Month: November 2023

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THE MBWA KALI (FEROCIOUS DOGS) DECLARATIONS BY LOUNGES, BARS & RESTAURANTS-IMAGE RIGHTS IN KENYA

The “Mbwa Kali” Declarations by Nairobi Lounges, Bars, & Restaurants: Understanding Image Rights in Kenya

In our recent WKA Advocates newsletter, we discussed the uninformed notices issued by some entertainment venues and restaurants in Nairobi, such as #TheLoftLounge and #TheQuiverLounge. These establishments have informed their patrons about the presence of photographers, implying that customers consent to the use of their image rights by simply entering the venue. This raises a crucial question: who invited these photographers, and do patrons fully understand their privacy rights?

The increasing panic among Nairobi business owners reveals widespread ignorance about Kenya’s Data Protection Laws. Fortunately, the Office of the Data Protection Commissioner (ODPC) is taking decisive action to end this era of ignorance. With the growing collection, storage, and use of personal data by third parties, it’s critical for both businesses and individuals to familiarize themselves with the Data Protection Act, 2019 (DPA, 2019). Do data subjects in Kenya know their rights? Are data controllers aware of their legal obligations under the DPA, 2019?

Data Protection Laws in Kenya: A Growing Concern for Lounges and Restaurants

Ignorance of the law is no defense. This has been demonstrated by the recent penalties issued by the ODPC. On 26th September 2023, the ODPC imposed penalties on three Data Controllers for violating Kenya’s Data Privacy Rights and failing to comply with the Data Protection Act.

Key ODPC Penalties:

  • Mulla Pride Ltd, a digital credit provider running the KeCredit and Falcrash mobile lending apps, was fined Ksh. 2,975,000 for misusing complainants’ names and contacts for harassing messages.
  • CasaVera Lounge, a restaurant on Ngong Road, Nairobi, was fined Ksh. 1,850,000 for posting a patron’s image on social media without their consent.
  • Roma School in Uthiru was fined Ksh. 4,550,000 for sharing minors’ photos online without parental consent.

Nairobi Venues React with Misleading Notices

In response to these penalties, many Nairobi bars and restaurants, such as Evo Lounge, The Loft, Texas Barbeque, Platinum 7D, and Quiver Lounge Kilimani, have issued warning notices implying that entry to their premises constitutes consent to be photographed or recorded. Here’s an excerpt from Evo Lounge’s notice:

“Your entry and presence on the premises constitute your consent to be photographed, filmed, and/or recorded… By entering, you waive and release any claims related to the use of recorded media of you… including invasion of privacy.”

These notices are what we call Mbwa Kali Declarations. Unfortunately, many business establishments have misunderstood the penalties issued by the ODPC. Rather than respecting Kenya’s Data Privacy Laws, they resort to invalid and aggressive warnings of “implied consent.” This is not how the law works.

Data Protection Obligations for Nairobi Businesses Under the DPA, 2019

Bars, restaurants, and other establishments in Kenya must comply with the Data Protection Act, 2019, especially if they hire photographers to capture images (which constitute personal data) of their patrons for marketing purposes.

Obligations Include:

  1. Registration: All Data Controllers and Data Processors must register with the ODPC before collecting any personal data. The ODPC maintains a register of certified entities.
  2. Consent: Businesses must obtain free, informed, and express consent from patrons before collecting and using their personal data. Consent cannot be implied.
  3. Compliance: All personal data must be processed lawfully and fairly, respecting the rights of the data subjects.

The 8 Key Data Protection Principles in Kenya

Kenya’s Data Protection Act emphasizes the following principles:

  • Right to Privacy: Data must be processed with respect for privacy.
  • Lawfulness, Fairness, and Transparency: Processing must be lawful and transparent, with clear communication to data subjects.
  • Purpose Limitation: Data collection must be for specific, legitimate purposes.
  • Data Minimization: Only relevant data should be collected.
  • Accuracy: Data must be accurate and regularly updated.
  • Storage Limitation: Personal data should be stored only for as

long as necessary for its intended purpose.

  • Integrity and Confidentiality: Data must be processed securely and confidentially.
  • Accountability: Data Controllers must demonstrate compliance with the Data Protection Act, 2019.

Commercial Use of Personal Data in Nairobi

Section 37(1) of the DPA, 2019, strictly prohibits the commercial use of personal data without explicit consent or legal authorization. Any personal data collected must be anonymized to prevent identification of the individual.

Data Subject Rights in Kenya

Under Section 26 of the DPA, 2019, data subjects in Kenya have the right to:

  • Be informed about the usage of their data.
  • Access their personal data.
  • Object to the processing of their data.
  • Correct inaccurate or misleading data.
  • Have their data deleted if it’s inaccurate or unlawfully processed.

Data subjects can file complaints with the ODPC for any violations of their data rights. The ODPC has the authority to investigate and impose penalties or enforcement notices.

Nairobi Businesses Must Take These Obligations Seriously

Restaurants, bars, hair salons, gyms, and other establishments in Kenya cannot:

  • Collect personal data without registration.
  • Assume consent through “implied” warnings.
  • Use personal data indefinitely for any purpose.
  • Deny data subjects access to inspect their personal data.

Conclusion: The Misuse of “Implied Consent” by Nairobi Bars and Restaurants

Warning notices of “implied consent” issued by businesses such as #EvoLounge, #QuiverLounge, and #Platinum7D are illegal and invalid. Business owners must understand that Data Protection Officers (DPOs) are essential in ensuring compliance with data privacy laws in Kenya to avoid hefty penalties.

At WKA Advocates, we offer specialized Data Protection Officer (DPO) services to ensure businesses comply with Kenya’s Data Protection Laws.

We hope this article helps clarify the key provisions of the Data Protection Act, 2019. For further legal assistance or compliance advice, contact us at:

Email: info@wka.co.ke
Website: wakilihub.co.ke/
Phone: +254 798 03 580
Location: Nairobi Hub, Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

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HOW TO AVOID PROBATE-WKA ADVOCATES

How to Avoid Probate in Kenya

One common question was, ‘Can I avoid drawing a will and still maintain control over my estate upon my demise?’ We found it important to address this pertinent issue.

Death is inevitable, and it is essential to plan for the future, particularly regarding your property (estate). It is imprudent to live without making arrangements for how your property will devolve upon death. Such plans ensure that dependents and next of kin are well provided for, and the wishes of the deceased are respected.

The Law of Succession Act provides rules for writing a valid and enforceable will, as well as the rules for the succession of an intestate’s estate. However, Kenyan courts have often declared wills invalid or revoked them, rendering the deceased person intestate. The main disadvantage of dying intestate is the loss of control over property upon death, exposing next of kin to the arbitrary rules of intestacy and potential disputes among family members.

Fortunately, the law provides other means to maintain control over estates upon death without writing a will or dying intestate. These include survivorship, nomination, family trusts, and donatio mortis causa (gifts in contemplation of death).

1. Survivorship

In re Estate of Johnson Njogu Gichohi (Deceased) [2018] EKLR, the court stated that property can pass upon death other than by will through survivorship, particularly in cases of joint tenancies. Section 91(4) of the Land Registration Act, CAP 300 states that in joint tenancies, a co-owner’s interest automatically passes to the surviving tenant upon death by virtue of the principle of survivorship. Section 43 of the Law of Succession Act adds that in the event of simultaneous deaths, it is presumed that the younger person survives the older person, and for spouses, it is presumed they died simultaneously.

2. Nomination

A nomination is a direction by a nominator to a trustee holding an investment to pay the funds to a nominee upon the nominator’s death. In Kenya, nominations are common for savings and investments in cooperative societies and provident pension schemes. Nominations take effect upon death and are not subject to the law of succession. They can be revoked by a later nomination, subsequent marriage of the nominator, or the death of the nominee before the nominator. However, a nomination cannot be revoked by a subsequent will or codicil.

3. Family Trusts

A Family Trust is created by a Settlor through a Trust Deed, instructing a Trustee to manage assets for the benefit of the Beneficiary. Section 3D of the Trustees (Perpetual Succession) Act, 2021 Cap 164 defines a family trust, which can be living (inter vivos) or testamentary. The advantages of family trusts include avoiding probate, benefiting unrelated persons, protecting assets from creditors, benefiting multiple generations, and imposing restrictions on beneficiaries. Trusts are also valuable for estate and tax planning.

4. Donatio Mortis Causa (Gifts in Contemplation of Death)

For a gift in contemplation of death to be valid, as outlined in Cain v Moon {1896} 2 QB 283 and Section 31 of the Law of Succession Act, it must be given because of a present illness or imminent danger, be conditional upon the donor’s death, be delivered to the donee, be capable of making the subject matter of donation mortis causa, and the donee must survive the donor.

Contact Us

We at WKA Advocates have a dedicated Real Estate and Succession Planning department. If you have any questions or require assistance in avoiding probate, drawing up your family trust, or will, kindly feel free to contact us by email at info@wka.co.ke.

We hope this information helps you understand the ways to avoid probate in Kenya and maintain control over your estate upon death. Please note that this newsletter provides a general guide to the subject matter and should not be relied upon without legal advice.

For further information or legal assistance, contact us at info@wka.co.ke, visit wakilihub.co.ke/, or call +254 798 03 580. Our office is located at Nairobi Hub: Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.