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Telecommunications
Laws of the World

Overview of legal landscape

Kenya
Kenya

All telecommunication service providers are required to obtain a licence from the Communications Authority of Kenya (CAK).

The roles and responsibilities of the CAK are codified in the Kenya Information and Communications Act (CAP 411A, Laws of Kenya) (KICA) together with various regulations and Policy Statements that are issued by the CAK from time to time. The CAK regulates the information and communication sector which broadly includes broadcasting, multimedia, telecommunications and postal services.

Last modified 5 Oct 2016
Overview
Kenya

All telecommunication service providers are required to obtain a licence from the Communications Authority of Kenya (CAK).

The roles and responsibilities of the CAK are codified in the Kenya Information and Communications Act (CAP 411A, Laws of Kenya) (KICA) together with various regulations and Policy Statements that are issued by the CAK from time to time. The CAK regulates the information and communication sector which broadly includes broadcasting, multimedia, telecommunications and postal services.

Last modified 5 Oct 2016
Laws and regulations

The primary legislation governing the telecommunications sector in Kenya is the KICA.  The KICA came into force on 1 October, 1998 and has undergone numerous amendments. The main objective of the KICA is to provide, inter alia, for the establishment of the CAK, facilitate the development of the information and communications sector (including broadcasting, multimedia, telecommunications and postal services) and e-commerce. 

In addition, there are currently about 20 pieces of subsidiary legislation that have been enacted under the KICA since 2003. These include: 

The Kenya Information and Communications (Dispute Resolution) Regulations, 2010

These Regulations empower the CAK to determine any dispute arising between licensees, a consumer and a licensee, or where one is aggrieved by the conduct of a licensee and the parties have failed to reach an amicable resolution after due effort has been made. 

The Kenya Information and Communications (Tariff) Regulations, 2010

These Regulations provide a framework for the determination of tariffs and tariff structures by:

  • Ensuring that licensees maintain financial integrity and attract capital
  • Protecting the interests of investors, consumers and other stakeholders
  • Providing market incentives for licensees to operate efficiently
  • Promoting fair competition 

The Kenya Information and Communications (Compliance, Monitoring, Inspections and Enforcement) Regulations, 2010

These regulate the procedures for the enforcement and monitoring of regulations on radio communication, broadcasting, postal and courier services and telecommunication services. 

The Kenya Information and Communications (Fair Competition and Equality of Treatment) Regulations, 2010

The main purpose of these Regulations is to provide a regulatory framework to promote fair competition and equal treatment in the communications sector and to protect against the abuse of market power or other anti-competitive practices within the communications sector. They also seek to:

  • Provide for the standards and procedures to be applied by the CAK in determining whether particular conduct is anti-competitive
  • Clarify the agreements, conduct or practices that the CAK considers to be anti-competitive, and prohibited under the KICA
  • Provide for the standards and processes that the CAK shall apply when determining whether a telecommunication service provider is dominant in a given market 

The Kenya Information and Communications (Interconnection and Provision of Fixed Links, Access and Facilities) Regulations, 2010

These Regulations apply to all interconnect licensees and interconnecting licensees, including the form and content of interconnection agreements, access and facilities. This is discussed in more detail in Interconnection and Roaming. 

The Kenya Information and Communications (Consumer Protection) Regulations, 2010

These Regulations set out the rights and obligations that consumers are entitled to, as well as the safeguards that the licensed telecommunication service providers should put in place in order to protect consumer rights. 

The Kenya Information and Communications (Importation, Type Approval and Distribution of Communications Equipment) Regulations, 2010

These Regulations set out the procedures for the application and approval of equipment.

The Kenya Information and Communications (Universal Access and Service) Regulations, 2010

These Regulations provide a regulatory framework for the design and implementation of universal access and service provision, as well as a framework for the administration of the Universal Service Fund in Kenya. 

The Kenya Information and Communications (Licensing and Quality of Service) Regulations, 2010

These Regulations enumerate the licensing and the quality of services by communication service providers. 

The Kenya Information and Communications (Electronic Certification and Domain Name administration) Regulations, 2010

These regulate the licensing of electronic certification services and set out the responsibilities of certified service providers.  

The Kenya Information and Communications (Numbering) Regulations, 2010 

The object and purpose of these Regulations is to provide a regulatory framework for the control, planning, administration and management of the numbering and addressing of network services, national plan and applications services. 

The Kenya Information and Communications (Registration of SIM-Cards) Regulations, 2015 

These regulations are made pursuant to Section 27D of the KICA. These new regulations revoked the Kenya Information and Communications (Registration of Subscribers of Telecommunications Services) Regulations, 2012. The object of these Regulations is to provide a process for the registration of existing and new subscribers of telecommunication services provided by telecommunication licensees in Kenya.

The Kenya Information and Communications (Postal and Courier Services) Regulations, 2010 

These regulations provide for a regulatory framework for the licensing of postal services providers and to set out their responsibilities.

Policy guidelines are issued from time to time under the prerogative of the Cabinet Secretary who is currently responsible for Information Communication and Technology.  

In March 2006, the Government released the Information and Communications Technology Sector Policy Guidelines (the 'ICT Policy'). This ICT Policy is based on internationally accepted standards and best practices, particularly the Common Market for Eastern and Southern Africa (COMESA) Model adopted by the COMESA Council of Ministers in March 2003. It seeks to facilitate sustained economic growth and poverty reduction, promote social justice and equity, mainstream gender in national development, empower the youth and disadvantaged groups, stimulate investment and innovation in ICT and achieve universal access. It has specific policy objectives on information technology, broadcasting, telecommunications, postal services, radio frequency spectrum, universal access and institutional framework for policy implementation.

The CAK, where necessary, also issues guidelines for the ICT sector on the implementation of specific regulatory issues. The guidelines are usually issued after extensive deliberations with all industry players and other parties that have a stake in the issue in question. These guidelines include: 

Guidelines for Supply, Installation and Maintenance of Internal Communication Infrastructure, 2012

The scope of these guidelines is that in a liberalised ICT environment, the CAK expects fair competition to prevail among all network operators, vendors and contractors in the manufacturing, marketing, supply, installation and maintenance of telecommunications wiring, terminal equipment and accessories. 

Guidelines for the Implementation and Provision of Voice over Internet Protocol (VoIP) Services

These guidelines define VoIP and provide for the technical implementation of VoIP and the obligations to infrastructure and application service providers.  

Procedures and Guidelines for the Provision of Mobile Number Probability Services in Kenya

These procedures and guidelines were issued pursuant to, and form part of the Operator Licence Condition on 'Numbering and Number Portability'. They  relate to those aspects of the Mobile Number Portability ordering process that:

Involve exchanges between the operators via the Central Reference Database.

Involve actions by one operator that have to be relied upon by another operator including but not limited to subscriber order validation process.

Lastly, the Code of Practice is a form of industry self-regulation (encouraging industry self-regulation). The CAK has, in collaboration with stakeholders, developed a code of practice for the deployment of communications infrastructure, and is in the process of developing mechanisms for enforcing it.

Code of Practice for the Deployment of Communications Infrastructure in Kenya

The purpose of this Code is to deal with communication infrastructure and equipment with a particular emphasis on:

  • Ensuring that in considering requests for various authorisations that are required for the installation of communication equipment, the various regulators and operators adopt a consistent approach
  • Setting up a framework to address legislative gaps that may exist in the applicable laws until they are otherwise addressed through appropriate review(s)
  • Assuring the public that all precautions have been taken to ensure that operators and their agents and the health and safety of the public, operators and their agents are safeguarded with regard to communications installations
  • Spelling out the principles that will guide operators in the rollout of infrastructure
  • Addressing areas of concern to all regulators, operators and the general public
  • Assisting operators and other stakeholders to comply with the legal requirements governing the deployment of communications infrastructure
  • Setting out the minimum procedural requirements to be followed by operators in the rollout of their communications infrastructure
  • Spelling out the enforcement mechanism where there is non-compliance by an operator
  • promoting good industry practices in the communications sector
  • Addressing reasonable consumer concerns and to build/win consumer confidence that the operators are sensitive to, as well as committing to address concerns that the consumers may have regarding the rollout of infrastructure
Last modified 5 Oct 2016
Regulatory bodies

The Communications Authority of Kenya

Physical Address: CCK building, along Waiyaki Way, Nairobi

Postal Address: P.O. Box 14448, Nairobi 00800

Tel: +254 (20) 4242000 / 2441081-4

Mobile: +254 703 042 000 / +254 730 172 000

Email: [email protected]

Website: http://ca.go.ke/  

Last modified 5 Oct 2016
Regulated activities

The types of communication service providers for the purposes of the KICA are:

Telecommunications

 A telecommunication service is defined in the KICA as including:

  1. 'A service consisting of the conveyance by means of a telecommunication system of anything falling within subparagraphs (1) to (5) in the definition of 'telecommunication system'.

  2. A service consisting of the installation, maintenance, adjustment, repair, alteration, moving, removal or replacement of apparatus which is or is to be connected to a telecommunication system.

  3. A directory information service, being a service consisting of the provision by means of a telecommunication system of directory information for the purposes of facilitating the use of a service falling within subparagraph (1) above and provided by means of that system.'

The CAK has in place a Unified Licensing Framework (ULF), which is technology and service neutral. The ULF market is structured into three main licences:

  • Network Facility Operator

  • Application Service Provider 

  • Content Service Provider

Radio communication

Radio communication is defined as:

'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:

  • Is capable of being transmitted through a telecommunication system, or

  • 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.'
Last modified 5 Oct 2016
Registration / licensing

Any person wishing to establish or use any of the above services must first obtain the requisite licence from the CAK. An entity may be issued with multiple commercial licences, provided that it maintains separate accounts for each licence. Depending on the user of the licence, a telecommunications company may be issued with a licence under any of the following categories:

1. National Network Facilities Providers Licences:

  • Tier 1 licence: country wide exclusive utilisation
  • Tier 2 licence: regional exclusive utilisation
  • Tier 3 licence administrative district exclusive utilisation

2. International Network Facilities Providers Licences:

  • Submarine Cable Landing Licence
  • International Gateway Licence

3. Non-Infrastructure Based Service Providers Licences:

  • Applications Service Providers Licence
  • Content Service Providers Licence

4. Terminal Equipment Providers:

  • Telecommunications Terminal Equipment Contractors Licence
  • Telecommunications Technical Personnel Licence

5. Private Very Small Aperture Terminals (VSAT) Licence:

  • VSAT Operated through Foreign Hub Operators Licence

6. One Time Authorisation:

  • GMPCS Landing Right's Authorisation
  • Business Processes Outsourcing Licence
  • DOT Ke Subdomain Name Registrar Service Providers Licence
Last modified 5 Oct 2016
Establishment

An application for any such licence must meet the following minimum requirements:

  • The entity should be registered in Kenya as a company, sole proprietor or partnership
  • Have a duly registered office and permanent premises in Kenya
  • Provide details of shareholders and directors
  • Issue at least 20% of its shares to Kenyans on or before the end of three (3) years after receiving a licence
  • Provide evidence of compliance with tax requirements

The above prerequisites to acquiring licences that will facilitate commencement of a telecommunication business automatically lock out non-domiciled establishments.

Last modified 5 Oct 2016
Interconnection/roaming

Interconnection

The Kenya Information and Communications (Interconnection and Provision of Fixed Links, Access and Facilities) Regulations, 2010 (the 'Interconnection Regulations') applies to all interconnection licensees and interconnecting licensees, including the form and content of interconnection agreements, access and facilities.

An interconnecting licensee has a right to choose its interconnection licensee to route its data traffic and calls towards customers of another licensee.  An interconnection licensee on the other hand has 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.

Parties to an interconnection agreement are required to negotiate in good faith and reasonably endeavour to resolve disputes relating to the form and subject of an interconnection agreement that may arise.  The terms and conditions for interconnection of telecommunications networks should be based on the agreement reached between the parties to an interconnection agreement.  A negotiating party to an interconnection agreement should not:

  • Intentionally mislead the other party
  • Coerce the other party into making an agreement that it would not otherwise have made or intentionally delay or obstruct negotiations

The interconnection agreement should be filed with the CAK for approval at least 14 days prior to the date of its implementation.  The CAK may request information from the parties that it considers necessary to evaluate the terms and conditions and the charges therein, and request that the agreement be modified in such manner as it may determine. 

Roaming

The Kenya Communications Regulations, 2001 (the 'Communication Regulations') define the term 'roaming services' as 'a type of telecommunications or radio communications service that enables subscribers of one mobile cellular communications system to utilise 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.'

Mobile cellular telecommunications licensees may enter into agreements to provide roaming services on a reciprocal basis to every other licensee of mobile cellular service that requests such service.

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, including such subscribers that are located within any portion of the licensee's authorised geographic service area where facilities have been constructed and the provision of a service to subscribers has commenced, if such subscribers are using mobile equipment that is technically compatible with the licensee's base stations.

Last modified 5 Oct 2016
Consumer protection

The Kenya Information and Communications (Consumer Protection) Regulations 2010 (the 'Consumer Protection Regulations') primarily caters to the rights and obligations of customers of telecommunication services. 

Under these regulations, a customer has the right to:

  • Receive clear and complete information about rates, terms and conditions for available and proposed products and services
  • Be charged only for the products and services that they subscribe to
  • Where possible, select a service provider and service of the customer's choice
  • Personal privacy and protection against unauthorised use of personal information
  • Accurate and understandable bills for products and services authorised by the customer, and to prompt fair redress in the event of a dispute in the provision of the products and services
  • Protection from unfair trade practices, including false and misleading advertising and anti-competitive behaviour by licensees
  • Ensure that all its customers can access operator assistance services
  • Equal opportunity and access for customers in the same or at, substantially, the same tariff to the same type and quality of service available or appropriate technologies required to serve specific customers

Licensees on the other hand have an obligation to, inter alia:

  • Establish a customer care system within which customers can make inquiries and complaints concerning its services
  • Establish mechanisms that enable parents and legal guardians to restrict children from accessing harmful content and information
  • Provide a clear and understandable description of available services, rates, terms, conditions and charges for such services and publish the information within such periods as determined by the CAK
  • 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, storing, or using other kinds of interception or surveillance methods for communications and related data
  • Permit calls to international and national emergency numbers which are free of charge
Last modified 5 Oct 2016
Taxes and fees

The licence fees are determined based on the market segment to be serviced.  A mobile operator is required to pay a licence application fee when making an application for a licence as a telecommunications service provider under the terms of the KICA.  Apart from the initial licence fee application, a telecoms operator should also pay the CAK an annual operating fee, an access fee for frequency spectrum and an annual spectrum fee.   

Last modified 5 Oct 2016
Enforcement

The KICA and its associated regulations have numerous provisions with obligations on licensees.  Below are some of the key sanctions/penalties arising from a breach of the KICA provisions:

Telecommunication

  • The KICA forbids the provision of telecommunication services without a licence. Contravention of this section leads to conviction; to a fine not exceeding One Million Kenyan Shillings (KES 1,000,000) (approximately USD 10,989.01), or imprisonment for a term not exceeding five years, or both.
  • Under the KICA, any contravention of the general regulations for telecommunication services is an offence whereby offenders shall be liable on conviction to a fine not exceeding Three Hundred Thousand Kenyan Shillings (KES 300,000) (approximately USD 3,296.70), or to imprisonment for a term not exceeding three years, or both.
  • Under the KICA, any person who dishonestly facilitates or obtains a service provided by a person authorised under this Act to provide telecommunication services, with intent to avoid payment of any charge applicable to the provision of that service, commits an offence and shall be liable on conviction to a fine not exceeding One Million Kenyan Shillings (KES 1,000,000) (approximately USD 10,989.01), or imprisonment for a term not exceeding five years or to both.
  • Under the KICA, any person who uses a licensed telecommunication system improperly to send a grossly offensive message or one that causes needless anxiety to another person commits an offence and is liable upon conviction to a fine not exceeding Fifty Thousand Kenyan Shillings (KES 50,000) (approximately. USD 549.45), or to imprisonment for a term not exceeding three months or to both. Please note: This provision has been declared unconstitutional and invalid by the High Court of Kenya in a recent case of Geoffrey Andare v Attorney General & 2 others [2016] eKLR for unjustifiably violating Article 33 and 50 (2) (n) of the Constitution of Kenya.
  • Under the KICA, a person who intentionally modifies 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 fine not exceeding Three Hundred Thousand Kenyan Shillings (KES 300,000) (approximately USD 3,296.70), or to imprisonment for a term not exceeding three years, or to both.
  • Under the KICA, interception and disclosure of messages is an offence and the offender shall be liable on conviction to a fine not exceeding Three Hundred Thousand Kenyan Shillings (KES 300,000) (approximately USD 3,296.70), or imprisonment for a term not exceeding three years, or both
  • A person who unlawfully tampers with a telecommunication plant with the intent to prevent, obstruct or delay transmission of any message commits an offence and is liable, on conviction to a fine of not less than Five Million Kenyan Shillings (KES 5,000,000) (approximately USD 54,945.05) or to imprisonment for a term not less than ten years or to both.
  • A person who severs licensed telecommunication equipment with intent to steal commits an offence and is liable, on conviction, to a fine of not less than Five Million Kenyan Shillings (KES 5,000,000) (approximately USD 54,945.05) or to imprisonment for a term of not less than 10 years or to both.

Radio Communication

Any person who establishes or uses radio communication status or apparatus without a valid licence from the CAK commits an offence and is on conviction liable to a fine not exceeding Five Million Kenyan Shillings (KES 5,000,000) (approximately USD 54,945.05) or to imprisonment for a term not exceeding three years, or to both.

Last modified 5 Oct 2016
Contacts
William I Maema
William I Maema
Partner
T +254 (20) 2710992
Florence Guthfreund-Roland
Florence Guthfreund-Roland
Avocat à la Cour and Partner
T +33 1 40 15 25 08
Last modified 5 Oct 2016