Installing a CCTV camera or secretly recording someone in Kenya might seem like a sensible security measure, with many businesses and individuals opting for the cameras due to their affordability.
However, failing to follow the correct procedures could land you in serious legal trouble. There are multiple Kenyan laws governing privacy, data protection, and the interception of communications, and breaching these laws can result in hefty fines or even imprisonment.
Shockingly, some spouses have installed secret cameras in their homes to spy on their partners. But this is just as unlawful as it seems.
In this article, Kenyans.co.ke explores the reasons why you could end up in prison for taking such basic security precautions.
Privacy is a Constitutional Right
Article 31 of Kenya’s Constitution protects the right to privacy, including the right not to have personal or family affairs unnecessarily intruded upon.
Secretly filming or recording someone can violate this right and expose you to legal action.
Data Protection Act on Consent
The Data Protection Act (DPA) regulates how personal data - including identifiable images, videos, and audio - is collected, stored, and used.
Capturing such data without consent or a valid legal basis is unlawful. The Office of the Data Protection Commissioner (ODPC) requires clear notices where CCTV is installed, and in some cases, registration as a data controller.
A High Court case, Ondieki v Maeda (Petition E153 of 2022), confirmed that pointing a CCTV at a neighbour's property without their consent violated both privacy rights and DPA provisions.
Computer Misuse and Cybercrimes Act, 2018
Section 53 of the Act outlaws the unauthorised interception of private communications. Only authorised law enforcement officers, with a court-issued warrant, can legally intercept electronic communications.
This means that secret audio or video recording of private conversations can be an unlawful act.
Workplace and Residential Restrictions
The Employment Act requires employers to notify staff if surveillance is in place.
In residential contexts, installing cameras in bathrooms, bedrooms, or other private spaces is strictly prohibited and could amount to disturbance or voyeurism.
Penalties and Enforcement
Under the DPA, unlawful processing of personal data can lead to fines of up to Ksh5 million or 1 per cent of a company’s annual turnover -whichever is higher.
Individuals can face imprisonment for up to two years for certain privacy violations. The ODPC can also issue enforcement notices, and courts may throw out unlawfully obtained recordings as inadmissible evidence.
Individuals who install CCTV should be wary of these laws on disclosure of data from CCTV footage that could land them in jail and earn them a fine of up to Ksh3 million.
When Recording Without Consent is Legal
However, there are exceptions, such as when law enforcement agencies intercept communications with a court order during investigations.
The use of household CCTV is generally exempt from DPA requirements unless the cameras capture areas beyond your property or invade someone else’s private space.
Best Practices for Legal Compliance
To stay on the right side of the law, you are required to:
- Display clear signs informing people they are under surveillance
- Avoid recording in spaces where people expect privacy
- Register with the ODPC as a data controller if required
- Obtain consent when recording shared or public spaces that capture identifiable individuals
- Store recordings securely and only share them with authorised persons
In Kenya, your right to protect your property must be balanced against the constitutional and statutory privacy rights of others. Failing to comply with the law can transform what you believed to be a safety measure into an unlawful act.
