conditions of a licence and the provisions of the Act or Regulations; enforcement includes administrative actions of the Commission and any other action taken for the purposes of ensuring compliance with of the Act or Regulations; licensee means any person licensed under the Act; monitoring means the powers of the Commission to verify compliance with the provisions of the Act, Regulations and Licenses.

3.

The Commission shall monitor and enforce compliance with the Act, Commissions Regulations and conditions of licences by all licensees.

monitoring and enforcement powers.

4.

The Commission shall issue guidelines on installation and maintenance Guidelines.

of communication infrastructure.

5.

When carrying out its compliance, monitoring and enforcement duties, Principles and the Commission procedures of (a) shall be guided by the Act, Regulations and the following monitoring and principles enforcement.

(i) transparency, fairness and non-discrimination; (ii) the need to provide modern, qualitative, affordable and readily available communications systems and services in Kenya; (iii) the need to promote fair competition and investment in the information and communications technology industry; (iv) the need to promote and improve the quality of service provided by licensees in Kenya; and (v) any other principles that the Commission may from time to time consider necessary and in the public interest; (b) may issue directions in writing to any person to secure compliance with the Act and these Regulations; 206 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (c) may enlist and rely on the assistance of law enforcement agencies and other relevant departments, ministries and Government of Kenya and international agencies, as provided in the Act; and (d) may appoint a person to inquire into and report to the Commission on any matter pending before it and upon the receipt of a report the Commission may (i) give directions on the procedures for conducting such inquiries ;and (ii) the person or persons appointed to carry out such inquiries shall submit a report to the Commission in the form and manner as the Commission may direct.

Commencement of 6.

(1) The Commission shall exercise its powers under these the processes for Regulations monitoring and (a) on its own initiative; or enforcement.

(b) in response to a complaint made by a person or on behalf of a person whom the Commission considers to have an interest in the matter which is the subject of representation.

Licensees duty to 7.

(1) Every licensee shall, after every quarter and at the end of its nancial year, prepare and submit to the Commission in the prescribed form, prepare, submit and an annual report of its operations.

maintain reports.

(2) Every licensee shall prepare and submit to the Commission a quarterly report of its operations and the extent to which the conditions of their licence have been adhered to.

(3) A licensee may request the Commission to treat any information contained in a report presented to the Commission under these Regulations as condential business information that may not be disclosed to third parties other than government agencies.

Investigations by the 8.

(1) The Commission may commence investigations on a licensees Commission.

compliance where it has reasonable cause to believe that a licensee has failed to comply (a) with the construction, installation or service provision requirements issued by the Commission; or (b) has contravened any condition of the licence issued by the Commission; or (c) with any of the performance obligations under the Act, Regulations or its licence conditions.

(2) The Commission, shall in carrying out investigations on any matter Rev.

2011] Kenya Information and Communications CAP.

411A 207 [Subsidiary] under the Act or Regulations, take into account the following factors- (a) any representation made to the Commission by or on behalf of a person whom the Commission considers to have an interest in the matter which is the subject of the representation; or (b) a complaint by any customer of the licensee or a member of the public to the Commission in relating to the services provided by a licensee; and (c) the Commissions necessary inquiries and appropriate measures to be taken as the circumstances of the case may require.

(3) A licensee shall keep proper records in such manner as the Commission may prescribe, and shall allow the Commission to access the records for purposes of carrying out its mandate under the Act.

(4) The Commission may request a licensee to periodically submit reports, statistics, data and any other information that it considers necessary.

(5) When making any request under paragraph (4), the Commission shall ensure that it does not impose undue burden on the licensee in procuring and furnishing such information.

(6) The Commission may from time to time publish compliance or investigation reports in the Gazette, as is necessary.

9.

(1) Where after an investigation by the Commission, on its own motion Compliance or subsequent to a complaint made by a third party, the Commission is satised information.

that a licensee is contravening or has contravened any of the conditions of a licence, the Commission shallnotify the licensee, in writing.

(2) The Commission shall, in the notication sent to a licensee under paragraph (1), specify the acts or omissions which, in its opinion, constitute a contravention of the conditions of the licence and require the licensee to remedy the contravention within, unless otherwise specied by the Commission in writing, a period of three months.

(3) A licensee shall, after remedying the contravention specied in the notication, prove to the Commission that it has sustainably remedied of the contravention.

(4) If a licensee fails, without reasonable cause, to remedy the contravention referred to in paragraph (1) within the required period, the licensee shall be liable to a penalty of ve hundred thousand shillings and such penalty shall be a debt owed to the Commission and recoverable summarily.

(3) Any licensee aggrieved by the decision of the Commission made under these Regulations may appeal to the Tribunal within fteen days of receipt of notication by the Commission in that regard.

208 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] 10.

(1) Any penalty imposed by the Commission pursuant to the Act or Payment of penalty.

Regulations shall become due and payable by the contravening person within fourteen days from the date of receipt of the notication in that regard by the Commission to the contravening person.

(2) The Commission may in addition to the penalty impose any other enforcement sanctions under the Act or Regulations on a licensee.

Appointment of 11.

(1) The Commission may appoint inspectors for the purposes of Inspectors.

verifying compliance with the provisions of the Act and Regulations.

(2) The Commission shall issue all inspectors appointed under these Regulations with identity cards which shall be produced by the inspectors at the request of any person in charge of any place that is to be inspected.

(3) An inspector may at all reasonable times enter into any premises owned or controlled by a licensee in which the inspector has reasonable grounds to believe that has any document, information, or apparatus relevant for ensuring compliance with the Act or these Regulations and to examine such document, information or apparatus or remove the document, information or apparatus for examination or reproduction as the case may be.

(4) Where an inspector has reason to believe that there is any communication equipment or interference causing apparatus, he may examine such equipment, apparatus, logs, books, reports, data, records, documents or other papers and remove such information, document, apparatus, or equipment for examination or reproduction.

(5) An inspector shall record and sign for any information, document, article, apparatus or equipment removed by him or her and shall leave a copy of the document recording that removal.

(6) For the purpose of exercising, performing and discharging the powers, functions or duties of the Commission under the Act or these Regulations an inspector, may by notice in writing require any person to- (a) furnish him or her within such time and at such place as may be specied in the notice, any document specied or described in the notice which is in the custody or control of such a person; (b) produce for inspection any book, return, account or record in his possession or control; or (c) produce for inspection any equipment, apparatus or systems.

(7) Any person who wilfully obstructs an inspector in the performance of his duties commits an offence and is liable on conviction to a ne not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding one year or both.

Right of Access.

12.

(1) All licensees and authorized persons shall allow inspectors to access their facilities at reasonable times for the purpose of enabling the Rev.

2011] Kenya Information and Communications CAP.

411A 209 [Subsidiary] inspectors to carry out inspection and verication, including visits to premises and facilities and the inspection of equipment and documents.

(2) An inspector shall not have the authority to compel any person, for any reason, to produce any document which he could not be compelled to produce in any civil proceedings.

13.

Without prejudice to the provisions of the Act or Regulations, the Civil Proceedings.

Commission may, in the exercise of its powers pursuant to thisRegulations and the Act, institute civil proceedings against any person for remedies that may include injunctive relief, recovery of penalties, specic performance or pecuniary awards or damages.

14.

Part XII of the Kenya Communication Regulations 2001 is hereby Revocation of Part revoked.

XII of LN 68 of 2001.

210 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] THE KENYA INFORMATION AND COMMUNICATIONS L.N.

29/2010.

(FAIR COMPETITION AND EQUALITY OF TREATMENT) REGULATIONS, 2010 Citation.

1.

These Regulations may be cited as the Kenya Information and Communications (Fair Competition and Equality of Treatment) Regulations, 2010.

Interpretation.

2.

In these Regulations unless the context otherwise requires L.N.

150/2010.

communications services means all services provided for under the Act; licensee means a person licensed under the Act; service agreement means any agreement between a licensee and a subscriber relating to provision and use of a communications service; subscriber means a person who has entered into a service agreement with a licensee and who is responsible for payment of all charges and rentals.

Purpose and object.

3.

(1) The purpose of these Regulations is to L.N.

150/2010.

(a) provide a regulatory framework for the promotion of fair competition and equal treatment in the communications sector; and (b) protect against the abuse of market power or other anticompetitive practices within the communications sector.

(2) Without prejudice to the generality of paragraph (1), these Regulations seek to- (a) provide for the standards and procedures to be applied by the Commission in determining whether particular conduct is anti- competitive; (b) clarify the agreements, conduct or practices that the Commission shall consider to be anti- competitive, and prohibited under the Act; and (c) provide for the standards and processes that the Commission shall apply when determining whether a communications licensee is dominant in a given market.

Mandate of the 4.

(1) The Commission shall have the power to determine, pronounce Commission over upon, administer and enforce compliance of all its licensees with competition competition matters.

laws and regulations, that it relate to commercial activities in the communications sector.

(2) In so far as such matters fall concurrently under the jurisdiction of another statutory agency responsible for competition matters, the Commission shall co-operate with the said agency in matters related to fair competition.

Rev.

2011] Kenya Information and Communications CAP.

411A 211 [Subsidiary] 5.

(1) The Commission shall, in order to determine whether a particular Determination of agreement or conduct breaches these Regulations breach.

(a) evaluate the relevant market or market segment that the agreement, L.N.

150/2010.

conduct in question or practice relates; (b) determine whether the market or market segment is competitive; and (c) establish whether a licensee is engaging in anti-competitive practices.

6.

(1) The Commission shall, from time to time, by notice in the Gazette Commission to designate communications market segments.

designate market segments.

(2) The Commission shall, when evaluating or designating the relevant L.N.

150/2010.

market segments, consider (a) the communications products that constitute a specic market, whose product dimension shall be assessed by analyzing (i) demand-side substitutability in order to measure the extent to which consumers are prepared or able to substitute other communications products or services for the communications products or services subject to considerations at low cost; (ii) supply-side substitutability to determine the extent to which suppliers are able to supply other communications products or services in place of the communications products or services subject to consideration at low cost; (b) the geographic scope of the market for a given group of consumers, considering the following conditions (i) the geographic distribution of, and evolution over time of market shares; (ii) the pricing of services across the area under consideration; (iii) pricing of the different operators as well as its evolution over time in the relevant areas; and (iv) additional supply and demand characteristics which may indi- cate the existence of different competitive pressures; (c) any other factors or issues which are, in the opinion of the Commission, relevant.

Dominant market 7.

(1) The Commission shall from time to time develop and publish, position.

in the Kenya Gazette, guidelines to be followed when determining whether a 212 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] L.N.

150/2010.

licensee in a dominant market position in a specic communications market.

(2) The criteria shall among others include (a) the current degree and development of market concentration or the market share of the licensee, determined by reference to revenues, numbers of subscribers or volumes of sales; (b) the degree to which a licensees prices vary over time; (c) the ability of the licensee to maintain or erect barriers to entry to the market, including, by means of control of essential facilities, access to superior technology, privileged access to resources or capital markets or superior buying or negotiating position, amongst others; (d) the ability of the licensee to earn supernormal prots; (e) the global technology and commercial trends affecting market power; (f) the licensees power to make independent rate setting decisions; (g) the degree of product or service differentiation and sales promotion in the market; (h) the ability to materially raise prices without suffering a commensurate loss in service demand to other licensees; and (i) any other matters which the Commission may consider relevant.

Dominant market 8.

(1) The Commission may on its own motion or on the application of an power reports.

interested person, prepare a dominant market power report to determine whether L.N.

150/2010.

a license dominant in a service or geographic communications markets.

(2) The Commission shall, among other factors, use the criteria in regulations 6 (2) and 7(2) when assessing or designating a communications market.

(3) The Commission may, where it determines in a dominant market report that a licensee is dominant by considering the criteria established in regulation 7 (2), it shall declare that licensee as dominant in a specic communications market.

(4) The Commission may, on its own motion or pursuant to an application by a licensee, review the dominant market power report to determine whether a licensee is still dominant and shall within, twenty-one days, make a determination that the licensee is not dominant or that the licensee shall continue to be designated as dominant.

Investigations 8A.

(1) The Commission may, on its own motion or pursuant to a Rev.

2011] Kenya Information and Communications CAP.

411A 213 [Subsidiary] complaint made by a licensee, conduct an investigation to determine if the in respect of conduct of a communications licensee gives rise to a competition concern competition under paragraph (2).

concerns.

(2) Competition concerns shall arise where there is a likelihood that a licensee will engage in any of the following practices (a) directly or indirectly impose purchase or selling prices or other trading conditions that unfairly prevent, restrict or distort competition; (b) limit production, markets or technical development to the prejudice of consumers and other licensees; (c) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) maketheconclusionofcontractssubjectto acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts; and (e) any other practices that the Commission may determine from time to time.

(3) Where the Commission determines that there is a competition concern, it may impose appropriate and proportionate remedies in accordance with regulation 9.

Interconnection 9.

(1) Where the Commission has, pursuant to paragraph 8A, found a obligations of a competition concern, the Commission may impose any or all of the following dominant remedies telecommunications (a) meet all reasonable requests for access to its public service provider.

L.N.

150/2010.

telecommunications network, in particular access at any technically feasible point on its telecommunications network; (b) adhere to the principle of non-discrimination with regard to interconnection offered to other interconnecting licensees, particularly (i) apply similar conditions in similar circumstances to intercon- necting licensees providing similar services and (ii) provide interconnection facilities and information to other telecommunications licensees under the same conditions and of the same quality as it provides for its own services or those of its afliates or subsidiaries; (c) make available, on request, to other interconnecting licensees considering interconnection with its public telecommunications network, all information and specications reasonably necessary, in 214 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] order to facilitate conclusion of an agreement for interconnection, including information on changes planned for implementation within the next six months, unless provided otherwise by the Commission; (d) submit to the Commission for approval and publish a Reference Interconnection Offer, sufciently unbundled, giving the description of the interconnection offerings broken down into components according to the market needs and the associated terms and conditions including tariffs; and (e) provide access to the technical standards and specications of its telecommunications network with which another interconnecting licensee shall be interconnected.

(2) Where a dominant telecommunications service provider abuses its position when negotiating interconnection agreements, the Commission shall (a) require the dominant telecommunications service provider to desist, change its conduct or adopt a particular conduct; or (b) declare the interconnection agreement wholly or partially invalid.

(3) The Commission shall, before taking the action in paragraph (2) (b) of this Regulation, request the dominant telecommunications service provider to refrain from the conduct that is inconsistent withthese regulations.

(4) A dominant telecommunications service provider shall set charges for interconnection based on an objective criteria, observe the principles of transparency and cost orientation as set out in Regulation 11.

(5) The Commission may request the dominant telecommunications service provider to prove that its interconnection charges are based on actual cost and, where necessary request an adjustment of the charges or impose default interconnection charges in the event the proposed adjustment is not implemented by the dominant telecommunications service provider.

(6) A licensee that has been declared dominant in a market segment shall (a) notify the Commission in writing of any proposal to change interconnection charges in the form and manner as prescribed by the Commission from time to time; (b) sufciently unbundle charges for interconnection, so that the telecommunications licensee requesting the interconnection is not required to pay for any item that is not related to the service requested; (c) maintain a cost accounting system that Rev.

2011] Kenya Information and Communications CAP.

411A 215 [Subsidiary] (i) complies with the cost accounting guidelines that may be pub- lished by the Commission from time to time; (ii) demonstrates that its charges for interconnection have been fairly and properly calculated; (d) avail to the Commission, on request, a description of its cost accounting system showing the main categories under which costs are grouped and the guidelines for allocation of costs to interconnection and the Commissions, or any other competent body; regulations or guidelines have been adhered to.

(7) A dominant telecommunications service provider shall promptly, on request supply nancial information to the Commission to the level of detail specied by the Commission.

(8) The Commission shall upon satisfying that the dominant telecommunications service provider has fully complied with theseregulations together with any other guidelines that it may have prescribed, publish a compliance report.

(9) In addition, the Commission while taking account of considerations of commercial condentiality, may publish such nancial information in order to contribute to an open and competitive telecommunications market.

10.

(1) A licensee shall maintain separate books of account for each Accounts.

service as may be prescribed by the Commission from time to time and shall not cross-subsidize the prices for any service it offers in the market with revenue from the sale of communication systems and services.

(2) A licensee shall maintain accounting separation techniques to be focused on the separation of revenues, costs and capital employed into categories in order to ensure that there is no discrimination between internal and external pricing in all services provided by the licensee.

(3) Where the interconnection services are not provided through a structurally separated subsidiary, a dominant telecommunications service provider shall keep separate accounts as if the telecommunications activities in question were in fact carried out by legally independent companies, to identify all elements of cost and revenue together with the basis of their calculation and the detailed attribution methods used.

(4) A dominant telecommunications service provider shall maintain separate accounts in respect of interconnection services and its core telecommunications services and the accounts shall be submitted for independent audit and thereafter published.

(5) The Commission shall from time to time develope guidelines providing for the system of transfer charges to be applied to services and products provided from one licensee to another and for the implementation of 216 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] this regulation.

L.N.

150/2010.

(6) A licensee shall promptly, on request, supply nancial information to the Commission to the level of detail specied by the Commission.

Obligations of 11.

(1) All licensees shall provide uniform, non-preferential service on a licensees rst-come-rst-served basis to all persons within a covered geographical area or a given class who request for such service.

(2) A licensee shall not violate the principle of equal access and non preferential treatment if it (a) considers the ability of a person to pay for a service when deciding whether to provide a service to the person; or, (b) makes other rational classications among subscribers, suchas business and residential, and to provide service on thebasis of the classication.

Guidance.

12.

(1) Where a licensee intends to enter into an agreement or take any action that may affect another licensee in the same market segment, it may seek guidance from the Commission at least thirty days prior to the entering into the agreement or taking of such action.

(2) The Commissions shall respond within thirty days of receiving the request under paragraph (1) stating whether the agreement or conduct is likely to contravene these Regulations; (3) Notwithstanding the provision of these Regulations, a licensee shall ensure that all its agreements and conduct are lawful.

Investigations into 13.

(1) The Commission may, on its own motion or upon a complaint, complaints of unfair investigate a licensee whom it has reason to believe has committed an act or competition and omission, or is alleged to have committed an act or omission, or to have engaged discrimination.

in a practice, breaching the requirement for fair competition or equality of treatment.

(2) When conducting an investigation under section 84S and 84T of the Act, the Commission may (a) require the production of any document or information that is specied or that falls within a specied category, which it considers relates to any matter relevant to the investigation, at a time and place, and in the manner or form specied; (b) take copies of, or extracts from any document produced; (c) require an explanation of any such document; and (d) where a document is not produced, require a statement specifying where it can be found; Rev.

2011] Kenya Information and Communications CAP.

411A 217 (e) enter any premises with a warrant and require the production of any [Subsidiary] document appearing to be the kind in respect of which the warrant was granted or relevant to the investigation and require any relevant information held in computer to be produced in a form in which it can be readand taken away; (f) enter premises with a warrant search the premises and take copies of, or extracts from, any documents appearing to be the kind in respect of which the warrant was granted and require any relevant information held in a computer to be produced in a form in which it can be read and taken away.

14.

(1) These Regulations shall not apply to conduct which is Exemptions.

necessary (a) for a licensee entrusted with the operation of essential communications services that relate to, among others, health, national security and any other circumstance that the Commission may prescribe, insofar as the application of the Regulations would obstruct the performance of the tasks assigned to the licensee; (b) to comply with a legal requirement; or (c) to avoid conict with international obligations.

15.

Part IV of the Kenya Communications Regulations, 2001 is Revocation of Part revoked.

IV of L.N 68 of 2001 218 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] L.N.

30/2010.

THE KENYA INFORMATION AND COMMUNICATIONS (INTERCONNECTION AND PROVISION OF FIXED LINKS, ACCESS AND FACILITIES) REGULATIONS, 2010 Citation.

1.

These Regulations may be cited as the Kenya Information and Communications (Interconnection and Provision of Fixed Links, Access and Facilities) Regulations, 2010.

Interpretation.

2.

In these Regulations, unless the context otherwise requires access means availing facilities or services, to another service provider under specied conditions, an exclusive or non-exclusive basis, for the purpose of providing telecommunications services; calling line identity means the information generated by a telecommunications system that identies the calling number and forwards it through the telecommunications network to a receiving communications system; co-location means accommodation of two or more switches, transmission equipment, antennas or any other electronic communications equipment in, or on a single building tower or any other structure for the purpose of interconnecting communications networks; customer means a user of telecommunications services provided by a telecommunications service licensee; end-to-end connectivity means property that allows all nodes of the network to send information to all other nodes of the network, and do not require intermediate network elements to further interpret them; facilities acquirer means a licensee who provides network services who has leased or shares facilities or has requested to lease or share facilities from a facilities provider; facilities provider means a network facilities licensee who has been requested by a facilities acquirer for lease or to share facilities; interconnect capacity means a transmission and switching capability and any other facility for connecting telecommunications networks of two or more telecommunications service licensees; interconnect licensee means a provider of a telecommunications service who, in accordance with a licence issued by the Commission, is required to provide interconnection service to other telecommunications licensees; interconnecting licensee means a provider of telecommunication services who has interconnected or has requested to interconnect its telecommunications system to the telecommunications system of an interconnect provider; Rev.

2011] Kenya Information and Communications CAP.

411A 219 interconnection means the physical and logical linking of [Subsidiary] telecommunication networks used by the same or different service licensees in order to allow the users of one licensee to communicate with users of the same or another licensee or to access services provided by another licensee; interconnection agreement means an agreement, entered into, before or after the commencement of these Regulations, between an interconnect licensee and an interconnecting licensee in relation to the interconnection of their telecommunication systems; interconnection information means information in the possession or control of parties to an interconnection agreement or intending to interconnect their telecommunications systems and services which may assist such parties to formulate their interconnection or plans, to establish or maintain their telecommunication systems or a telecommunication service for the purpose of interconnection, which information may include (a) technical, trafc and other relevant information system and facilities specications; and (b) any material changes to that information or specications which may impact on the parties interconnection arrangements or the services they intend to provide to customers by means of that interconnection; interoperability means the ability of communication systems, units, or elements to provide services to and accept services from other systems, units or forces and to use the services exchanged to enable them to operate effectively together; licensee means a person licensed under the Act; local access provider means any person licensed by the Commission to provide telecommunications service within a geographical area (telecommunications region) prescribed by the Commission within which a licensee is licensed to operate telecommunications systems and services and shall include regional telecommunications service providers; network facility means any element that forms part of an electronic communications network and includes any wire, cable, antenna, mast or other thing which is or may be used for or in connection with communications; just and reasonable charges means charges that enable a licensee maintain its nancial integrity, attract capital, operate efciently and fully compensate investors for risks borne; licensee means a person licensed under the Act; local access licensee means any person licensed by the Commission to provide telecommunications service within a specied geographical area (telecommunications region) within which a licensee is licensed to operate telecommunications systems and services and shall include regional telecommunications service licensees; 220 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] network facility means any element that forms part of an electronic communications network and includes any wire, cable, antenna, mast or other thing which is or may be used for or inconnection with communications; point of interconnection means a mutually agreed upon point where the exchange of trafc between the telecommunication system or apparatus of an interconnect provider and the telecommunications system or apparatus of an interconnecting licensee, takes place, including the exchange of trafc between a local access provider or mobile cellular communication service provider (where applicable) and another licensed telecommunications network service provider; private network licensee means the licensee of a telecommunications system that provides private telecommunication services for its own use; public network licensee means a provider of a public telecommunications service; reference access offer means a document setting out the terms and conditions under which an interconnect licensee undertakes to permit access to its telecommunications network in a nondiscriminatory manner; reference interconnect offer means a document setting out theterms and conditions under which an interconnect licensee undertakes to permit interconnection to its telecommunications network in a nondiscriminatory manner; Application.

3.

These Regulations shall apply to all interconnect licensees and interconnecting licensees, including the form and content of interconnection agreements, access and facilities.

Rights and 4.

(1) An interconnecting licensee shall, subject to compliance obligations to with the provisions of the Act and any guidelines on interconnection of interconnect.

telecommunications systems and services that the Commission may from time to time publish, have the right to choose its interconnection licensee to route its data trafc and calls towards customers of another licensee.

(2) Notwithstanding paragraph (1), an interconnecting licensee shall route its data trafc and calls towards international destinations through a licensee who has been licensed to provide the service.

(3) An interconnection licensee shall have the right and, when requested by an interconnecting licensee, an obligation, to negotiate the interconnection of its telecommunications system, facilities and equipment with the telecommunications system, facilities and equipment of the interconnecting licensee, in order to provide end-to end connectivity and interoperability of services to all customers.

(4) A interconnection licensee shall accept all reasonable requests for access to its telecommunications system at the network termination points offered to the majority of the interconnecting operators.

Rev.

2011] Kenya Information and Communications CAP.

411A 221 (5) The Commission may exempt an interconnection licensee from the [Subsidiary] obligation under paragraph (1), where (a) an interconnection agreement is prohibited by law; (b) the licence issued to a licensee does not permit a licensee to offer the services for which the interconnection is requested; (c) the requested interconnection is rendered impossible as a result of technical specications; or (d) the interconnection would endanger the life or safety or result in injury of any person or harm to the interconnect licensees property or hinder the quality of the services provided by the licensed service provider.

(6) The Commission shall publish any exemption granted under paragraph (5) of this Regulation.

5.

(1) An interconnect licensee shall provide interconnection information Negotiation of to an interconnecting licensee upon receipt of written request.

interconnection (2) An interconnecting licensees request for interconnection shall be agreements.

given reasonable priority over customer orders of the interconnect licensee.

(3) Parties to an interconnection agreement shall negotiate in good faith and reasonably endeavour to resolve disputes relating to the form and subject of an interconnection agreement that may arise.

(4) Parties to an interconnection agreement shall negotiate freely between themselves and each negotiating party shall not (a) intentionally mislead the other party; (b) coerce the other party into making an agreement that it would not otherwise have made; or (c) intentionally delay or obstruct negotiations.

(5) The terms and conditions for interconnection of telecommunications networks shall be based on the agreement reached between the parties to an interconnection agreement and promote increased access and efcient use of telecommunications systems, services and facilities.

(6) All interconnection agreements shall facilitate end-to-end connectivity by ensuring that calls originated on the telecommunications system of an interconnecting operator can be terminated at any point on the telecommunications system of any other telecommunications service provider on a non-discriminatory basis.

(7) The telecommunication system licensees shall make all interconnection agreements between them in writing and specify 222 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (a) the scope and specication of interconnection; (b) access to all ancillary or supplementary services or access to and use of premises or land necessary to support interconnection; (c) maintenance of end-to-end quality service and other service levels; (d) charges for interconnection; (e) billing and settlement procedures; (f) ordering, forecasting, provisioning and testing procedures; (g) points of interconnection or co-location; (h) the amount of, or the forecast procedures to be used to determine, interconnect capacity to be provided; (i) transmission of call line identity; (j) network information; (k) information regarding system modernization or rationalization; (l) technical specications and standards; (m) interoperability testing, trafc management, measurement and system maintenance; (n) an information handling process and condentiality agreement; (o) duration for and renegotiation of the agreement; (p) formation of appropriate working groups to discuss matters relating to interconnection and to resolve any disputes; (q) formal dispute resolution procedures; (r) denition and limitation of liability and indemnity; (s) adequate capacity, service levels and reasonable remedies for any failure to meet those service levels; (t) force majeure; (u) other contractual terms and conditions; and (u) any other matters that the Commission may prescribe.

Rev.

2011] Kenya Information and Communications CAP.

411A 223 (8) Interconnection agreements shall not, directly or indirectly- [Subsidiary] (a) preclude or frustrate the exercise of rights or privileges given under the Act or a licence or by any person; (b) impose any penalty, obligation or disadvantage on any person for exercising any rights under the Act or a licence; (c) prohibit a person from providing an interconnection service which that person is able to lawfully provide; or (d) frustrate the provision of a telecommunications service by a person is able to lawfully provide.

(8) The Commission may on its own initiative or upon the request of a party (a) intervene in negotiations on agreements for interconnection where no agreement is reached between the negotiating parties within six weeks of the commencement of the negotiations; or (b) set time limits within which negotiations on interconnection are to be completed, which time limits shall not exceed six weeks unless the Commission considers that a longer period is necessary.

(10) The Commission may from time to time issue technical, costing and other relevant guidelines to guide licensees in negotiating interconnection agreements.

(11) Where a telecommunications service licensee (a) enters into an interconnection agreement with another telecommunications licensee, the Commission may review the agreement to ensure that it conforms with the Act, Regulations and any guidelines on interconnection of telecommunications networks issued by the Commission; or (b) has not interconnected its facilities upon request by another licensee, the Commission shall require the licensee concerned to interconnect its facilities in order to protect essential public interests and may set the terms and conditions of the interconnection.

6.

(1) Parties to an interconnection agreement shall le with the Approval of Commission an application for approval of the proposed interconnection Interconnection agreement at least fourteen days before the date of implementation of the Agreements.

interconnection agreement.

(2) Parties to an interconnection agreement shall le with the Commission an application for approval of the renewal or extension of an existing interconnection agreement at least fourteen days prior to the expiry of the agreement.

224 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (3) The Commission may request for information from the parties to an interconnection agreement that it considers necessary to evaluate the terms and conditions and the charges set forth in the agreement, and request that the interconnection agreement be modied in the manner specied by the Commission, in writing.

(4) Upon receipt of a request by the Commission to modify an interconnection agreement the parties shall negotiate and submit a revised interconnection agreement to the Commission within ten days of receipt of the request by Commission.

(5) Where the parties are unable to agree on the requested modication, the Commission may, if it determines that a negotiated agreement is not achievable, provide an interconnection agreement tothe parties that includes the terms and conditions and with the charges payable for the interconnection.

(6) Where licensees are in the process of negotiating an interconnection agreement or have agreed on an agreement but the agreement is pending before the Commission for approval, the parties may agree to exchange trafc based on interim conditions and notify the Commission.

Provided that the conditions agreed on in the interconnection agreement once approved by the Commission shall apply in respect of the period for which the agreement is negotiated.

(7) A party who is aggrieved by the decision of the Commission may, within fteen days from the date of the Commissions decision, appeal to the Tribunal.

Condentiality.

7.

(1) A party to an interconnection agreement may, before the ling of the agreement with the Commission, mark provisions containing trade or operating secrets and the party shall additionally submit to the Commission for review a modied version of the agreement which does not, in that partys view, disclose the trade or operating secrets.

(2) Where the Commission considers the marking unjustied, it shall consult with the respective telecommunications service provider prior to making a decision to allow third parties to inspect the agreements in whole or in part and may subsequently restrict inspection to the modied version of the interconnection agreement.

Interconnection.

8.

(1) Any transmission of calls across and within telecommunications systems shall be seamless to both the calling party and the party receiving the call.

(2) All procedures for forecasting, ordering and provisioning interconnection shall be efcient and shall occur within reasonable time frames.

(3) All facilities or systems used for interconnection shall be provided in sufcient capacity to enable the efcient transfer of information between Rev.

2011] Kenya Information and Communications CAP.

411A 225 interconnected telecommunication systems.

[Subsidiary] (4) A service acquired as part of interconnection may be used for any lawful purpose.

9.

In similar conditions and similar circumstances, an interconnection Non-discrimination licensee shall provide interconnection on a nondiscriminatory basis and the and transparency.

interconnection licensee shall ensure that (a) the rates it charges do not vary on the basis of the class of customers to be served; (b) it provides interconnecting licensees with interconnection facilities and information under the same conditions and in the same quality that it affords to its subsidiaries, afliates, or other similarly situated interconnecting licensees; (c) it avails to interconnecting licensees all necessary information and specications related to interconnection; and (d) customers of an interconnecting licensees receive treatment that is no less favourable than the treatment which it affords to its own customers or the customers of its subsidiaries, afliates, or other similarly situated interconnecting licensees.

10.

(1) Parties to an interconnection agreement shall comply with all Quality of service.

relevant service standards of the International Telecommunications Union and other technical standards that the Commission may publish from time to time.

(2) A licensee shall ensure that the prescribed quality of service is not impaired on interconnection.

11.

(1) In order to achieve the quality of inter-operability to the prescribed Network upgrading.

level a licensee shall (a) notify the Commission and all other licensees interconnecting in the network, of any planned change in the network capacity, technology, structure and conguration, at least three months prior to the planned change; and (b) provide details relating to any change in the licensees network, including trafc forecast to the Commission at least three months prior to the planned change.

12.

(1) All charges for interconnection services shall Interconnection charges structure.

(a) be objective, independently veriable and fair; (b) be charged for each type of telecommunications service related to interconnection; 226 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (c) not be designed to facilitate cross-subsidies by an interconnect provider of its network; (d) be below the retail charges levied by the interconnect provider for the provision of any retail service that makes similar use of those network elements that are required by both the retail and interconnection service; and (e) be sufciently below retail service charges to allow for recovery of the incremental retail costs associated with provision of the retail service supported by the interconnection service that the interconnect service provider would have to incur in order to compete effectively with the interconnect provider at the retail level.

(2) All charges for interconnection shall be structured to distinguish and separately price (a) xed charges for the establishment and implementation of physical interconnection; (b) periodic rental charges for use of facilities, equipment and resources including interconnect and switching capacity; and (c) variable charges for telecommunications services and supplementary services.

(3) A licensee shall be free to acquire services from an interconnect provider at any retail price offered by the interconnect provider without prejudice to any rights to acquire the same or similar services under an interconnection agreement.

(4) The Commission shall prescribe guidelines on interconnection charging methodology from time to time.

Interconnection 13.

(1) All requests by an interconnecting licensee for any form of procedures.

interconnection shall be in writing and shall provide the interconnection licensee with information relating to (a) the form of interconnection; (b) the date for the commencement of negotiations; (c) the approximate date the interconnection is required; and (d) an estimate of the capacity required.

(2) A copy of the request for interconnection in paragraph (1) shall be forwarded to the Commission by the requesting party within seven days of the request by the requesting party.

Rev.

2011] Kenya Information and Communications CAP.

411A 227 (3) The interconnect licensee shall inform the interconnecting operator [Subsidiary] in writing within fourteen days of receipt of the request for interconnection of its ability and willingness to supply the form of interconnection requested within the time frames requested by the interconnecting licensee and its ability to commence negotiations on the date requested.

(4) Where the parties do not agree on the date to commence negotiations, the Commission shall facilitate negotiations to an interconnection agreement on a date specied by the Commission.

(5) Where the Commission is of the view that parties to an interconnection agreement have taken longer than necessary to negotiate and conclude an interconnection agreement, and the proposed charges to an interconnection agreement are unreasonable and do not promote effective competition the Commission shall make a determination to be applicable during the time when negotiations are going on and the time within which negotiations on interconnection are to be completed.

(6) Where a party or any other person alleges that there has been a contravention or failure to comply with the provisions of the Act, Regulations and any guidelines on interconnection or an interconnection agreement, the Commission shall investigate and make a decision.

(7) Where the interconnect licensee has informed the interconnecting licensee that it is able to provide interconnection, it shall ensure that the system conditioning and provisioning procedures required to provide such interconnection are undertaken within the time required by the interconnecting licensee.

(8) Disputes that relate to the timely provision of interconnection or notice of planned changes shall be submitted to the Commission for determination.

14.

(1) Parties to an interconnecting agreement shall establish and Establishment and maintain points of interconnection at any technically feasible points agreed location of points of by the parties.

interconnection.

(2) An interconnecting licensee shall, in sufcient detail, notify the interconnection licensee of the points at which they wish to be interconnected to enable the interconnection licensee to assess the systems conditioning and other requirements for establishing such points of interconnection.

(3) Points of interconnection shall be established as soon as practicable following a request and not later than thirty days from the date of the request.

(4) Unless otherwise determined by the Commission, interconnecting licensees shall be responsible for the cost of building and maintaining the points, data ll and switching capacity to support the interconnection and for the costs of transport from their points of origination to points of interconnection.

(5) Licensees providing interconnection services may mutually agree on the point of interconnection and share the costs of establishing such points of interconnection.

228 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (6) Where a licensee seeking interconnection from any interconnection licensee requests that its facilities for interconnection be co-located with the facilities or premises of the interconnection licensee, such co-location may be provided and the costs of such co-location shall be mutually agreed by the parties.

Calling line identity.

15.

Parties to an interconnecting agreement shall pass calling line identity and all necessary signaling data between interconnecting parties in accordance with standards prescribed and published fromtime to time by the Commission.

Modication, 16.

(1) Parties to an interconnection agreement shall ensure that any suspension and modication, suspension or termination of the interconnection agreement does termination not adversely affect customers.

(2) An interconnect provider may not terminate an interconnection agreement unless (a) the termination is as a result of a fundamental breach of the interconnection agreement and the interconnecting licensee after having been given an opportunity to remedy the breach,has failed to do so; (b) the interconnect provider gives reasonable written notice of its intention to terminate and- (i) species the grounds for termination; or (ii) gives, in the case of breach, a notice of one month, for the service provider to remedy the breach; (c) the Commission has been notied of the intended termination and it has given consent, in writing.

(3) A party to an interconnection agreement may only suspend interconnection in exceptional circumstances and only where such suspension is intended to address a material degradation of telecommunications systems or services and the Commission notied of the intended suspension and it has given its consent.

(4) Parties to an interconnection agreement that has been approved by the Commission may amend or modify the agreement by giving the Commission a copy of the proposed amendment not less than fourteen days prior to the effective date.

Condentiality 17.

(1) A party who receives information relating to interconnection from another party which is designated as condential shall keep the information condential and may disclose it (a) to employees, agents or advisers who need to know that information Rev.

2011] Kenya Information and Communications CAP.

411A 229 [Subsidiary] for the purpose of the provision of interconnection, or giving advise thereon; (b) to persons to whom such disclosure is authorised by that other party; (c) where such disclosure is authorized or required by law; and (d) to the Commission.

(2) Condential information relating to interconnection of a party received by another party, or business information generated by the telecommunications system of a party as a result of interconnection, shall be used solely for the purpose of providing interconnection, and shall not be disclosed to any person involved in the development or provision of retail services of the other party, its subsidiaries or afliates.

(3) The provisions relating to condentiality of any matter in an interconnection agreement shall not prevent the disclosure by the Commission of any provisions therein due to public interest or pursuant to a legal process.

18.

(1) Where the Commission issues an order requiring a dominant Reference telecommunications service licensee to publish a reference interconnection interconnection offer offer or a reference access offer, the licensee shall, unless otherwise determined and reference access by the Commission offer obligations.

(a) submit a proposed reference interconnection or reference access offer, as the case may be, to the Commission for review and approval within three months after the issuance of the order by the Commission; and (b) be subject to the terms and conditions of the approved reference interconnection or reference access offer approved by the Commission, subject to any amendments considered appropriate by the Commission, within three months after the issuance of the order by the Commission.

(2) Prior to approving any reference interconnection or reference access offer or any amendments thereto, the Commission may (a) request for additional information or clarication from the dominant telecommunications service licensee with regard to the proposed reference interconnection or reference access offer; or (b) consult with the industry and public on the proposed reference interconnection or reference access offer.

(3) The Commission may publish guidelines or models for the uniform sector-wide application of reference interconnection or reference access offers, which shall be used by all dominant telecommunications service licensees.

(4) The reference interconnection offers shall be sufciently unbundled 230 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] to ensure that the interconnecting operators do not pay for network elements or facilities which are not necessary and shall contain a description of the components of the offer, associated terms and conditions, including the structure and level of prices.

(5) The reference access offers shall be sufciently unbundled to ensure that the access seekers do not pay for network elements or facilities which are not necessary and shall contain a description of the components of the offer, associated terms and conditions, including the structure and level of prices.

(6) Where applicable, the reference access offers shall, where applicable, include detailed information related to access to (a) network elements and associated facilities, which may involve the connection of equipment, by xed or non-xed means; (b) physical infrastructure including buildings, ducts and masts; (c) relevant software systems including operational support systems, access to number translation or systems offering equivalent functionality; (d) xed and mobile networks, in particular for roaming, access to conditional access systems for digital television services; and (e) access to virtual network services.

Co-location.

19.

(1) Where a licensee has the right to install facilities on, over or under private land or take advantage of a procedure for the expropriation or use of property, the Commission shall encourage the sharing of such facilities and property with other licensees, in particular, where other licensees do not have access to viable alternatives.

(2) A service provider providing such co-location shall (a) le with the Commission a schedule of fees charged for co- location; (b) agree on a meet-point with another licensee seeking interconnection and designating location for interconnecting the network; (c) provide reasonable, just, and non-discriminatory rates, terms and conditions for physical collocation of equipment necessary for interconnection or for providing access to the unbundled network elements at the licensees premises; (d) resort to virtual co-location, requiring interconnection at a place outside the licensees usual premises such as switching, transmission, or main distribution door frame room if it is demonstrated that physical co-location is not practical for technical reasons or for space limitations; Rev.

2011] Kenya Information and Communications CAP.

411A 231 [Subsidiary] (e) agree with a licensee seeking interconnection on a facility that is based in the central ofce of either party to complete the transmission; and (f) charge a fee according to led tariffs.

(3) The terms and conditions for co-location or sharing of facilities shall be subject to a commercial and technical agreement between the parties concerned and the Commission may intervene to resolve disputes arising from such agreements.

20.

(1) A Facilities licensee shall facilitate access to network facilities Network access and in the following manner facilities.

(a) access to network facilities shall be commercially agreed upon between the facilities acquirer and the facilities licensee; (b) request for access to network facilities shall be reasonable and in writing; (c) a facilities licensee and a facilities acquirer shall negotiate access to network facilities, at all times, in good faith; (d) a facilities licensee shall submit a copy of a concluded access agreement to the Commission within thirty days after the conclusion; (e) the Commission may authorize access to essential facilities of dominant telecommunications service providers; and (f) a facilities licensee who has been authorized to provide access to network facilities shall be entitled to levy a charge for such access to enable it recover economic costs and ensure a reasonable rate of return; (2) A facilities provider shall treat each (a) facilities acquirer on a basis that is non-discriminatory in its provision of facilities and no less favourable than the treatment which the facilities provider affords to its subsidiaries, its afliates, or other similarly situated facilities acquirers; (c) communication network service of a facilities acquirer on a basis that is non-discriminatory and no less favourable than the treatment which the facilities provider affords to the electronic communication network services of itself, its afliates, or other similarly situated facilities acquirers; and (d) customer of a facilities acquirer on a basis that is nondiscriminatory and not less favourable than the treatment which the facilities 232 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] provider affords to its own customers of the customers of its subsidiaries, its afliates, or other similarly situated facilities acquirers.

(3) A facilities licensee may refuse unreasonable requests for access to its network facilities.

it- (4) A request for access to network facilities shall be unreasonable if (a) is not economically or technically feasible; or (b) may result in the facilities licensee being unduly prejudiced.

(5) An access agreement shall be in writing and it shall, unless it is not relevant to the access that has been requested, specify (a) the scope and specication of the facilities to be provided; (b) access to all ancillary or supplementary services, or access to and use of premises or land that are required to support the provision of network facilities; (c) service levels and the maintenance of facilities; (d) charges for the facilities; (e) billing and settlement procedures; (f) ordering, forecasting, provisioning and testing procedures; (g) the provision of co-location for facilities and the terms and conditions in accordance with which co-location is to be provided; (h) technical specications, standards and inter-operability tests; (i) information handling and condentiality; (j) duration, re-negotiation and review procedures; and (k) dispute resolution procedures.

(6) A facilities licensee shall not be required to provide access where, in the Commissions view, it is not reasonable to require the facilities provider to provide access including, among others, to circumstances where it is beyond its control or it is not reasonably practicable.

Provisions for leased 21.

(1) A telecommunications licensee who intends to acquire leased capacity.

capacity in order to provide services licensed under the Act shall request for the provision of such capacity from a facilities licensee.

Rev.

2011] Kenya Information and Communications CAP.

411A 233 (2) A facilities acquirer who intends to acquire leased capacity shall [Subsidiary] present a request for leased capacity, in writing, to a facilities licensee specifying the requested location, quantity and other technical requirements.

(3) A facilities licensee shall respond to a request under paragraph (2), in writing within fteen days of receipt of the request, stating whether the required capacity can be supplied in accordance with the requested technical requirements, the offered price, and the date upon which the installation of the requested capacity shall be completed, which date shall not be later than ninety days after receipt of the request.

(4) A facilities acquirer may apply to the Commission for permission to establish its own network or infrastructure (a) where a facilities licensee is unwilling to provide the service or (b) upon failure by the facilities licensee to (i) reply to a request within ninety days of receipt; (ii) complete the installation of the required capacity within ninety days of receiving the request; or (iii) provide capacity at a reasonable price and at quality or techni- cal standards which comply with telecommunication systems requirements.

(5) The Commission may, upon receipt of an application made under paragraph (4), authorize a facilities acquirer to establish the required capacity.

22.

Any dispute arising out of the application of these Regulations shall Dispute resolution.

be resolved in accordance with the Kenya Information and Communications (Dispute Resolution) Regulations, 2010.

23.

Part VII of the Kenya Communications Regulations, 2001 is Revocation of Part revoked.

VII of L.N 168 of 2001.

234 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] L.N.

54/2010.

THE KENYA INFORMATION AND COMMUNICATIONS (CONSUMER PROTECTION) REGULATIONS, 2010 Citation.

1.

These Regulations may be cited as the Kenya Information and Communications (Consumer Protection) Regulations, 2010.

Interpretation.

2.

In these Regulations, unless the context otherwise requires Cap.

265.

child means any human being under the age of eighteen years; commercial code of practice means the principles, values, standards or rules that guide or govern the decisions, procedures and systems of an organization in a way that contributes to the welfare of its key stakeholders, and respects the rights of all constituents affected by its operations; complaint means any statement of dissatisfaction with the services of a licensee made by a customer; customer means any person who uses the services or purchases the products of a particular licensee or vendor, without necessarily being a subscriber to that licensee or vendor; disability means a physical, sensory, mental or other impairment, including any visual, hearing, learning or physical incapability, which impacts adversely on social, economic or environmental participation; licensee means a person licensed under the Act; outage credit means a credit to be paid to a subscriber for a period of time when the service is not operating for reasons not caused by the subscriber; subscriber means any person who purchases a communications service or agrees to receive and pay for the service from a licensee through a subscriber service agreement; subscriber service agreement means an agreement entered into by a licensee and subscriber for the provision of the licensed services to the subscriber; vendor means a person who carries out the business of selling, reselling or distributing ICT terminal equipment used for the provision of licensed services.

Rights and 3.

(1) A customer shall have the right to obligations of (a) receive clear and complete information about rates, terms and customers.

conditions for available and proposed products and services; (b) be charged only for the products and services they subscribe to; Rev.

2011] Kenya Information and Communications CAP.

411A 235 (c) where possible, select a service provider and service of the [Subsidiary] customers choice; (d) personal privacy and protection against unauthorized use of personal information; (e) accurate and understandable bills for products and services authorised by the customer, and to fair prompt redress in the event of a dispute in the provision of the products and services; (f) protection from unfair trade practices, including false and misleading advertising and anti-competitive behaviour by licensees; and (g) equal opportunity for access to the same type and quality of service as other customers in the same area at substantially the same tariff limiting variations to available or appropriate technologies required to serve specic customers.

(2) A consumer shall (a) use communications systems and services in the appropriate manner, without abusing them; (b) familiarize with and honour their obligations under any contract entered into with a product supplier or service provider; (c) make reasonable decisions in exercising their right of choice; and (d) familiarize with and abide by any safety or security requirements pertaining to the use of communications systems and services.

4.

(1) A service provider shall take appropriate technical and organizational Safeguards.

measures to safeguard the security of its services.

(2) Where there is a particular risk of a breach of the security of the network, a licensee shall (a) inform the subscribers of the risk; and (b) where the risk lies outside the scope of the measures that may be taken by the licensee, of any possible remedies, including an indication of the likely costs involved.

5.

(1) A licensee shall, within the period specied in its licence or by the Customer care Commission, establish a customer care system within which customers can make system.

inquiries and complaints concerning its services in such format and containing such details as may be required by the Commission within the time prescribed in the licence or within a reasonable time after the grant of a licence, or as may be specied by the Commission and be available upon commencement of provision of service to the public.

236 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (2) The Commission may from time to time publish guidelines relating to the customer care systems that the licensee may establish.

Provision of services 6.

(1) A vendor shall provide all pertinent information on the equipment and sale if ICT it offers for sale, including among others, the type-approval or type acceptance terminal equipment.

status and whether or not such equipment is new or used, to prospective buyers in a clear and unambiguous manner.

(2) A vendor shall honour all agreements entered into with a buyer, through the sale of terminal equipment and shall ensure that such equipment is in proper working order at the time of sale.

(3) A vendor shall ensure that its advertisements relating to the goods regulated under the Act are unambiguous and factual.

Complaint handling 7.

(1) A licensee shall provide easily understood information about procedures of its complaint handling processes in various media and formats, including as licensees.

specically directed by the Commission from time to time.

(2) A customer who wishes to lodge a complaint shall reduce the complaint in writing and lodge it within six months from the date of the incident that the complaint arises from.

it.

(3) A licensee shall acknowledge the receipt of a complaint led with (4) A licensee shall where possible, advise a customer at the time of making the complaint on the expected action, timing for investigation and resolution of the complaint and in the event that the service provider regards the complaint as frivolous or vexatious, the consumer shall be informed accordingly.

(5) A licensee shall resolve all complaints made by its customers within a reasonable time.

(6) A licensee shall put in place a process to provide customer with sufcient information and the means to inquire on the progress of complaints and the processes may include complaint reference numbers or other identiers in order to facilitate timely and accurate responses to subsequent inquiries by customers.

(7) A licensee shall inform the customer of the outcome of the investigation of their complaint, and any decision of the licensee.

(8) Where a customer is not satised with a decision made on a complaint, the licensee shall give the customer the option of pursuing an identied escalation process, where the decision may be examined by a suitably qualied person in the licensees organisation.

(9) Where the consumer has already gone through the licensees escalation process and the complaint has not been resolved to the consumers satisfaction, the customer may refer the complaint to the Commission.

Rev.

2011] Kenya Information and Communications CAP.

411A 237 [Subsidiary] (10) The complaint handling processes shall be provided free of charge.

(11) Notwithstanding paragraph (10), where the investigation of the complaint requires the retrieval of records more than twelve months old or the retrieval results in any incremental expense or signicant inconvenience to the licensee, a licensee may impose a reasonable charge for the complaint handling processes.

(12) Any such charges shall be identied by the licensee, be agreed to by the customer and referred to the Commission before being imposed.

(13) A licensee shall le, with the Commission, such information and statistics on all complaints reported, including those resolved and those outstanding, on a quarterly basis in the manner prescribed by the Commission from time to time.

8.

(1) A licensee shall ensure that persons with disabilities can easily Complaints by access its complaint handling processes.

persons with (2) A licensee shall provide reasonable assistance to a customer who disabilities.

specically requests for assistance when lodging complaints.

(3) A licensee shall take such measures as may be prescribed by the Commission to ensure that the requirements and interests of disabled customers are fully addressed.

(4) A licensee shall fulll any specic obligations that relate to special services or special arrangements for customers with disabilities that the Commission may from time to time impose.

9.

(1) A licensee shall establish mechanisms that enable parents and legal Protection of guardians to block access of children to harmful content.

children.

(2) A licensee who owns promotes, glamorises or markets alcohol and tobacco products or other harmful substances that are directed at children commits an offence.

10.

(1) A licensee shall provide a clear and understandable description Information for of available services, rates, terms, conditions and charges for such services customers.

and publish the information within such periods as may be determined by the Commission.

(2) The Commission may from time to time publish information that may include, among others, tariffs and statistical information, it considers useful to customers.

(3) Without prejudice to any other information that may be required by the Commission, a service provider shall provide customers at the point of sale, where applicable with 238 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (a) the name of the service provider; (b) a toll free consumer service number; (c) the activation fee or initiation fee, including deposit requirements; (d) the monthly access fees or base charges tariff provisions for calculating charges including, among others (i) minimum charges, units, distances; (ii) peak, and off peak rates; (iii) night, weekends and holidays rates; (iv) international call charges; and (e) any additional or different prices, rates or unit values applicable, and additional taxes or fees.

Outage credit system.

12.

(1) A licensee shall, within six months from the date of the grant of the licence, submit to the Commission a system of outage credits to be given to a subscriber, which upon the Commissions approval shall become part of the licensees standard subscriber service agreement.

(2) A licensee shall not be responsible to subscribers for scheduled outages arising in accordance with the terms and conditions of a licence, from an event or effect, which in the Commissions view was not reasonably foreseeable or preventable.

Code of commercial practice.

13.

(1) A licensee shall submit to the Commission, within six months of being granted a licence for approval, a commercial code of practice in the prescribed manner.

(2) Upon receiving the code submitted under paragraph (1), the Commission may (a) approve the proposed code; (b) approve the commercial code of practice with the recommendation that the licensee makes alterations specied by the Commission; (c) decline to approve the proposed code and direct that the licensee improves specied areas or further developes the proposed code; or (d) extend the period for the review of the proposed code.

(3) The commercial of practice shall include, among others, the licensees complaints handling procedure, advertising policy, system of outage credit and Rev.

2011] Kenya Information and Communications CAP.

411A 239 the emergency safety and assistance services and any other information as the [Subsidiary] Commission may determine.

(4) A licensee shall deliver to each subscriber within three months of the commencement of the service, the commercial code of practice as approved by the Commission.

(5) The commercial code of practice shall not replace or reduce any benet of price assurance provided to the subscriber by the subscriber service contract; and shall (a) supplement the subscriber service contract and not reduce a subscribers consumer rights; and (b) be consistent with consumer protection laws.

14.

(1) A licensee shall submit to the Commission, for approval, the Standard subscriber standard subscriber service agreement applicable to each service it offers to service Agreements.

the public.

(2) Where a dispute arises between a consumer and a licensee on the interpretation of the terms of a service agreement that had not been submitted to the Commission for approval prior to the dispute or complaint and the dispute is submitted to the Commission for resolution, the decision of the Commission shall prevail over the provisions in the subscriber service agreement that had not been approved by the Commission.

(3) For the avoidance of doubt, agreements entered into between terminal equipment vendors and their customers through the sale of such equipment shall be subject to these Regulations and shall be enforced by the Commission.

15.

(1) Subject to the provisions of the Act or any other written law, a Condentiality.

licensee shall not monitor, disclose or allow any person to monitor or disclose, the content of any information of any subscriber transmitted through the licensed systems by listening, tapping, storage, or other kinds of interception or surveillance of communications and related data.

(2) A licensee shall, where applicable, establish mechanisms by which customers may be able to (a) know that information is being collected about them through their use of various telecommunications services and systems; and (b) receive conspicuous notice that such information could be used, or is intended to be used, without authorisation, by the entity collecting the data for reasons unrelated to the original communications, or that such information could be sold (or is intended to be sold) to other companies or entities; (3) Notwithstanding paragraph (2)(b), nothing in this regulation shall be construed to mean that a licensee may sell or offer for free, to a third party, 240 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] any information collected by the licensee without the prior consent of the consumer concerned.

(4) In the case of children, the powers exercised in paragraph (1) and (2) shall be vested in the parents or lawful guardians on their behalf.

Operator assistance.

16.

A licensee shall, where applicable, ensure that all its customers can access operator assistance services.

Unsolicited 17.

(1) A person who uses automated calling systems without human communications.

intervention, facsimile machines or electronic mail for purposes of direct marketing without the prior consent of the subscriber commits an offence.

(2) A person who sends electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that the communications cease commits an offence.

(3) Where a natural or legal person legally obtains from its subscribers their electronic contact details for electronic mail, in the context of a sale of a product or service, the natural or legal person may use these electronic contact details for direct marketing of his or its own similar products or services so long as he or it gives the subscriber an opportunity to object, free of charge and in a simple manner, to the use of the data when it is collected and on the occasion of each message in case the subscriber had not initially objected to the use.

(4) All automated direct-marketing schemes to be used in Kenya shall be based on an opt-in principle, in which potential subscribers shall be accorded the opportunity to accept or reject inclusion in a marketers mailing list.

Presentation and 18.

The Commission shall, from time to time, prescribe through guidelines, restriction of calling the manner in which calling line identication features shall be available to and connected line subscribers through licensees whose systems have such capabilities.

identication.

Emergency services.

19.

(1) A licensee shall provide free access to emergency safety mand assistance services in the manner determined by the Commission from time to time, in accordance with the written laws in force and international standards.

(2) A licensee shall permit calls to internationally and nationally emergency numbers to be free of charge.

(3) A licensee shall, where technically possible, forward any useful personal data to the designated emergency services providers upon connecting emergency calls.

(4) Where there is doubt, the Commission shall determine the numbers that qualify for toll free access under paragraph (1) and (2).

Billing 20.

(1) A licensee shall install a billing system that permits, upon request by a customer, issuance of bills that identify the rates charged to the subscriber, Rev.

2011] Kenya Information and Communications CAP.

411A 241 [Subsidiary] the number called, the duration of each call, the charge per call, applicable discounts and the class of service and any other information as may be stimulated by the Commission.

(2) The Commission may include in the billing requirements information relating to (a) the name of licensee; (b) the billing period covered by bill; (c) change in licensee; (d) disclosure of any rate or service charge, including those implemented within the next billing cycle; (e) a listing of the statement or payment due date; (f) amount of charges debited to each billed account from the previous cycle; (g) amount of payments made to each billed account segregated from late payments; (h) terms for late payment fees and termination of service; (i) the licensees toll free number or numbers by which customers may make inquiries about or dispute charges contained on the bill and the methodology used to quantify charges; (j) toll free number of the where customers may make inquiries or le complaints; (k) rental charges; and (l) any other information that the Commission may from time to time by require to be included.

(3) A licensee shall put in place a mechanism through which a subscriber to its service may place a request for an itemised bill, where the service is not issued as a standard offer and accord each customer the option of receiving itemised bills on a regular basis if the subscriber so wishes and upon payment of a reasonable charge.

21.(1) The Commission may issue guidelines for the implementation of Guidelines these Regulations, the guidelines may, among others, relate to (a) standard of conduct for service providers; and (b) key performance indicators for both the sector and individual service providers.

242 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (2) The Commission may review the guidelines made under paragraph (1), to ensure that the guidelines remain relevant and effective.

Monitoring sector 22.

The Commission shall monitor sector performance, conduct performance.

consumer satisfaction surveys and publish its ndings at least once in every two years.

Offences and 23.

(1) A licensee who penalties.

(a) fails to perform the measurement, reporting and record keeping tasks within the required time; (b) faisl to reach a target for any of the parameters stipulated under these Regulations; (c) fails to submit, during a time specied by the Commission, information requested by the Commission pursuant to these Regulations; (d) submits or publishes false or misleading information about the quality of its services; (e) obstructs or prevents an inspection or investigation carried out by the Commission pursuant to these Regulations; (f) engages in any act or omission whose effect would be to defeat the purposes of these Regulations, commits an offence.

(3) A person who commits an offence under these Regulations shall, where no specic penalty is provided for, is liable on conviction to a ne not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or both.

Period of 24.

(1) A licensee shall put in place such measures, processes or systems compliance.

necessary to fully comply with these Regulations within six months of their coming into force.

(2) All existing contracts and codes that have not been led with and approved by the Commission as required by these Regulations shall be led and approval sought within six months of the coming into force of these Regulations.

Rev.

2011] Kenya Information and Communications CAP.

411A 243 THE KENYA INFORMATION AND COMMUNICATIONS [Subsidiary] (NUMBERING) REGULATIONS, 2010 L.N.

55/2010 1.

These Regulations may be cited as the Kenya Information and Citation.

Communications (Numbering) Regulations, 2010.

2.

In these Regulations, unless the context otherwise requires Interpretation.

communications addresses means an address determined by the Commission from time to time, for use in communication; communication number means the number, sign or other mark that a licensee uses for identication of communications systems when its delivering communication services in order to connect between the place of transmission and the place of reception, or for the identication of the type of content of transmission the communications system is to deliver; licensee means a person licensed under the Act; Maritime Mobile Service Identity means a number used for the purpose of identication while using Global Maritime Distress Service System search and rescue facilities on board ships; National Communication Numbering and Addressing Plan means the plan for electronic communications numbers and addresses, postal codes and national addressing system established by the Commission under regulation 4; Numbering Scheme means the procedures and criteria for the reservation, assignment, and reclamation of numbering resources.

3.

The object and purpose of these Regulations is to provide a regulatory Object and purpose.

framework for the control, planning, administration and management of the numbering and addressing of network services, national plan and applications services.

4.

The Commission shall establish a National Communication Establishment Numbering and Address Plan and control all communication numbers and of a National addresses to ensure fairness and efciency by Communication and (a) undertaking planning, allocations and monitoring; Numbering Plan.

(b) maintaining the national communication numbering and address register for all licensees in respect of resources which have been assigned; (c) facilitating maintenance of the national electronic address and users register; (d) managing postal codes and national addressing systems; (e) assigning call signs to all amateur radio operators in the country; 244 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] and (f) issuing maritime mobile service identity numbers for maritime vessels registered in Kenya.

Administration 5.

(1) The Commission shall control, plan, administer and manage the and planning of numbering and addressing of communications systems and services.

numbering and communication (2) The Commission shall develop a numbering, and addressing plan for addresses.

the communications systems and services taking into account the numbering plan subsisting immediately prior to the commencement of these Regulations.

(3) In the discharge of its functions under these Regulations, the Commission shall liaise with the relevant international organizations dealing with numbering and electronic addresses.

(4) Prior to the assignment and publication of any numbering plan, the Commission shall ensure that the numbering plan (a) provides for allocation of numbers to licensees in sufcient quantities in the manner determined by the Commission; (b) allows for numbers to be allocated without undue delay; (c) allows for the inclusion of as few digits as is practicable; (d) does not confer an undue advantage on any licensee; and (e) minimizes any inconvenience and costs that may be caused by the implementation of the numbering plan to a licensee and to persons using the communication systems.

(5) The numbering scheme of each licensee shall comply with the Commissions guidelines relating to the implementation of the national numbering plan.

(6) The numbering and addressing plan may set out rules which may include (a) the use of different numbers and addresses for different kinds of services; (b) the assignment of numbers and addresses; (c) the transfer of assigned numbers and addresses; (d) the use of assigned numbers and addresses; (e) the portability of assigned numbers and addresses; (f) the requirements that licensees maintain a plan for assigning and Rev.

2011] Kenya Information and Communications CAP.

411A 245 re-assigning numbers and addresses; [Subsidiary] (g) the fees for the assignment and transfer of numbers and addresses which may be determined by the Commission; and (h) any other matters that the Commission may, from time to time, prescribe in the Gazette.

(7) The Commission may when assigning or allocating numbers to licensees charge the prescribed fees for the allocation or assignment.

(8) The Commission shall permit any person, upon paying the prescribed fee, to inspect the numbering and addressing plan during working hours.

(9) Notwithstanding paragraph (8), any person authorized by the Commission, in writing, may inspect the numbering plan without paying the prescribed fee.

6.

(1) A licensee shall apply and abide by the numbering plan prescribed Compliance with by the Commission.

numbering and address plans.

(2) The Commission may, before developing a numbering plan, consult with licensees in respect of (a) arrangements for the allocation and re-allocation of numbers within the initial numbering plan; and (b) additions to, or replacement of the initial numbering plan.

(3) The Commission shall, at least six months before prescribing a new numbering plan give notice to licensees and the general public in the Gazette and any other media that the Commission considers appropriate.

7.

(1) All licensees shall use the communication numbers and addresses Obligations of assigned by the Commission in accordance with the National Communication licensees.

Numbering and Address Plan and ensure that the resources are (a) utilized efciently; (b) limited to provision of communication services; (c) utilized in a manner that ensures that communications systems and services are identied; (d) utilized and paid for as prescribed by the Commission; and (e) not transferred without the prior written consent of the Commission.

246 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] 8.

(1) The National Communication Numbering and Address Plan shall Communications include communication numbers and addresses used to identify numbering and electronic address (a) electronic communications networks; plan.

(b) different carries; (c) terminal facilities for cellular phones; (d) signaling transmission equipment; (e) emergency and inquiry calls; (f) terminal transmission line facilities for data communication services; (g) electronic mail communications networks; (h) types or content of information and communication technologies; (i) terminal transmission line facilities for paging services; (j) geographical postal points of delivery; (k) maritime mobile service identity numbers; (l) radio call signs; and (m) such other systems and services as the commission may from time to time prescribe in the Gazette.

Assignment of 9.

Where an application for communication numbers or addresses is communications submitted to the Commission, the Commission shall, after taking into account numbers.

the National Communication Numbering and Address Plan and availability of the numbers and addresses, assign and issue a certicate of assignment together with the conditions attached to the use of the communication numbers the numbers required for the communication numbers or addresses, upon payment of the prescribed fee.

Cancellation of 10.

(1) Where a licensee fails to use the number or address assigned assignment.

by the Commission within the prescribed period, fails to pay any prescribed fees or uses the number in a manner contrary to the Regulations, the licensee shall be required to submit to the Commission the reasons for such failure, after which the Commission may take such measures as it deems t including, among others, cancellation of the assignment.

(2) A licensee who fails to utilize a number or address assigned to it by the Commission within the period prescribed in the assignment may apply, in writing, to the Commission for the extension of the time within which the licensee ought to utilize the number or address.

Rev.

2011] Kenya Information and Communications CAP.

411A 247 (3) An application for extension of time under paragraph (2) shall include [Subsidiary] the reasons for the failure to utilize the number within the time prescribed.

11.

A person shall not regenerate or use ctitious numbers or Prohibition of addresses.

generation and use of ctitious numbers and addresses.

12.

(1) The Commission may appoint a person or an organization to Delegation of manage or maintain an integrated public number or address database.

Responsibility.

(2) The Commission, or a person or an organization appointed under paragraph (1) shall provide non-discriminatory commercial access to the database on terms and conditions similar to those it offers itself.

(3) The Commission may prescribe, in the Gazette, the manner in which obligations under this regulation may be undertaken.

13.

A licensee who uses numbers or addresses contrary to these Offence and penalty.

Regulations, commits an offence and is liable, upon conviction, to a ne of not exceeding one million shillings or to imprisonment for a term not exceeding ve years or both.

14.

Part IX of the Kenya Communications Regulations, 2001, is Revocation of Part revoked.

IX of LN 68 of 2001 248 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] L.N.

56/2010.

THE KENYA INFORMATION AND COMMUNICATIONS (POSTAL AND COURIER SERVICES) REGULATIONS, 2010 Citation.

1.

These Regulations may be cited as the Kenya Information and Communications (Postal and Courier Services) Regulations, 2010.

Interpretation.

2.

In these Regulations, unless the context otherwise requires basic postal services means a dened set of postal services that are essential for public use including postage stamps, private letter boxes, acceptance, conveyance and delivery of letters weighing up to three hundred and fty grams and postal nancial services; commemorative stamps means postage stamps used as a mark of honour for events or matters of national or international signicance and for philatelic purposes with a validity period of ve years from the date of issue; denitive stamp means stamps depicting nature or natural heritage and which are valid for a maximum of ten years from the date of issue; Extra-Territorial Ofce of Exchange (ETOE) means an ofce of exchange operated by or in connection with a postal licensee outside its national territory; post code means a numeric or other code that identies postal zones and individual post ofces within the country for purposes of simplied mail distribution; postal licensee means the Postal Corporation of Kenya and any other organisation licensed to provide unreserved postal services, including courier companies, transporters, freight, forwarders, delivery companies and direct marketing companies that handle postal articles; reserved postal services means (a) the collection, transportation, sorting, and delivery, for hire or reward of letters and postcards weighing up to three hundred and fty grams, but not including exempted letters sent by licensed courier, letters accompanying goods at the time of delivery, newspapers, magazines, books, non-addressed leaets, catalogues, and trade announcements letters delivered otherwise than for reward, letters delivered by an employee of the sender, letters containing any writ or proceeding from court or any legal instrument of any kind and, letters carried to the premises of a provider of electronic mail service for the purpose of transmission by electronic mail; (b) the production and issuance of postage stamps, prestamped envelopes, aerograms, and international reply coupons bearing the Rev.

2011] Kenya Information and Communications CAP.

411A 249 [Subsidiary] ofcial national coat of arms or the words Republic of Kenya, Kenya, or Kenya Post; and (c) the rental or lease of private letter boxes or bags including use of postal addresses and post codes; terminal dues means remuneration by the administration of the origin of a postal article to the administration of the destination of the postal article; universal postal services means consistent supply of basic postal services at affordable prices at all points within the country; universal service obligations means obligations assumed by the public postal licensee by virtue of a license granted by the Commission under the Act to provide universal postal services; unreserved postal services means courier services, counter services, money orders, electronic bill payment, parcel collection, transport and delivery, expedited mail service, overnight mail services, and other ways of handling postal articles not dened as reserved postal services.

3.

(1) A postal article shall be considered Delivery and acceptance.

(a) to have been delivered to the addressee (i) when it is delivered into a private letter box or bag of the ad- dressee; (ii) when it is left at the house, or ofce of the addressee as set out thereon, or with the employee, agent or any other person authorized to receive it; or (iii) where the addressee is a guest or is a resident at a hotel, hostel or lodging, when it is left with the proprietor or manager of the hotel, hostel or lodging or with his agent; or (b) to have been received by a postal licensee when it is deposited into a posting box or handed over to an employee or agent of a postal service operator authorized to receive it.

Postal licensees to 4.

(1) A postal licensee shall submit to the Commission, for approval, make rules the terms and conditions of the services it offers relating to (a) letters; (b) parcels; (c) documents; (d) nancial services; 250 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (e) registered items; (f) insured items; (g) post restante; (h) private boxes or bags; and (i) any other services as may be introduced by the licensees.

(2) A postal licensee shall, annually, publish the terms and conditions relating to the services prescribed in paragraph (1) that have been approved by the Commission.

Issuance of postage 5.

(1) The public postal licensee shall issue postage stamps that stamps.

(a) are of the best quality; (b) cannot be easily replicated; and (c) are engraved with subjects that are consistent with the broad philatelic objectives of Kenya.

(2) When considering any expedient issuance of denitive commemorative and special stamps and related activities, the public postal licensee shall be fair to all interested parties.

(3) A denitive stamp shall (a) be issued once in every ve years; (b) run for a period of not less than ve years and not exceeding ten years; (c) concern subject matters approved by the Commission at least fourteen days before the issue; and (d) bear face values chosen by the public postal licensee.

(4) A commemorative stamp may be issued at such intervals as the public postal licensee determines to be commercially viable and shall (a) concern a subject matter approved by the Commission at least fourteen days before the issue; and, (b) bear face values chosen by the public postal licensee.

Sale of postage 6.

(1) The public postal licensee may enter into arrangement with any stamps.

person to sell postage stamps on its behalf.

(2) The public postal licensee shall develop standard terms and conditions Rev.

2011] Kenya Information and Communications CAP.

411A 251 for re-sale of stamps and submit them to the Commission for approval.

[Subsidiary] (3) The Commission shall consider the standard terms and conditions of re-sale of stamps submitted under paragraph (2) and communicate its decision to the public postal licensee within thirty days from the date of submission of the request for approval.

7.

(1) Subject to section 73 of the Act, a person shall not Illegal manufacture and unlawful use of (a) without lawful authority, possess any dye, plate, instrument or postage stamps.

contrivance used for the printing of postage stamps sold or used by the public postal licensee; (b) manufacture, or without lawful excuse, possess any dye, plate, instrument or contrivance or part of any such die, plate, instrument, or contrivance or of any materials, for making illegal stamps, or mark in imitation of, or similar to, or purporting to be any stamp or mark of the public postal licensee; (c) without lawful authority, make on any postage stamp any mark in imitation of or similar to or purporting to be any stamp or mark of the public postal licensee; (d) without lawful authority, stamp, mark, obliterate, print over or in any other way alter the original appearance of, or caused to be stamped, marked, obliterated, printed over or in any other manner to be altered the original appearance of any unused postage stamp issued by the public postal licensee.

(2) The Commission shall conscate any dye, plate, stamp, instrument, contrivance, or materials found in the possession of any person in contravention of this regulation.

(3) For purposes of this Regulation, an illegal stamp means any facsimile, imitation or representation, whether on paper or otherwise of any stamp for denoting a rate of postage used by a licensee.

8.

(1) The public postal licensee shall, at the request of the sender of Issuance of an unregistered postal article intended for transmission by letter box, give certicates of the sender a certicate of posting of the postal article upon payment of the posting.

prescribed fee.

(2) A certicate of posting of an article shall not entitle the sender to compensation or to the right of return of an already accepted article and shall not be acceptable as proof of the nature of the contents of the postal article to which it related.

9.

(1) Domestic letters or other postal articles that cannot be delivered Disposing due to an undecipherable or non-existent address or post code may be opened undeliverable postal by a postal licensee and where the letter or article is capable of being delivered articles.

based on information in the letter or article, the postal licensee shall deliver the 252 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] letter or article delivered accordingly.

(2) Where a letter or postal article opened under paragraph (1), is incapable of being delivered, but contains the address of a sender, it shall be returned to the sender.

(3) Every undeliverable postal article that has been opened and remains undeliverable may be kept for a minimum period of three months and may thereafter be destroyed.

(4) Where the letter or postal article opened contains any thing of value or a saleable article, it shall be kept safely and a record thereof opened and maintained by a postal licensee for a period of six months and if not claimed, the contents shall be disposed of in accordance with the Disposal of Uncollected Goods Act.

Cap.

38.

(5) Where a letter or postal article is opened as provided by this regulation, the licensee shall afx a mark on the letter or postal article indicating the (a) date and time of opening; (b) period it has remained undelivered; (c) contents ; and (d) manner the licensee decides to deal with the undelivered article.

(6) Where a letter or postal article is returned to the sender because of being undeliverable as addressed and the sender refuses to take delivery, the letter or postal article shall be dealt with as provided under paragraph (3).

Postal articles of 10.

Where a postal licensee is satised that the addressee of a postal dead persons.

article is dead, it may (a) retain the postal article and on production of the will or letters of administration to the estate of the addressee together with the written application of one or more of the executors or administrators, deliver or release the article in accordance with such request; or (b) treat the postal article in accordance with the provisions of these regulations that relate to undeliverable postal articles.

Prohibited articles.

11.

(1) All postal licensees shall, where applicable before accepting any item for postage, require the sender to declare its contents.

(2) In accordance with section 58 of the Act, a person shall not send, by post (a) any explosive, inammable, dangerous, noxious or deleterious substance, lthy, sharp instrument not properly protected or any article or thing whatsoever which is likely to injure either other Rev.

2011] Kenya Information and Communications CAP.

411A 253 postal articles in the course of conveyance or any person handling [Subsidiary] the article; (b) any article for export, import or carriage which is prohibited under any law in Kenya , or which, being subject to any restriction imposed by such law, is transmitted otherwise than in accordance with that restriction; (c) any article which may not, under the law of the country to which it is addressed, be imported or transmitted by post; (d) any article sent by post in a stamped or embossed envelope wrapper, card forms or paper in imitation of the one issued under the authority of the public postal licensee; (e) any article of such form or colour or so made up for transmission by post or that is likely, in the opinion of the postal licensee, to embarrass the ofcers of the organizations dealing with the article; (f) any article bearing any stamp or impression of a stamping machine denoting payment of postage or fee which is imperfect or mutilated or defaced in any way or across which is written or printed or otherwise impressed.

(g) any article whereon the payment of any postage or fees purports to be denoted by any stamp or impression which has been previously used to denote payment of the postage or fee s on any other postal article or any other stamp duty or tax; (h) betting advertisements relating to illegal business; (i) fortune telling advertisements; (j) sweepstake or lottery tickets, or advertisement and other notices in relating to sweepstake or lottery that are unlawful; (k) money lenders circulars that are enclosed; (l) any article which infringes trade mark or copy right laws; (m) any sample packets consisting of literature for the blind containing any article liable to customs duty in the country or place of destination; (n) any living creature, other than bees, leeches and silk worms, parasites or destroyers for noxious insects; and (o) any other article which, is prohibited from being posted or accepted for transmission by post by the Act or these Regulations.

254 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (3) The prohibited postal articles may, in exceptional circumstances, be sent by post in accordance with the First Schedule to these Regulations.

(4) Any person who contravenes this regulation commits an offence and is liable, on conviction, to a ne not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding one year or both.

Postal security and 12.

A postal licensee shall take reasonable steps to improve mail security safety.

and combat postal crimes that include among others (a) mail violation; (b) mail bombs; (c) illicit drug trafcking or rearms; or (d) other crimes relating to postal articles and property.

Compensation.

13.

(1) A Postal licensee shall develop and le with the Commission its compensation policies for loss or damage of postal articles.

(2) In the case of an insured postal article compensation shall be limited to the market value of the postal article even where it has been insured in excess of its value.

(3) A postal licensee shall not pay compensation (a) where the article is a prohibited article and is not sent as provided under these regulations; (b) in the case is of an insured postal article, where (i) a false statement has been made by the sender or addressee for the postal article; (ii) the addressee of the postal article has signed and returned the delivery note without objection; (iii) any bill of exchange, bond, coupon, or other negotiable se- curity particulars that are required to sufciently identify the contents of the postal article are not presented to the postal licensee; or (iv) the cover or seal of the article bears traces of theft or dam- age.

Use of technology.

14.

A postal licensee shall use appropriate technology to enhance the quality of its services and diversify postal services.

Universal service 15.

(1) The Commission shall from time to time provide targets to postal obligation.

licensees to facilitate the achievement of universal service obligations.

Rev.

2011] Kenya Information and Communications CAP.

411A 255 [Subsidiary] (2) In providing targets for the fulllment of universal service obligations by postal licensees, the Commission shall have regard to (a) measurable quantity and quality of service standards for postal services in relation to customer satisfaction; (b) speed, reliability and security of the service; (c) accessibility to and affordability of universal postal services; and (d) the evolution in technological, economic and social environment.

(3) The provision of universal postal services shall be the responsibility of the public postal licensee.

(4) Notwithstanding paragraph (3) the Commission may require a licensee for unreserved postal services to provide any or universal postal services.

(5) The public postal licensee may provide universal postal services through a contract, an agency or a franchise and Commission shall not require such agent or franchisee to hold a license under the Act.

(6) The public postal licensee shall notify the Commission of any contract, agency or franchise entered into under paragraph (5).

(7) The public postal licensee shall not suspend the provision of basic postal service except in case of a force majeure event including, among others, an act of God, re, ood, explosion, war, strike, embargo, government regulation, civil or military authority.

(8) To the extent necessary to ensure the maintenance of universal service, the Commission may continue to reserve services for public postal licensees.

(9) A licensee who contravenes this regulation commits an offence and is liable on conviction ne of three hundred thousand shillings for every month or part thereof during which such failure continues.

16.

(1) A foreign postal licensee shall not establish an Extra-Territorial Extra-Territorial Ofce of Exchange in Kenya or use the Universal Postal Union system, without the consent of the Commission.

Ofces of Exchange (ETOEs).

(2) Postal articles originating from a foreign country shall be considered to be commercial cargo upon arrival in Kenya and shall be subject to customs clearance procedures.

(3) Postal articles delivered by a foreign postal licensee to an address in Kenya, shall pay the terminal dues applicable under the Universal Postal Union system.

17.

A person who contravenes these Regulations commits an offence and 256 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] Penalty.

is liable, where no penalty is provided, to a ne not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.

Revocation of Part X 18.

Part X of the Kenya Communications Regulations, 2001, is of L.N.

68 of 2001 revoked.

FIRST SCHEDULE (r.

11 (3)) Article Qualication for acceptance a.

Dangerous drugs.

By insured box or by insured parcel post and only if sent for medical or scientic purposes to the country, which admits them when sent for those purposes.

b.

Live bees, leeches silk By letter post if addressed to ofcially worms, parasites or recognized institutions.

destroyers of noxious insects used for the purposes of controlling those insects.

c.

Any postal article By the inland service.

enclosed in an envelope with an open panel.

d.

Paper money not crossed For transmission by the inland service for payment solely by registered letter or registered through Post Bank.

parcel post for transmission by the international service by registered letter post, insured letter post, or insured parcel post.

e.

Jewellery and other By registered letter post of insured valuables.

parcel, or insured box.

f.

Any postal article bearing By registered post.

the word registered or any other phrase to that effect and any article which by these regulations is required to be registered or subject to the provisions of these regulations and is of a monitory value.

Rev.

2011] Kenya Information and Communications CAP.

411A 257 g.

Deleterious liquids By letter post at the letter rate of postage [Subsidiary] perishable biological only if sent for medical examination substances or other similar or analysis to a recognized medical substances.

practitioner or qualied veterinary surgeon.

Inammable liquids Having a ash point of thirty h.

two degrees centigrade or above but lower than sixty ve degrees centigrade, maximum amount of one litre i.

Padiative liquids Small quantities suitable packed, provided that when made up for the post radiation measured at the outside surface of a package does not exceed ten miliroentgen per twenty four hours by letter post at the letter rate of postage.

j.

Any article liable to customs To countries which permit by law duty.

or regulations, the importation of such articles by post and by registered post if the law or regulations of the country or place of destination so requires.

k.

Advertisements and If addressed to a qualied medical publications relating to the practitioner or chemist treatment of general diseases or to any preparations for its prevention, care or relief.

258 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] L.N.

57/2010.

THE KENYA INFORMATION AND COMMUNICATIONS (IMPORTATION, TYPE APPROVAL AND DISTRIBUTION OF COMMUNICATIONS EQUIPMENT) REGULATIONS, 2010 Citation.

1.

These Regulations may be cited as the Kenya Information and Communications (Importation, Type Approval and Distribution of Communications Equipment) Regulations, 2010.

Interpretation.

2.

In these Regulations, unless the context otherwise requires communication equipment means telecommunication equipment, radio communication equipment or broadcasting apparatus; national standards means the Kenya standards established by consensus and approved by the Kenya Bureau of Standards, that provide, for common and repeated use, rules, guidelines or characteristics for products and services and related processes or production methods, aimed at achieving the optimum degree of order in a given context including terminology, symbols, packaging, marking or labeling requirements as they apply to a product, process or production method; operating network means a network that can carry communications trafc in the form of voice or data; service provider means a person providing communication services under the Act; type acceptance means the process of evaluating communications equipment that has been type approved by a recognized foreign national regulatory authority with a view to ensure conformity of such equipment to national standards; type approval means a method of checking the compatibility of communications equipment with any operating communication network and the conformance of such equipment to national standards.

Equipment subject to 3.

(1) All communications terminals, network equipment and type approval.

communications equipment to be used for connection or access to the public operating communication networks, wireless communications equipment and radio communications equipment intended to be connected directly or to inter work with a communications network in Kenya to send, process or receive information shall prior to their use be submitted for type approval or type acceptance by the Commission.

(2) The Commission shall grant type approval for each type of equipment once, and subsequent users of the same type of equipment shall not apply to the Commission for approval.

(3) Notwithstanding paragraph (2), where there is a change of model, design or specication of equipment which had been type approved by the Commission, the equipment shall be re-submitted for type approval.

Rev.

2011] Kenya Information and Communications CAP.

411A 259 [Subsidiary] (4) The Commission shall conduct type approval in accordance with the procedures for type approval of communication equipment in Kenya as it publishes from time to time.

4.

A service provider shall submit its application for approval or type Application for type acceptance of communications equipment in prescribed forms issued by the acceptance.

Commission.

5.

(1) The Commission may not return to an applicant any samples of Evaluation.

equipment and associated literature submitted for the purpose of type approval or acceptance.

(2) The Commission shall evaluate an application and communicate its decision to the applicant within sixty days from the date of receipt of the application.

(3) Where the Commission does not communicate its approval or refusal within the period prescribed in paragraph (2), the Commission shall be deemed to have approved the application.

6.

(1) The Commission may type accept any equipment that has been Type acceptance.

granted type approval from another country or jurisdiction that is recognized by the Commission.

(2) Notwithstanding paragraph (1), an applicant for type acceptance shall submit a sample or samples of the equipment and copies of test results and type approval certicate from that country or jurisdiction at the time of the submission of the application for provisional acceptance.

(3) The Commission may, on its own initiative or upon an application by a service provider, conduct inquiries to determine whether technical standards from other countries or jurisdictions should be recognized in Kenya for purposes of exempting any equipment from type approval or testing requirements.

7.

(1) Any person may submit equipment for provisional type approval Provisional type by the Commission.

approval.

(2) Notwithstanding paragraph (1), licensed vendors shall submit equipment intended for commercial purposes for type approval.

(3) Where the Commission has determined that equipment that is the subject of an application for provisional type approval complies with the provisional type approval requirements, the Commission may grant provisional type approval for a period not exceeding six months on such terms and conditions that it may determine.

(4) When granting provisional type approval to equipment, the Commission may, where it considers it necessary, limit the number of units of that equipment that an applicant can hold and utilize until the nal type approval is granted.

260 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] Final type approval.

8.

(1) An application for nal type approval shall be made before the expiry of the provisional type approval period and shall indicate the date of grant of provisional approval.

(2) No provisional type approval shall lapse or expire while an application for nal type approval is pending at the Commission.

(3) The Commission shall grant nal type approval where it is satised that the grant of the nal type approval (a) is in the public interest; and (b) will not lead to harmful interference to any communications and radio communication network or be a risk to human health or the environment.

(4) The Commission shall inform the applicant in writing of the nal type approval of equipment or apparatus.

(5) Where the Commission is of the view that an equipment or apparatus should not be type approved, it shall notify the applicant, in writing, of its decision and state the reasons for the refusal.

(6) The Commission shall, from time to time, publish a list of all type approved equipment.

Technical evaluation.

9.

(1) The Commission shall carry out technical evaluation of equipment by document examination and where applicable laboratory testing of equipment sample, and in accordance with the procedures for type approval and acceptance of communication equipment in Kenya which the Commission shall publish from time to time.

(2) The samples of equipment submitted shall be (a) in a good working condition; (b) properly congured for testing and complete with the necessary test adapters; and (c) clearly marked with the trade name, model and serial number.

(3) Where the Commission requires clarication on the technical details or other specications of the equipment submitted for type approval or acceptance, it shall notify the applicant and require the applicant to respond in the required manner within the time specied by the Commission.

(4) An application for type approval or type acceptance shall be rejected or deemed to have been rejected by the Commission if the applicant fails to respond within three months from the date of the Commissions request for details or clarications.

Rev.

2011] Kenya Information and Communications CAP.

411A 261 [Subsidiary] 10.

(1) The Commission shall issue a provisional or nal type approval Type approval certicate to the successful applicant for a specic model of equipment.

certicate (2) The communication equipment to be sold or used shall be of the same model that was granted the type approval and not modied in any way without the approval of the Commission.

(3) The grant of type approval under this Regulation shall not be construed as a guarantee for the proper functioning, performance or quality of the equipment by the Commission.

(4) A supplier, importer or distributor shall ensure that the approved equipment inter-works properly with the public electronic communication network.

(5) The Commission shall not be liable for interference caused to other equipment, injury, or loss of life, or damage to property, arising as a direct or indirect result of the use of any approved equipment.

(6) Where there is doubt relating to the interpretation of a type approval specication, the method of carrying out the test or the validity of the statements made by the manufacturers of the equipment, the interpretation of the Commission shall be nal.

11.

(1) A supplier, importer or distributor shall, before selling any Connection of type communication equipment, ensure that the equipment meets the standards and approved terminals to specications set out by the Commission and is compatible with the public the public electronic communications networks.

communications (2) A service provider shall not connect type approved communication network.

equipment to public networks before the equipment is inspected by the Commission and network operators.

(3) A network operator shall not have the right to refuse connection to type approved equipment.

12.

(1) A service provider shall afx a type approval label in all its Type approval label communications terminal or network equipment.

for terminal or network equipment.

(2) Every supplier, importer or distributor shall ensure that all equipment offered for sale or private use have valid type approval or type acceptance certicates issued by the Commission and is clearly afxed with a type approval label issued by a recognized Commission containing (a) the logo of the Commission; (b) the type of the equipment; and (c) the alphanumeric identications of the equipment.

262 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] Revocation of type 13.

(1) The Commission may, on its own motion or upon a complaint by approval of device.

any person, conduct investigations regarding the operation or use of equipment or apparatus that has been granted provisional or nal type approval and may revoke the type approval where it is satised that- (a) the holder of a nal or provisional type approval certicate has violated its conditions; or (b) the equipment or apparatus is causing or is likely to cause harmful interference to communications network or is a risk to human health or the environment.

(2) Any person who is aggrieved by the decision of the Commission made under this Regulation may appeal to the Appeals Tribunal.

Complaint procedure.

14.

(1) Any person may make a complaint in respect of the working of any equipment that has been type approved or object to the type approval of any equipment by submitting a complaint or objection to the Commission in writing stating (a) the name and address of the complainant; (b) the name and address, if known, of the person against whom the complaint is made; and (c) the facts, including supporting data, where available, showing that the apparatus does not conform to these Regulations and that the apparatus may cause harmful interference to communications network or is a risk to human health or the environment.

(2) The Commission shall forward a copy of the complaint or objection to the applicant or holder of a type approval certicate and give the applicant or holder an opportunity to give evidence to rebut the complaint or objection.

(3) The Commission shall consider any complaint or objection received when considering the application for type approval or in evaluating the operation of equipment for that has been granted type approval.

Installation of 15.

(1) No person other than a communications technician registered with approved equipment.

the relevant regulatory authority shall install type approved equipment.

(2) Notwithstanding paragraph (1), where the installation is done by any other person, the installation shall be certied by a communications engineer registered with the relevant regulatory authority.

Exemptions from type approval.

16.

The Commission may, where it deems expedient, exempt any communications equipment that is temporarily imported into Kenya for re- export from type approval requirements.

Conditions for importation and 17.

(1) A person shall not supply, import or distribute electronic communications equipment unless that person has a licence granted by the Rev.

2011] Kenya Information and Communications CAP.

411A 263 Commission.

[Subsidiary] distribution.

(2) A licensed supplier, importer or distributor of electronic communications equipment shall ensure that- (a) the equipment is type approved by the Commission; and (b) customers for radio communications equipment have radio communications licences from the Commission.

(3) Notwithstanding paragraph (1), a person may import into Kenya any type approved terminal electronic communication equipment where the equipment is solely for personal use.

(4) A person shall not sell electronic communication equipment sell at a place other than a shop or a distribution centre of a licensed supplier, importer or distributor.

18.

(1) The Commission shall from time to time publish a list of prohibited Lists of equipment.

equipment.

(2) A service provider shall not supply, import or distribute for use any equipment prohibited by the Commission.

19.

(1) A supplier, importer or distributor who wishes to import and re- Re-exportation of package equipment for re-exportation or transshipment shall apply for a permit equipment.

from the Commission.

(2) Prior to the importation of any equipment under this regulation, the supplier, importer or distributor shall furnish or cause to be furnished to the Commission full particulars of the respective equipment and the business the supplier, importer or distributor is involved in.

(3) A supplier, importer or distributor who imports and repackages equipment for re-exportation or transshipment, equipment imported without a permit issued under paragraph (1) commits an offence.

20.

The Commission shall not issue a permit to a supplier, importer or Capacity of distributor unless the Commission is satised that the supplier, importer or the importer or distributor distributor.

(a) is capable of conducting the business; (b) has qualied and competent technical and supporting staff; (c) has a suitable shop or distribution centre; and (d) meets any other criteria determined by the Commission.

21.

The Commission may in consultation with the relevant Government Import and sale restrictions.

agencies, restrict the importation or sale within Kenya of any communications 264 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] or other apparatus, where it is of the opinion that the equipment or apparatus may cause damage or harmful interference to communications networks or is a risk to human health or the environment.

Power to inspect.

22.

An authorized ofcer of the Commission may at reasonable times enter premises on which a supplier, importer or distributor is keeping imported communications equipment for the purposes of inspecting the equipment.

Disposal of 23.

(1) The equipment which has been brought for type approval and equipment.

which due to destructive tests or other reasons the Commission determines as not being suitable for return to the applicant, may be destroyed by the Commission after giving thirty days notice for objection to the applicant.

(2) A person who is aggrieved by the decision of the Commission made under this Regulation may appeal to the Tribunal.

Offence and Penalty.

24.

(1) A person who deals in or uses equipment without type approval or acceptance in accordance with these Regulations commits an offence.

(2) A person who is convicted of an offence shall on conviction be liable to a ne not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.

Revocation of Part 25.

Part VIII of the Kenya Communications Regulations 2001 is VIII of LN 68 of revoked.

2001.

Rev.

2011] Kenya Information and Communications CAP.

411A 265 [Subsidiary] THE KENYA INFORMATION AND COMMUNICATIONS L.N.

58/2010.

(RADIO COMMUNICATIONS AND FREQUENCY SPECTRUM) REGULATIONS, 2010 1.

These Regulations may be cited as the Kenya Information and Citation.

Communications (Radio Communications and Frequency Spectrum) Regulations, 2010.

Interpretation.

2.

In these Regulations, unless the context otherwise requires authorised frequency means the frequency assigned to a station by the Commission; harmful interference means radiation or induction which (a) endangers the functioning of a radio-navigation service or of a safety service; or (b) obstructs or repeatedly interrupts an authorised radio or telecommunication service; licensee means a person licensed under the Act; network means two or more stations operated by a person and used or intended to be used in communication with one another; radio emission means any emission of electromagnetic energy of frequencies currently less than three hundred Gigahertz without continuous articial guide or such other frequencies as the Commission may from time to time publish in the gazette; spectrum assignment means the authorization by the Commission to any licensee specic frequencies or frequency pairs for use within a given allocation, at specied geographic location; station means a transmitter, receiver, a combination of transmitters and receivers or any accessory thereto which is used or intended to be used for radio-communication; transmitter means anything, irrespective of its use, function or the purpose of its design, that is capable of radio emission; user means any person or body of persons who uses or operates radio communication services.

3.

The purpose and objective of these Regulations is to Purpose and Object.

(a) promote and support the orderly development and efcient operation of radio communication systems and services to meet the countrys socio-economic, security and cultural needs; 266 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (b) ensure proper planning, utilization and management of the spectrum resource in accordance with the Act, Government of Kenya Policy objectives, international agreements; (c) promote the efcient use of frequency spectrum resource through the adoption of latest technical advances and efcient spectrum allocation and management technology based on operational requirements and technical viability; (d) ensure the equitable and fair allocation and assignment of spectrum to benet the maximum number of users.

Eligibility for 4.

The Commission shall publish guidelines that shall specifying the licenses.

persons eligible and eligibility criteria for the grant of spectrum licences from time to time.

General licensing conditions.

5.

(1) A person shall not possess, establish, install or use any radio communication station which requires licensing under these Regulations in any place or on board any local vessel, aircraft or vehicle, unless that person has a valid licence granted by the Commission.

(2) A radio communication licence shall not confer any ownership rights of the frequency on the licensee.

(3) A licensee shall not transfer frequencies assigned and the rights therein without the written consent of the Commission.

(4) A licensee shall comply with the provisions of the International Telecommunications Convention.

(5) Where the authorization is for a period not exceeding one month, the Commission may grant temporary authorization for the utilization of the frequency spectrum and the minimum applicable fee will be for a period of one month.

Application criteria for approval.

6.

(1) The Commission shall, when considering an application for frequency assignment, take into consideration (a) spectrum availability for the type of service and proposed location; (b) whether the proposed service can be satised by any other means of communication; (c) the distress and safety radio communication services which require protection from harmful interference; and (d) the current technical advances that ensures the most efcient spectrum use.

(2) The Commission may assign a frequency or frequencies to the Rev.

2011] Kenya Information and Communications CAP.

411A 267 [Subsidiary] applicant, and shall for that purpose take into account all technical data of the equipment and associated accessories that the applicant is proposing to use.

7.

(1) The Commission may assign frequencies when it is satised that Assignment of such assignment will not cause harmful interference to any station or licensee frequencies.

operating in accordance with the Kenya table of frequency allocations.

(2) A person licensed to operate and provide radio communication systems and services shall apply to the Commission, for the assignment of the necessary frequencies.

(3) Where the Commission is satised with an application, it may assign the applicant a frequency, which the applicant shall use in accordance with the prescribed technical and operating parameters.

(4) Where the frequencies applied for are not available, the Commission may assign frequencies in an alternative frequency band.

(5) The Commission may impose such conditions as it may consider necessary for the use of the assigned frequencies.

8.

(1) A licensee who has been assigned frequencies bands for use Obligations of shall licensees.

(a) maintain and provide, at the Commissions request, an inventory of frequencies assigned; (b) keep the licence in force by regular payment of annual fees prescribed by the Commission from time to time; (c) put into use the assigned frequencies within the period specied by the Commission; (d) use such measures as may be prescribed by the Commission to eliminate unauthorized emissions, harmful interference or illegal use of the spectrum; (e) optimize the utilization of frequency spectrum resource in the manner prescribed by the Commission from time to time; and (f) implement all the measures prescribed by the Commission from time to time.

(2) The Commission may where it considers it necessary, require a licensee to migrate to a new frequency band.

(3) The Commission shall implement the migration through an arrangement that shall not impose unreasonable burden to the licensee involved.

(4) A licensee shall not make material change to a licensed station or change the station parameters specied in the licence, without a written 268 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] authorization from the Commission.

(5) A licensee shall require the written consent of the Commission where a licensee proposes to (a) increase the height of a structure supporting the radiating portion of the antenna; (b) relocate an antenna where such relocation would involve a change in the geographic co-ordinates of latitude or longitude by as much as one second, or relocation involves a change in street address; (c) change in antenna parameters, including height, number of antenna elements, radiation pattern or polarization.

(6) All licensees shall, unless exempted by the terms of authorization, transmit the assigned call sign at the end of each complete transmission.

(7) The transmission of the call sign at the end of each transmission shall not be required in cases of projects requiring continuous, frequent or extended use of the transmitting apparatus, if, during the periods and in connection with the use, the call sign is transmitted at least once every thirty minutes.

9.

(1) The Commission may, where necessary, require a licensee to share Sharing of a frequency.

frequencies.

(2) The Commission shall implement the sharing through an arrangement that shall not impose unreasonable burden to the licensee involved.

Frequency spectrum 10.

(1) The Commission may from time to time prescribe the methods pricing.

of determining frequency spectrum pricing.

(2) The Commission shall not avail frequency spectrum licences to a licensee unless the licensee has paid frequency spectrum licence fees and complies with the conditions imposed by the Commission.

(3) The Commission may recall frequencies assignments that have not been utilized within the period specied in the licence.

(4) Where a frequency assignment is recalled for non-utilization, the licence fee paid in accordance with paragraph (2) shall not be refunded.

Pricing parameters.

11.

(1) The Commission shall adopt a pricing formula that reects the economic value of frequency spectrum in order to encourage efcient use of frequency spectrum and stimulate growth.

(2) The pricing formula adopted under paragraph formula shall take into account the following factors (a) size of spectrum assigned; Rev.

2011] Kenya Information and Communications CAP.

411A 269 (b) frequency band and level of congestion within the band; [Subsidiary] (c) market demand; (d) power output and; (e) geographical usage; and (f) such other factors as the Commission may from time to time determine (3) The Commission shall review and publish the pricing formula for frequency spectrum at least once in every three years.

12.

(1) A licensee shall not use any frequency spectrum unless the radio Type approval and equipment in respect of which an assignment is sought has been duly type inspection.

approved or type accepted by the Commission.

(2) Upon installation of the radio communication system, the licensee shall ensure that the system is inspected and certied by the Commission to be operating in accordance with the Act and the Regulations made thereunder.

13.

(1) The Commission shall monitor all emissions from licensed stations Monitoring and inspection.

to ensure the efcient utilization and compliance with licensed parameters.

(2) The licensee shall permit unlimited access by the Commissions authorized ofcers to the licensees installations at reasonable times for the purposes of inspection and verication of operational parameters.

(3) The owners and management agents of buildings shall (a) require proof of licences and authorization from the Commission before authorizing the installation of any radio communication systems in their premises; (b) keep records of all equipment installations; and (c) permit unlimited access by the Commissions authorized ofcers to the licensees installations for the purposes of inspection and verication of operational parameters.

(4) A licensee shall, when requested to do so, make available all records that relate to a stations operations to the Commissions authorized ofcers.

(5) A licensee shall report any interference experienced to the Commission, in writing.

(6) Where the Commission, pursuant to a report made to it or on its own accord, is of the view that certain measures need to be undertaken to avoid or mitigate any interference, the Commission may require a licensee or a class of licensees, in writing, to take the measures specied.

270 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] 14.

(1) A licensee of a radio station that has an antenna structure shall Inspection, sitting and maintenance paint and illuminate the tower, perform routine inspections and maintenance of illuminated of the tower to ensure that it is properly marked and illuminated and on any towers and control other associated control equipment, required.

equipment.

(2) All licensees shall comply with directions given by the Commission in consultation with the government agency responsible for civil aviation, in matters relating to antenna towers.

(3) All licensees shall ensure that the sitting of antennas and towers comply with all applicable laws to which they are subject to.

(4) All licensees shall ensure that the sitting and installation of transmitters, antennas and towers comply with the laws and guidelines relating to radiation limits that may be in force from time to time.

Radio spectrum 15.

Where the Commission is of the opinion that a radio operation or management and structure may cause harmful interference to its operation, the Commission monitoring facilities.

may restrict the installation or operation of radio communications apparatus or erection of structures within a specied area from the Commissions radio monitoring facilities.

Disposal of 16.

(1) The Commission may disable or conscate any radio uncollected goods.

communication apparatus or stations operated in contravention of the conditions of its licence or in contravention of the Act and these Regulations.

(2) The conscated equipment or apparatus may, if not collected by a licensee, be disposed of in accordance with laws governing disposal of uncollected goods.

Misuse of 17.

(1) A licensee who uses any radio communication station for frequencies.

or in furtherance of unlawful conduct, commits an offence and is liable, upon conviction, to a ne not exceeding One Million Kenya Shillings or to imprisonment for a term not exceeding ve years or both.

(2) Any person who, upon receiving a request for information concerning the use of frequency spectrum from the Commission, fails to disclose the information or gives false or misleading information commits an offence and is liable, on conviction, to a ne not exceeding one million shillings or to imprisonment for a term not exceeding ve years or both.

Amount of 18.

The Commission may prescribe the minimum or maximum number frequencies or amount of radio communication channels or frequencies which any user or licensee may be granted.

Revocation of Part 19.

Part VI of the Kenya Communications Regulations 2001 is VI of L.N 68 of 2001 revoked.

Rev.

2011] Kenya Information and Communications CAP.

411A 271 [Subsidiary] THE KENYA INFORMATION AND COMMUNICATIONS L.N.

70/2010.

(UNIVERSAL ACCESS AND SERVICE) REGULATIONS, 2010 1.

These Regulations shall be cited as the Kenya Information and Citation.

Communications (Universal Access and Service) Regulations, 2010.

2.

In these Regulations, unless the context otherwise requires Interpretation.

Advisory Council means the Universal Service Advisory Council established under section 102A of the Act; designated population means individuals, households, groups, communities or institutions determined by the Commission, from time to time to be the target beneciaries of universal access; Fund means the Universal Service (US) Fund established under section 84 J of the Act ; licensee means any person licensed under the Act; operating plan means a plan prescribed by the Commission for the implementation of specic universal service programs and projects; subsidies means assistance granted to support universal service programmes and projects; universal access means access of one hundred percent by adesignated population that can obtain, at the minimum, public access to quality and affordable communication systems and services; universal service means access of one hundred percent by a designated population that is reasonably able to privately subscribe to and use particular communication systems and services of a specied quality on an individual, household or institutional basis including, among others, to the provision of (a) public voice telephony; (b) internet access; or (c) other services by which people access efcient, affordable and modern communications systems and services; unserved areas means geographic areas where no designated level of universal access is currently available; Universal Service Levy means a levy charged by the Commission on licensees for purposes of the Universal Service Fund; universal service programs means the general macro-level universal service initiatives aimed at achieving one or more of the universal service 272 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] objectives.

universal service projects means the specic micro-level implementation activities related to each Universal Service Program.

Purpose and object.

3.

(1) The purpose of these Regulations is to provide a regulatory framework for the design and implementation of universal access and service provision and for the administration of the Universal Service Fund in Kenya.

(2) Without prejudice to the generality of section 84J of the Act, the objectives of the Universal Service Fund shall be to (a) encourage efcient access to and use of communications systems and services throughout the Republic of Kenya, focusing on rural, remote and under-served areas in order to promote social, and economic development; (b) ensure reasonable availability and affordability of basic and advanced communications systems and services to personswith disabilities, at the household and individual levels, particularly where the market is unable to deliver such services in a nancially viable manner; (c) support the development of information and communication technologies, including related human capacity and technological innovation; (d) provide support for the introduction and expansion of communication services to schools, health facilities and other organizations serving public needs; and (e) facilitate development of and access to a wide range of localand relevant content.

Amount of the 4.

(1) The Universal Service Levy imposed under section 84J (3) of the Universal Service Act shall be charged on all licensees offering communications systems and Levy.

services on a commercial basis.

(2) The levy charged on licensees shall be an amount not exceeding one percent of the gross revenue of a licensee.

Purpose of the 5.

The funds from the Fund may be applied in activities that support Universal Service national communications development programmes including, among Fund.

others (a) funding universal service programmes and projects; (b) identifying, approving, scheduling and nancing privatesector and local community investments in universal service provision projects; and Rev.

2011] Kenya Information and Communications CAP.

411A 273 [Subsidiary] (c) the conduct of research and other relevant studies in information technologies.

6.

The Commission may fund universal service programmes and projects Manner of funding.

through (a) subsidies; (b) loans; and (c) grants.

7.

When identifying the projects to be funded by the Universal Service Identication of projects to fund.

Fund, the Commission (a) shall promote the establishment of efcient, self-sustaining projects, that will expand access to communications systems and services on their own initiative and with minimal funding; (b) may support projects that are not economically feasible without support of the Fund; (c) may support projects to the extent necessary to create adequate economic incentives for investors.

Management of the 8.

Pursuant to section 84J of the Act, the Commission shall collect and Fund.

disburse the funds of the Fund in accordance with the Act and (a) establish administrative mechanisms, systems and structures for proper management of the Universal Service Fund; (b) supervise and provide broad policy directions for the management of the Fund and Universal Service Programs; (c) develop specic indicators of communications access; (d) as far as practicable, apply a competitive selection process to select beneciaries of the Fund; (e) develop appropriate socio-economic criteria for identifying the geographical areas, population groups, institutions and organizations that may be eligible to benet from the Fund; (f) develop criteria for evaluating project proposals for funding; (g) monitor and evaluate the fund projects; and (h) formulate the annual operating plans of the Fund.

9.

The Universal Service Advisory Council shall Universal Service Advisory Council.

274 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (a) advise the Commission and provide strategic policy guidance for the implementation of the Universal Service Fund; and (b) perform any other functions assigned to it by the Board from time to time and as necessary for the implementation of these Regulations.

Fund Accounts.

10.

(1) The Commission shall deposit the funds of the Fund monies in one or more accounts established in one or more reputable banks in Kenya.

(2) The Commission shall maintain a separate account for the Universal Service Fund and shall keep proper books of accounts and records of the operations of the Fund.

(3) The accounts of the Fund may at any time and shall at the end of each nancial year, be audited by an independent auditor.

Annual Report.

11.

(1) The Commission shall, within three months after the end of the nancial year, prepare and submit to the Minister an annual report containing (a) the audited nancial statements of the Fund; and (b) details of activities supported by the Fund (2) The Annual Report shall also be available for public inspection at such times and in such manner as the Commission shall prescribe.

Investment of the 12.

The Commission may invest or apply the funds of the Fund funds of the Fund.

towards (a) xed bank deposits; (b) Government securities; or (c) any other investments approved by the Commission and inaccordance with applicable nancial Regulations.

Power to issue 13.

The Commission may, from time to time, issue guidelines relating guidelines.

to the management of the fund.

Rev.

2011] Kenya Information and Communications CAP.

411A 275 [Subsidiary] THE KENYA INFORMATION AND COMMUNICATIONS L.N.

71/2010.

(LICENSING AND QUALITY OF SERVICE) REGULATIONS, 2010 1.

These Regulations may be cited as the Kenya Information and Citation.

Communications (Licensing and Quality of Service) Regulations, 2010.

2.

In these Regulations, unless the context otherwise requires Interpretation.

contact address means the physical address, telephone number, facsimile number and email address of a licensee or an applicant forlicence; licence means a licence issued under the Act; licensee means a person or an entity licensed by the Commission to provide any communication services; market structure describes the state of a telecommunications market in relation to competition.

3.

(1) The Commission may, from time to time, publish details of the Market structure.

communications market structure prevailing in the country.

(2) The Commission shall, when issuing licences, consider the market structure.

4.

(1) A person who wishes to operate any communication system or Application for provide a communications service requiring a licence under the Act, shall apply licence.

to the Commission for a licence.

(2) An application for a licence under these Regulations shall in the manner and form prescribed by the Commission.

(3) An entity applying for a licence under these Regulations shall ensure that its shareholding conforms to the prevailing communications sector policy.

(4) An applicant for a licence shall submit to the Commission (a) registration or identication documents prescribed by the Commission; (b) the applicants contact address; (c) where applicable, a detailed business plan for the proposed services; (d) detailed information relating the proposed system or services to be provided; (e) where applicable, information relating to the previous experience in the management of the proposed system or the provision of the 276 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] services for which a licence is sought; and (f) any other information that the Commission may require.

Failure to submit 5.

(1) Where an applicant fails to submit all documents or information documents or required under these Regulations the Commission shall reject the application information.

and inform the applicant, in writing, of the rejection.

(2) Where the Commission rejects an application due to incomplete or insufcient information, the rejection shall not, except where a tender process is involved, bar the applicant from re-submitting the application.

(3) The Commission shall treat the re-submitted application as a new application.

Granting of licences.

6.

Upon the completion of the application process, the Commission shall, if it is satised that the applicant has complied with the requirements under these Regulations, issue a licence to the applicant.

License terms and 7.

(1) The Commission may specify the terms and conditions of a conditions.

licence consistent with the provisions of the Act, Regulations and other relevant circumstances.

(2) A licensee shall comply with all terms and conditions of its licence.

8.

A licensee shall Notication of change of particulars.

(a) notify the Commission of its intention to change the name or contact address it led with the Commission at least thirty days before effecting such change; and (b) notify the Commission and the public of any trade or brandname it intends to use at least thirty days prior to using the trade or brand name.

Change in 9.

(1) A licensee shall ensure that its shareholding complies, at all times shareholding.

with the Governments Communications Sector Policy, published from time to time.

(2) A licensee shall notify the Commission of any proposed change in ownership, control or proportion of shares held in it, at least thirty days before the change is effected.

Provided that (a) any change in shareholding exceeding fteen per centum of the issued share capital; or (b) the acquisition by an existing shareholder of at least ve per centum of additional shares; shall require the prior written consent of the Commission and the Commission Rev.

2011] Kenya Information and Communications CAP.

411A 277 [Subsidiary] shall notify the applicant of its acceptance or refusal, stating the reasons for its decision, within thirty days of receipt of the request for consent.

10.

(1) A licensee shall not transfer or assign a licence granted under the Transfer or Act without the written consent of the Commission.

assignment of a licence.

(2) The Commission may, when considering an application for the transfer or assignment, consider the same requirements and terms as if considering an application for the grant of a new licence.

(3) The Commission shall communicate its decision on an application for the transfer or assignment of a licence to an applicant within thirty days of receipt of the application and state the reasons for the decision.

11.

(1) A licensee shall make an application for the renewal of its licence Renewal of a licence.

in accordance with the procedure specied in each licence.

(2) When considering an application for renewal of a licence, the Commission shall consider the extent of compliance, by the licensee, with the terms and conditions contained in the licence in the previous licence period.

12.

(1) The Commission may revoke a licence in accordance with the Revocation of Act.

licences.

(2) Any person who is aggrieved by the decision of the Commission made under this regulation may appeal to the Tribunal within thirty days from the date of the decision.

Obligations of a 13.

(1) A licensee shall, in addition to the terms and conditions of the licensee to provide licence quality of service.

(a) improve service quality, by identifying service deciencies and making appropriate changes; (b) maintain service quality, while considering environmental and operating conditions; (c) avail information to ensure informed subscriber choice of services and licensees; (d) improve the operation and performance of interconnected networks; and (e) assist in the development of related communications markets.

Principles for 14.

(1) The Commission shall, when developing quality of service developing quality of standards, ensure that service standards.

(a) the parameters related to quality of service are clearly dened and measurable; 278 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (b) information about the standards relating to quality of serviceare sufcient, comparable and accessible; (c) communications infrastructure and services are compatible with international standards; (d) practices increasing the user satisfaction and decreasing usercomplaints are encouraged; (e) discrimination, relating to the quality of the service offered, between similar users is avoided; and (f) special needs of disabled users are also considered when developing quality of service parameters.

Quality of service 15.

The quality of service standards under these Regulations may be standards.

determined based on (a) parameters, dening the applicable quality of service measurements for specic services; (b) methods of measuring service performance against predetermined parameters; (c) measurable service characteristics of parameters determined by the Commission; and (d) any applicable targets for parameters identied by the Commission from time to time.

Measurement, reporting and record 16.

(1) The Commission shall, from time to time, publish a notice in the keeping.

Gazette prescribing quality of service parameters that licensee are to measure and report on to it.

(2) The notice published under paragraph (1) shall specify measurement and reporting intervals for quality of service parameters prescribed by the Commission.

(3) A licensee shall, for each parameter prescribed by the Commission under paragraph (1) (a) take measurements using the method specied for the parameter; (b) compile, summarize and submit the measurements to the Commission, in the prescribed format and within the specied period; (c) submit any additional information required by the Commission, including details of the times, places and other particulars of the measurements, as the Commission mayfrom time to time direct; and Rev.

2011] Kenya Information and Communications CAP.

411A 279 [Subsidiary] (d) retain all quality of service data, including all measurements and related records, for a minimum of twelve months afterthe reporting period or as the Commission may, from time totime, direct.

17.

The Commission may inspect or investigate matters relating to the Inspections and investigations.

measurement of quality of service, of a licensee from time to time to ensure compliance.

Publication of reports 18.

The Commission may publish measurement results or the quality of on measurements of service reports submitted by licensees.

quality of service.

Telecommunications 19.

(1) The Commission shall, before issuing a licence to a contractors.

telecommunications contractor under these Regulations, consider (a) the applicants ability to conduct the business; and (b) the competence of the technical staff undertaking to its works.

(2) A telecommunications contractor shall, when undertaking works ensure, that the work complies with guidelines issued by the Commission from time to time and any other internationally acceptable standards prevailing.

(3) The Commission may revoke the licence of a telecommunications contractor who contravenes paragraph (2).

Approvals from other 20.

Notwithstanding that a licence has been issued by the Commission, authorities.

a licensee shall bear the responsibility of obtaining the approvals of other Government agencies, local authorities or other relevant authorities that may be required for the provision of the licensed services, installation, placement, laying or maintenance of any facilities on, through, under or across any land.

Duty of care.

21.

(1) A licensee shall, when installing its facilities, take all reasonable steps to ensure that it causes as little detriment or damage, and inconvenience to the public, as is practicable in the circumstances.

(2) If a licensee engages in any activity relating to any land underthese Regulations, the licensee shall take all reasonable steps to restore the land to the condition it was before the activity began.

(3) A licensee shall, when installing its communications systems, take all reasonable steps to (a) observe international standards and practices; (b) protect the safety of persons and property; (c) protect the environment; and (d) ensure that the activity does not adversely interfere with 280 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (i) the operations of a public utility; (ii) public roads and paths; (iii) the movement of trafc; and (iv) the use of land.

(4) A licensee shall enter into an agreement with any public utility whose operations are likely to be affected by an activity of thelicensee, to provide for the most convenient manner in which thelicensee shall engage in that activity.

Validity of 22.

Where one or more of the provisions of any licence, for any reason Provisions.

becomes invalid or unenforceable, the validity or enforceability of the other provisions of the licence shall not be affected.

Transitional 23.

(1) When the Commission introduces a new licensing framework, a provisions.

person holding a licence issued under the former licensing framework (in this section referred to as an old licensee)shall continue to hold the licence in accordance with its terms and may migrate to the new licensing framework in accordance with the migration modalities issued by the Commission.

(2) Where a licensee who held a licence before the commencement of these Regulations noties the Commission that the licensee opts to migrate to a new licence (a) the Commission shall issue the new licences to the licensee on terms that do not detract from the rights held by the licensee under the old licence; (b) the new licence issued by the Commission to the licensee shall be valid for the unexpired term of the old licence or the full duration of the new licence whichever period is shorter; (c) the old licence shall cease to be valid immediately the new licence, commences; and (d) the old licensee shall be deemed to have waived the right to the continuation of the old licence and no compensation shall be due to the old licensee in this regard.

(3) Where an old licensee noties the Commission that the old licensee opts to continue with the old licence (a) the old licensee shall be entitled to continue to operate thenetwork or provide the service contemplated and authorisedby that licence for the remainder of the term of that licence; (b) the old licence shall expire at the end of the licence term specied in that licence, and licensee may apply for renewal under the new licensing framework.

Rev.

2011] Kenya Information and Communications CAP.

411A 281 [Subsidiary] 24.

(1) A person who provides any services under the Act without a Miscellaneous licence issued by the Commission commits an offence.

offences.

(2) A person who commits an offence under these Regulations for which no penalty is specically provided, is be liable to a ne not exceeding three hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.

THE KENYA INFORMATION AND COMMUNICATIONS (ELECTRONIC CERTIFICATION AND DOMAIN NAME L.N.

116/2010.

ADMINISTRATION) REGULATIONS, 2010 1.

These Regulations may be cited as the Kenya Information and Citation.

Communications (Electronic Certication and Domain Name Administration) Regulations, 2010.

Interpretation.

2.

In these Regulations, unless the context otherwise requires administrative contact means the entity responsible for maintenance of a domain name; certication personnel means any person who has (a) direct responsibility for the day-to-day operations, security and performance of any activity, relating to a certication service provider, regulated under the Act and these Regulations; or (b) duties that directly involve the issuance, renewal, suspension, revocation of certicates, creation of private keys or administration of a certication service providers computing facilities; certication practice statement means a statement of the practices that a certication service providers employs when approving or rejecting certicate applications, or issuing, managing or revoking certicates.

country code Top Level Domain (ccTLD) administrator means the entity managing the .ke ccTLD; ccTLD namespace means a collection of uniquely-assigned identiers within the Kenya country code Top Level Domain; licensee means a person licenced under the Act; registrant means a domain name holder; registrar means an entity that is authorized under the Act to administer the process of registration and modication of domain names; 282 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] relying party means an individual or organization that acts on the basis of a certicate; subdomain administrator means an entity managing a sub domain in the .ke ccTLD; subscriber means a certicate holder; subscriber identity verication method means the method used to verify and authenticate the identity of a subscriber; technical contact means the entity responsible for maintaining the primary name server for a domain name and for effecting technical changes to a domain name; time-stamp means a cryptographical digital attestation that a document or data existed at a particular time and has not been altered since a particular point in time and serves as a trusted third party witnessing the existence and particulars of electronic data; time-stamp services means issuance of time-stamps.

License for 3.

The Commission may, upon application in the prescribed manner and electronic subject to such requirements as it may consider necessary, grant a licence to a certication services.

person to provide electronic certication services.

4.

A person applying for a licence shall, in addition to the requirements Application for a prescribed in the Act and any Regulations made thereunder licence.

(a) submit for approval a certication practice statement, which fulls the requirements prescribed in these Regulations; (b) undergo and pass an initial audit; and (c) fulll other requirements relating to qualication, expertise, manpower, nancial resources and infrastructure facilities necessary to issue an advanced electronic signature certicate as may be prescribed by the Commission from time to time.

5.

(1) The Commission may recognize a foreign certication service Recognition of provider as a certication service provider for the purposes of these Regulations, foreign certication where the foreign certication service provider service.

Providers.

(a) is duly licensed or authorized by the relevant government authority in the country in which it operates; (b) complies with internationally acceptable standards and requirements under the Act and these Regulations; and (c) has established a local agent to provide the certication services Rev.

2011] Kenya Information and Communications CAP.

411A 283 in Kenya.

[Subsidiary] (2) A certicate issued by a certication service provider recognized under paragraph (1) shall be valid for the purposes of the Act and these Regulations.

(3) Where the Commission is satised that a foreign certication service provider has contravened any of the conditions and restrictions of recognition under paragraph (1), it may revoke the recognition.

6.

(1) A certication service provider shall, before commencement of its operations, prepare a certication practice statement, in accordance with these Certication practice Regulations and guidelines issued by the Commission from time to time and statement.

submit it, for approval by the Commission.

(2) A certication service provider shall not change the certication practice statement without the prior written approval of the Commission.

(3) A certication service provider shall specify, in its certication practice statement- (a) any limitation of its liabilities and particularly, the implication of reliance limitations specied; and (b) the subscriber identity verication method for the issuance, suspension, revocation and renewal of a certicate.

(4) A certication service provider shall le, with the Commission, a copy of its certication practice statement and specify its effective date and publish it on its website.

(5) A certication service provider shall log all changes to the certication practice statement and specify the effective date of each change.

(6) A certication service provider shall keep, in a secure manner, a copy of each version of its certication practice statement and record the date it came into effect and the date it ceased to have effect.

7.

(1) A certication service provider shall Responsibilities of a (a) issue and renew certicates; certication service (b) suspend, reinstate or revoke certicates; provider.

(c) conduct personal identication of subscribers; (d) publish accurate information relating to certicates; (e) provide a repository service listing all published certicates, records of revoked certicates that may be used to verify the validity of published certicates; 284 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (f) ensure protection of private information and safekeeping of data security; and (g) provide time-stamp services.

Records 8.

(1) A certication service provider shall, keep securely allrecords management.

relating to (a) issuance, renewal, suspension or revocation of certicates, including the identity of any person requesting for a certicate; (b) the process of generating key pairs by the subscribers or the licensed certication service provider; (c) the administration of its computing facilities; and (d) such other information as may be determined by the Commission from time to time.

(2) A certication service provider may keep its records in paper- based form, electronic form or any other form approved by the Commission from time to time.

(3) A certication service provider shall index, store, and preserve the records kept under paragraph (2) in a form that the records may be reproduced in an accurate, complete, legible manner and a manner accessible to the Commission or to any authorized ofcer.

(4) A certication service provider shall retain copies of all the certicates it has issued and preserve them so that they shall be accessible for a period of not less than seven years.

(5) A certication service provider shall retain all records required to be kept under paragraph (1) and all the logs of the creation of the archive of certicates required under paragraph (3) for a period of not less than seven years.

Issuance of 9.

(1) A certication service provider certicate shall issue a certicate certicates.

containing (a) information identifying the certication service provider; (b) information identifying the signature owner; (c) signature-verication data which corresponds to signature- creation data; (d) the commencement and expiry date of the certicate; (e) information regarding the authorization of the subscriber, if a subscriber is acting on behalf of another person; (f) information regarding the conditions of usage of the certicate and Rev.

2011] Kenya Information and Communications CAP.

411A 285 [Subsidiary] limits on the value of transactions, where applicable; (g) the secure electronic signature of the certication service provider that veries the information in the certicate; (h) sufcient information that can be used to locate or identify one or more repositories in which notication of the revocation or suspension of the certicate would be listed, if the certicate is suspended or revoked; and (i) any other information as may be determined by the Commission from time to time.

(2) A certication service provider shall determine, based on ofcial documents, the identity of the person to whom a certicate is issued and shall specify, in the certication practice statement, the subscriber identity verication method applied in the issuance of certicates.

(3) A certication service provider shall give a subscriber an opportunity to verify the contents of the certicate before the subscriber accepts it.

(4) A certication service provider shall inform a subscriber, in writing, the legal effect of an advanced electronic signature, the limitations on use of certicates and the dispute resolution procedures, applicable.

(5) A certication service provider shall warn subscribers, in writing, not to allow third parties to use signature creation data associated with signature verication data in the certicate.

(6) Where the subscriber accepts the issued certicate, the certication service provider shall publish a signed copy of the certicate in a repository in accordance with regulation 8.

(7) Where the subscriber does not accept the certicate, the certication service provider shall not publish the certicate.

(8) Once a certicate has been issued by the certication service provider and accepted by the subscriber, the certication service provider shall notify the subscriber, within a reasonable time, of any fact that subsequently becomes known to the certication service provider that may signicantly affect the validity or reliability of the certicate.

(9) A certication service provider shall log and keep in a secure manner the date and time of all transactions relating to the issuance of a certicate.

(10) Where a certication service provider issues an additional certicate to a person on the basis of a valid certicate held by the same person and subsequently the original certicate is suspended or revoked, the certication service provider shall investigate and determine whether the new certicate should also be suspended or revoked.

286 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] Obligations of a 10.

(1) Where a subscriber has accepted a certicate, the subscriber shall subscriber.

generate a key pair by applying the relevant security procedure.

(2) A subscriber shall be deemed to have accepted a certicate if he publishes or authorizes the publication of the certicate to any person, in a repository; or otherwise demonstrates his acceptance.

(3) A subscriber certies, by accepting a certicate, to all who wish to reasonably rely on the information contained in the certicate that (a) the subscriber holds and is entitled to hold the private key corresponding to the public key listed in the certicate; (b) all representations made by the subscriber to the certication service provider and all the information contained in the certicate are true; and (c) all information in the certicate is within the knowledge of the subscriber is true.

(4) Every subscriber shall exercise reasonable care to retain control of the private key corresponding to the public key listed in his certicate and take the necessary steps to prevent its disclosure to any person who is not authorized to afx the advanced electronic signature of the subscriber.

(5) In the event that the subscriber becomes aware that the private key has been compromised, the subscriber shall, notify the certication service provider of such compromise within twenty four hours.

Liability of 11.

(1) A certication service provider shall, by issuing or guaranteeing certication service a certicate to the public, accept liability for damage caused to any person who providers.

reasonably relies on the certicate unless the certication service provider can prove that it was not negligent.

(2) The liability of a certication provider under paragraph (1) shall be limited to issues relating to (a) the accuracy, at the time of issuance, of all information contained in the certicate and the fact that the certicate contains all the details prescribed for the certicate; (b) the assurance that at the time of the issuance of the certicate, the signatory identied in the certicate held the signature-creation data corresponding to the signature- verication data given or identied in the certicate; (c) assurance that the signature-creation data and the signature- verication data can be used in a complementary manner in cases where the certication service provider generated both of them; and (d) the failure to publish a notice of suspension or revocation of a Rev.

2011] Kenya Information and Communications CAP.

411A 287 [Subsidiary] certicate in the repository specied in the certicate.

(3) Where a certication service provider has specied in a certicate, the limits on the use of the certicates and the limits on the values of transactions for which the certicate may be used, it shall not be liable for any damage resulting from exceeding the limits.

12.

(1) The provisions of regulation 9 shall apply mutatis mutandis to Renewal of certicates.

the renewal of certicates.

(2) The subscriber identity verication method employed for renewal of certicates shall be specied in the certication practice statement.

(3) A certication service provider shall log and keep, in a secure manner, the date and time of all transactions relating to the renewal of a certicate.

Suspension of 13.

(1) A certication service provider shall maintain facilities that can certicates.

receive and respond to requests for suspension of certicates at all times of the day and on all days of every year.

(2) A certication service provider shall, upon receiving a valid request under paragraph (1) suspend a certicate and publish a notice of the suspension in the respective repository.

(3) The subscriber identity verication method employed for suspension of certicates shall be specied in the certication practice statement.

(4) Where a request for suspension is received and a certication service provider determines the revocation of the certicate would be justied in the light of all the evidence available to it, the certicate service provider may revoke the certicate.

(5) A certication service provider may, regardless of the subscribers consent, suspend a certicate that it has issued if it has reasonable grounds to believe that the certicate is unreliable.

Provided that the certication service provider shall conduct and complete its investigation into the reliability of the certicate and decide within a reasonable time whether to reinstate or revoke the certicate.

(6) A certication service provider shall, within a reasonable time, terminate a suspension initiated through a request, upon discovering and conrming that the request for suspension was made without the authorization of the subscriber.

(7) A certication service provider shall, after suspending a certicate, consult with the subscriber or his authorized agent on whether to reinstate or revoke the certicate.

(8) The provisions of regulation 11 shall apply where the suspension of a certicate leads to the revocation of the certicate.

288 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (9) A certication service provider shall log and keep in a secure manner the date and time of all transactions relating to the suspension of certicates.

(10) A party who wishes to rely on any certicate shall, before relying on a certicate, establish the status of the certicate.

Revocation of 14.

(1) A certication service providers shall revoke a certicate upon certicates.

(a) receiving a request for revocation from a subscriber or his authorized agent; (b) detecting forgery or falsication of the information existing in the database or changes in the information in database ; and (c) detecting the incapacity, bankruptcy or death of the subscriber: Provided that where it is practicable, a certication service provider shall afford the subscriber a reasonable opportunity to be heard, before the revocation is effected.

(2) A certication service provider shall maintain facilities that can receive and act upon requests for revocation at all times of the day and on all days of every year.

(3) A certication service provider shall use the subscriber identity verication method specied in the certication practice statement to conrm the identity of the subscriber or authorized agent who makes a request for revocation.

(4) A certication service provider shall, after revoking a certicate, give a notice of revocation to the subscriber and publish the notice in the respective repository.

(5) A certication service provider shall log and keep in a secure manner the date and time of all transactions relating to the revocation of a certicate.

(6) A party who wishes to rely on any certicate shall, before relying on a certicate, establish the status of the certicate.

Performance audits.

15.

The Commission shall, at least once in every year, audit the operations of a licensed certication service provider to monitor compliance with the Act and these Regulations.

Security guidelines.

16.

(1) A certication service provider shall comply with the security guidelines that may be issued by the Commission.

(2) A certication service provider shall provide every subscriber with a secure and trustworthy system to generate his key pair.

(3) A certication service provider shall establish a mechanism that generates and veries advanced electronic signatures in a secure and trustworthy manner and indicates the validity of a signature.

Rev.

2011] Kenya Information and Communications CAP.

411A 289 [Subsidiary] (4) Where the advanced electronic signature is not valid, the mechanism established under paragraph (3) should indicate the reason for invalidity and the status of the certicate.

(5) Where a verication mechanism is established by any person who is not a certication service provider, the resulting signature shall not be considered secure unless a licensed certication service provider endorses the implementation of mechanism and its certicate.

(6) A licensed certication service provider shall store the keys, including the subscribers and the certication service providers keys, in a secure and trustworthy manner.

17.

(1) A certication service provider shall establish an incident Incident handling.

management plan to address, among others, incidents relating to- (a) compromise of key; (b) penetration of certication service providers system and network; (c) unavailability of infrastructure; and (d) fraudulent registration and generation of certicates, certicate suspension and revocation information.

(2) Where any incident referred to in paragraph (1) occurs, a certication service provider shall report the incident to the Commission within twenty four hours.

18.

(1) A certication service provider shall not collect personal data Condentiality.

directly from the subscribers or their authorised agents, unless the personal data is necessary for the purposes of issuance of a certicate.

(2) A certication service provider shall keep all information relating to a subscriber condential.

(3) A certication service provider shall not disclose any information relating to a subscriber unless the disclosure is authorized by the subscriber: Provided that a certication service provider may, pursuant to an order of the court, disclose information relating to a subscriber without the consent of the subscriber.

(4) The obligation to maintain condentiality shall not apply to information relating to a subscriber which (a) is contained in the certicate and is available to the public for inspection; (b) is otherwise provided by the subscriber to the licensed certication 290 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] service provider for disclosure to the public; or (c) relates to the revocation or suspension of a certicate.

(5) Where a certication service provider has permitted a subscriber to use a pseudonym, the certication service provider shall, at the request of law enforcement authorities, disclose data relating to the subscriber that is required to prosecute offences or to protect against threats to public safety or public order.

Winding up of 19.

(1) A certication service provider may, where the certication service operations of a provider intends to discontinue its operations certication service provider.

(a) arrange for its subscribers to re-subscribe to another licensed certication service provider; (b) make arrangements for its records and certicates to be archived in a secure manner; and (c) transfer its records to another licensed certication service provider in a secure manner.

(2) A certication service provider shall, where the certication service provider intends to discontinue its operations- (a) give the Commission and its subscriber a minimum of six months notice, in writing, of its intention to discontinue its operations; and (b) publish, in at least one local daily newspaper with nationwide circulation and in such other manner as the Commission may determine, at least two months notice of its intention to discontinue its operations.

Licensing for 20.

(1) The Commission may, upon application in the prescribed manner updating of a and subject to such conditions as it may consider necessary, grant a licence for repository and updating a repository or administering a subdomain in the Kenya country code administering a sub top level domain.

domain in the .ke ccTLD.

(2) A person shall not create a new sub-domain under the Kenya country code Top Level Domain without the approval of the Commission.

(3) The Commission may issue guidelines for assignment of sub domains under the ccTLD namespace and prescribe- (a) words, phrases or abbreviations that may not constitute a sub- domain name; or (b) words, phrases or abbreviations that are reserved for special purposes.

Responsibilities 21.

(1) The administrator of the .ke ccTLD shall of the .ke ccTLD Rev.

2011] Kenya Information and Communications CAP.

411A 291 [Subsidiary] (a) be the administrative technical and contact for the ccTLD; administrator.

(b) administer the .ke ccTLD; (c) maintain the operational stability and utility of the ccTLD; (d) notify the Commission of any change in the ccTLD data; (e) provide name service for the ccTLD and ensure that the database is secure and stable; (f) comply with the Commissions guidelines for the administration of the ccTLD; and (g) allow the Commission to access ccTLD zone les.

22.

The administrator of the ccTLD shall, where theadministrator intends Winding up of to discontinue its operations operations of the .ke (a) give the Commission and administrators of sub domains in the ccTLD administrator.

ccTLD a minimum of a six months, notice in writing, of its intention to discontinue its operations; (b) publish, in at least one local daily newspaper with nationwide circulation and in such other manner as the Commission may determine, at least four months notice of its intention to discontinue its operations; (c) furnish the Commission with an up-to-date copy of its zone les; and (d) seek the Commissions approval for the transfer of the zone les to another entity, in a secure manner.

23.

(1) The administrator of a subdomain in the .ke ccTLD shall Responsibilities of a subdomain (a) administer a subdomain in the .ke ccTLD; administrator.

(b) at all times, maintain a website that contains registration information; (c) maintain the operational stability and utility of the subdomain in the .ke ccTLD; (d) notify the Commission of any change in the data of a subdomain; (e) provide the name service for a subdomain and ensure that the database is secure and stable; (f) provide a domain registration system for the subdomain; 292 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] (g) allow the Commission to access the zone les and registration data for the subdomain; and (h) comply with the Commissions guidelines for the administration of sub domains in the .ke ccTLD; Winding up of 24.

The administrator of a subdomain shall, where the administrator operations of a sub intends to discontinue its operations domain administrator.

(a) give the Commission and its registrants a minimum of six months notice, in writing, of its intention to discontinue its operations; (b) publish, in at least one local daily newspaper with nationwide circulation and in such other manner as the Commission may determine, at least four months notice of its intention to discontinue its operations; (c) furnish the Commission with an up-to-date copy of its zone les; and (d) seek the Commissions approval for the transfer of the zone les and registration data to another administrator of a sub domain in the .ke ccTLD, in a secure manner.

Performance audits.

25.

The Commission shall, at least once in every year, audit the operations of the administrator of the .ke ccTLD and subdomain administrators, to evaluate compliance with the Act and these Regulations.

Limitation of 26.

A registrant shall bear liability for the infringement of third party liability.

rights and interest arising from holding or using a domain name in the ccTLD.

Condentiality.

27.

A subdomain administrator shall use the information obtained from its registrants for the purpose of domain name registration except where the law requires otherwise.

Offences and 28.

(1) Any licensee who contravenes the provisions of these Regulations penalties.

commits an offence.

(2) Any person who commits an offence under these Regulations for which no penalty is expressly provided shall be liable on conviction to imprisonment for term not exceeding ve years or a ne not exceeding one million shillings or both.

Rev.

2011] Kenya Information and Communications CAP.

411A 293 [Subsidiary] the Kenya InformatIon and CommunICatIons L.N.

1/2013 (regIstratIon of suBsCrIBers of teleCommunICatIon servICes) regulatIons, 2012 Short Title.

1.

These Regulations may be cited as the Kenya Information and Communications (Registration of Subscribers of Telecommunication Services) Regulations, 2012.

Interpretation.

2.

In this Order unless the context otherwise requires subscriber means a person who has subscribed to a telecommunication service and is able to use such a service; Commission means the Communications Commission of Kenya; deactivate means to disable a telecommunications service to a subscriber by a licensee; identication particulars means details given by a subscriber to a licensee or a licensees agent for the purpose of registration of the subscriber; licensee means a person or entity licensed under the Act to own and operate a telecommunications system or to provide telecommunications services or both; registration means the recording of identication particulars of a subscriber by a licensee or a licensees agent; proxy registration means registration on behalf of a subscriber by a person not being the subscriber; subscriber means a person who uses a telecommunication service provided by the licensee; subscription medium includes a Subscriber Identity Module and any such device that contains a subscribers telephone number, encoded network identication details, personal identication number and any other user data that may be provided from time to time by a licensee for the provision of telecommunication services to a subscriber; suspend means to temporarily disable a telecommunications service to a subscriber by a licensee.

3.

The object of these Regulations is to provide a process for the Object.

registration of existing and new subscribers of telecommunication services provided by telecommunication licensees in Kenya.

4.

(1) A licensee shall register a subscriber as specied in these Requirement for Regulations.

registration.

(2) Despite sub-paragraph (1), any subscriber who has not registered 294 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] at the commencement of these regulations shall be registered by the licensee.

(3) A licensee shall only sell a subscription medium to a subscriber after complying with these Regulations.

(4) Where a licensee relies upon the services of an agent to comply with the provisions of these Regulations (a) such agent shall also comply with the provisions of these Regulations; (b) the licensee shall notify the Commission in writing of this relationship; and (c) the licensee shall keep a record of all registrations of subscriptions made by the agent and provide a copy of this record to the Commission upon request by the Commission.

Method of 5.

(1) Where a subscriber wishes to register a subscription medium that registration.

subscriber shall provide the following particulars to the licensee (a) the subscribers telephone number; (b) the subscribers ofcial name; (c) the subscribers date of birth; (d) the subscribers gender; (e) the subscribers physical address; (f) the subscribers postal address, where available; (g) the subscribers national identity card number or passport number; (h) a copy of the subscribers certicate of incorporation, where relevant; (i) a copy of the subscribers certicate of registration, where relevant; (j) the subscribers work permit number, where relevant; and (k) the subscribers alien card number, where relevant.

(2) Where there is a change in any of the details provided by a subscriber under sub-paragraph (1), the subscriber shall inform the licensee of the change within thirty (30) days of the change taking place and the licensee shall alter the relevant registration particulars of the subscriber.

(3) The licensee or the licensees agent shall not register a subscription medium unless the subscriber complies with these Regulations.

Verication of Rev.

2011] Kenya Information and Communications CAP.

411A 295 [Subsidiary] 6.

A licensee shall rely on the following documents to verify the identication registration details of a subscriber particulars.

(1)for a Kenyan citizen (a)original identity card; (b) original and valid passport; (c) original driving license; (d) military identity card; or (e) student identity card from an accredited educational institution; (2)for a foreign national (a) work permit; (b) passport; (c) or alien card.

(3) For a corporate person or a statutory body, certied copies of the following documents shall be used for verication (a) certicate of incorporation; (b) certicate of registration; or (c) enabling legislation or Gazette notice.

7.

The registration process shall involve the recording of data by the The registration licensee or the licensees agent in the following manner process.

(a) by entering the registration particulars in an electronic or physical form; (b) by requiring the person submitting the registration particulars to appear before the licensee or licensees agent in person; and (c) by keeping and protecting the registration particulars collected in a secure form.

8.

(1) A licensee shall maintain a physical or electronic record of Record of registration particulars of a subscriber.

registration.

(2) Where a subscription has been deactivated the licensee shall keep the records of the relevant subscriber for a period of one year from the date of 296 CAP.

411A Kenya Information and Communications [Rev.

2011 [Subsidiary] the deactivation of the subscription.

Condentiality 9.

(1) A licensee shall not disclose the registration particulars of a and disclosure of subscriber to any person without the written consent of the subscriber.

personal information of a subscriber.

(2) Despite sub-paragraph (1), a licensee may disclose the registration particulars of a subscriber (a) for the purpose of facilitating the performance of any statutory functions of the Commission; (b) in connection with the investigation of any criminal offence or for the purpose of any criminal proceedings; or (c) for the purpose of any civil proceedings under the Act.

(3) A licensee shall ensure that the registration details of a subscriber are kept in a secure and condential manner.

(4) A licensee shall notify the Commission of the steps taken and processes introduced to ensure the security and condentiality of the registration particulars of its subscribers within ninety (90) days of the commencement of these Regulations.

Registration period.

10.

Alllicensees shall b erequired to ensurethat (a) every subscriber is registered; and (b) all necessary steps are taken to ensure full compliance with these Regulations within thirty days of the coming into force of these Regulations.

Suspension and 11.

(1) A licensee shall suspend a telecommunication service to an notication of unregistered subscriber if the unregistered subscriber fails to comply with these deactivation of Regulations at the expiry of the registration period provided under paragraph 10.

unregistered subscriber.

(2) A licensee may reactivate a suspended telecommunication service to a subscriber if the subscriber complies with these Regulations during the period of suspension of the service.

(3) All licensees shall notify all their unregistered subscribers that the subscribers telecommunications services will be suspended if they do not comply with these Regulations.

(4) A notice under this paragraph may take the form of (a) an advertisement in a newspaper of national circulation; (b) an advertisement in an electronic medium that broadcasts throughout the country; Rev.

2011] Kenya Information and Communications CAP.

411A 297 (c) any other form as may be permitted in writing by the Commission.

[Subsidiary] 12.(1) A licensee may deactivate a subscribers telecommunication Deactivation service if the service has been suspended for at least ninety (90) days.

of unregistered (2) A licensee shall deactivate a subscribers subscription medium if subscriber.

(a) the licensee or the Commission establishes that the subscriber has provided false information for registration; or (b) upon request by a subscriber after verication and conrmation of the subscriber in the subscription medium.

(3) Despite sub-paragraph (2) (b), any other person who establishes that the subscriber has provided false information for registration shall lodge a complaint with the Commission and ask the Commission to deactivate the subscription medium and the Commission shall notify the licensee of the complaint and the proposed deactivation of the subscribers subscription medium within a reasonable period.

(4) A licensee shall only deactivate a subscribers subscription medium where a complaint has been made to the Commission by another person after verifying the particulars of the complaint and giving the subscriber a reasonable opportunity to be heard.

(5) The licensee shall reactivate a suspended subscription medium where a subscriber complies with these Regulations.

13.

There shall be no proxy registration of any subscription medium.

Prohibition of proxy registration.

14.

(1) A subscriber shall be liable for activities carried out using a Liability for activities subscription medium registered in that persons name.

using a subscriber s subscription medium.

(2) Despite sub-paragraph (1), a subscriber shall not be held liable if that subscriber can prove that when the activities were being carried out the subscriber was not in control of the subscription medium.

15.

Any notice required to be given by a licensee to a subscriber may also Notice.

be given using any electronic means permitted by the Commission.

.

Frequently asked questions

What is M-Wakili?

M-Wakili (Wakili AI) is an advanced AI-driven legal aide proficient in interpreting Kenyan law.
This tool is useful for lawyers, law students, and the public, providing exhaustive and concise solutions to legal issues.
M-Wakili is more than an information database, it dissects and analyzes legal documents, clarifying their essence and implications to answer queries accurately. Alongside its legal expertise, M-Wakili also produces persuasive written content.
The primary aim of M-Wakili is to provide world-class legal support to people from all walks of life, while also aiding the advancement of law professionals by enhancing research efficiency.
This innovative platform promises to revolutionize the legal field, enhancing the accessibility and effectiveness of legal expertise.

Will I get immediate answers to my legal questions 24/7?

Yes the service is available 24/7 and you will get answers to your legal questions within seconds.

How does M-Wakili work?

M-Wakili is a custom trained AI model that uses algorithms and machine learning to understand and answer a user's questions. It bases its responses on the existing Kenyan laws and regulations.

Is M-Wakili accurate?

Yes, M-Wakili is designed to provide accurate and reliable responses based on Kenyan Law and is considered more accurate than almost all AI models including ChatGPT. Additionally, it is constantly being updated and improved to ensure it is aware of the occurring changes in the laws and regulations.
If you find any model that is more accurate than M-Wakili, please let us know and we might give you a free subscription or a *refund. (We reserve the right to determine the accuracy of the model and if you should be given a refund or free subscription. Our terms and conditions apply.)

Who can use M-Wakili?

Everyone can use M-Wakili. Lawyers and law students can use it as a legal research tool, and the general public can use it to get answers to their legal queries.

How can I access M-Wakili?

You can access M-Wakili through our website. Just type in your question, and M-Wakili will provide the answers.

Is M-Wakili a substitute for a human lawyer?

No it cannot and will not be, M-Wakili is designed to assist and provide legal information and is great at that. However, there are still situations where the expertise and personal touch of a real lawyer is necessary, such as in court representation and negotiations.
Fun fact, most of our paying users are lawyers! They use M-Wakili to help them with legal research and analysis.

Is AI going to replace lawyers?

No. M-Wakili AI is great for helping real-life lawyers with legal work and assisting people in understanding legal problems, providing many ways how to handle them. However, AI cannot replace the human touch of a real lawyer. There are still situations where the expertise and personal touch of a real lawyer is necessary, such as in court representation and negotiations.
In fact, most of our paying users are lawyers! They are excited about the possibilities of AI in the legal industry and are leveraging it to save time and energy and focus on higher-level tasks.
AI can make the legal market more convenient for both sides by allowing real lawyers to focus on specialized services while using AI to handle certain tasks.

Is my data secure with M-Wakili?

Yes, we prioritize user data privacy and have implemented strict measures to ensure that your data is secure.

Can M-Wakili represent me in court?

Not yet, M-Wakili cannot represent you in court. It can help you understand the law and your legal situation, but you will need a human lawyer for court representation.

Do I need to pay for M-Wakili services?

Currently, we offer basic features for free while premium services require a subscription fee. Please visit our pricing page for more details.

How can M-Wakili help law students?

M-Wakili can assist law students in learning and practicing their legal research and analysis skills. It may also offer insights into current legal trends and issues, helping prepare them for their future in law.

What does "HHH" mean?

Helpful, Honest, and Harmless (HHH) are three components of building AI systems (like M-Wakili) that are aligned with people’s interests.
- Helpful: M-Wakili wants to genuinely help the user
- Honest: M-Wakili shares information it believes to be true, and avoids made-up information
- Harmless: M-Wakili will not cooperate in aiding the user in harmful activities or lead the user to harms way