Definition of Data

“ data" means any information presented in an electronic form

Main Focus of Document

Provides for the legal recognition of electronic transactions, e-government services, the use of ICT in the collection of evidence, admissibility of electronic evidence, facilitation of the use of secure electronic signatures, and other related matters

Target Beneficiaries or Sector

government, citizens, businesses

Key Elements

Key elements of the Act are detailed below:
4. A data message shall not be denied legal effect, validity or enforceability on the ground that it is in electronic format.

6. (1) Where a law requires the signature of a person to be entered, that requirement shall be met by a secure electronic signature made under this Act.
(2) The requirement for an electronic signature made under subsection (1) shall be met if: (a) the method is used to identify the person and to indicate the intention of that person in relation with information communicated; and (b) at the time the method was used, that method was reliable and appropriate for the purposes for which the information was communicated. 
(3)  Parties to a contract may agree to use a particular method of electronic signature as they deem appropriate unless it is otherwise provided by law. 

7. An electronic signature shall be deemed to be secure if it: (a) is unique for the purpose for which it is used; (b) can be used to identify the person who signs the electronic communication; (c) is created and affixed to the electronic communication by the signer;  (d) is under control of the person who signs; and (e) is created and linked to the electronic communication to which it relates in a manner such that any changes in the electronic communication would be revealed.

13. (1) Without prejudice to any other law, where a public institution has power to deal with an information or a document or issue services, it may deal with that information or document or issue such services in electronic form in accordance with this Act. 
(2) A requirement that information or document shall be made or given in writing or signed, does not in itself constitute an express prohibition of the use of electronic means.
(3) A public institution may take or receive payment in electronic form in a prescribed manner.
(4) For the purpose of subsection (1), the Minister may, in consultation with the Minister responsible for e-Government, by notice published in the Gazette, issue guidelines specifying: (a) the manner and format in which the electronic transaction shall be made;  (b) the type of electronic signature required, in cases where an electronic transaction has to be signed; (c) the manner and format in which the electronic signature may be attached or associated with an electronic transaction; (d) control processes and procedures to ensure integrity, security and confidentiality of the information; (e) the identity of or criteria to be met by an authentication service provider for e-government services; (f) the appropriate control process and procedure to ensure adequate integrity, security and confidentiality of an electronic transaction or an electronic payments; and (g) any other requirements that relates to electronic transaction. 
(5) Notwithstanding subsection (4), any authorized public institution may adopt such other authentication procedures.
(6) For the purpose of this Part, “e-Government Services” means any government services provided through the use of ICT. 

Recognition of Electronic Contracts
21. (1) For avoidance of doubt, a contract may be formed electronically unless otherwise agreed by the parties.
(2) Where an electronic record is used in the formation of a contract, that contract shall not be denied validity or enforceability on the ground that an electronic record was used for that purpose. 

Consumer Protection
28. (1) A supplier offering goods or services for sale, hire or for exchange electronically, shall provide the following information to consumers: (a) full name, legal status and place of business; (b) contact details including physical address, telephone and e-mail addresses; (c) a full description of the goods or services offered; (d) the price of the goods or services; (e) information on the payment mechanisim that complies with other written laws; and (f) any other relevant information. 
(2) Before  a consumer places an order, the supplier shall provide the consumer with an opportunity to: (a) review the entire electronic transaction; (b) correct any mistake; and (c) withdraw from the transaction.
(3) Where a supplier contravenes this section, the consumer may, within fourteen days of receiving the goods or services, cancel the transaction.   

29. (1) Unless the parties have agreed otherwise, the supplier shall execute the order within thirty days from the day on which the supplier received the order. 
(2) Where a supplier fails to execute the order within time specified under subsection (1), the consumer may cancel the agreement by giving a seven days notice. 
(3) Where a supplier is unable to perform the contract on the grounds that goods or services ordered are unavailable, the supplier shall within thirty days notify the consumer and the supplier shall refund any payment that has been made. 

30. (1) Without prejudice to any other law, a consumer may, within seven days or a longer period specified in the agreement, after receiving the goods or conclusion of the agreement and the consumer has not received any material benefit from the transaction, cancel the agreement for supply of goods or provision of service.
(2) Where a consumer has cancelled the agreement under subsection (1), he shall pay direct cost of returning the goods. 
(3) Where a consumer has paid for the goods or services prior to exercising a right under subsection (1) the consumer is entitled to a refund. 
(4) The refund under subsection (3) shall be made within thirty days after the date of cancellation of transaction. 
(5) This section shall not apply to electronic transactions: (a) for financial services; (b) by way of an auction; (c) for the supply of foodstuffs, beverages or other goods intended for daily consumption; (d) for services which began with the consent by the consumer before expiration of the seven-day period; (e) where the price for the supply of goods or services is dependent on fluctuations in the financial markets and which cannot be controlled by the supplier; (f) where the goods - (i) are made to the consumer's specifications; (ii) are clearly personalised; (iii) by their nature, cannot be returned; or (iv) are likely to deteriorate or expire rapidly; (g) where audio or video recordings or computer software were downloaded or unsealed by the consumer; (h) for the sale of newspapers, periodicals, magazines and books; (i) for the provision of gaming and lottery services; (j) for online gambling; (k) for the provision of accommodation, transport, catering; and (l) any other transactions as the Minister may, by notice published in the  Gazette prescribe. 
(6) For the purpose of this section “direct costs” means, costs incurred and include transport costs or postage when returning goods or services but exclude any handling fees. 

31. A person who offers  goods or services electronically shall provide the addressee with: (a) an identity of the originator and contact details; (b) a valid and operational opt-out facility from receiving similar communications in future; and (c) the particulars of the source from which the originator obtained the personal information of the addressee. 

Cryptographic and Certification Service Providers
35. (1) A person who intends to offer cryptographic or certification services shall apply to the regulator. 
(2) The application made under subsection (1) shall consist of the following information: (a) name and contact, including the physical address, telephone and e-mail; (b) a description of the type of service to be provided; (c) a description of the purpose to which the service will be applied; (d) a description of the technology to be applied in the services; and (e) any other relevant particulars as may be prescribed by the regulator. 

36. (1) A person shall not provide cryptographic or certification services without a licence. 
(2) A person who contravenes subsection (1) commits an offence and shall, upon conviction be liable to a fine of not not less than ten million shillings or to imprisonment for a term not less than five years or to both.
 

Policy/Regulation Mirrors

n/a