The Need for a Proper Regulation of E-Commerce in Kenya
Emerging industries and new types of businesses have become areas of intense competition worldwide. Electronic transactions are of growing importance to Governments, enterprises and consumers in most parts of the world. From the Kenya Information and Communications Act, electronic means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
While greater reliance on e-commerce creates significant opportunities, a lack of security and trust remains a critical barrier to such transactions. The main concerns in ecommerce are online fraud and data breaches. These concerns require adequate legal and regulatory responses to boost domestic and cross-border trade. However, the adoption of appropriate legal and regulatory framework has been hindered by the variety and complexity of cyber laws and regulations as well as the rapid evolution of technologies and markets.[UNCTD, Cyber Laws and Regulations for Enhancing E-Commerce: Case Studies and Lessons Learned at accessed March 17 para 1.] [Patrick Alushula, Regulation Gaps That Leave You Exposed When You Shop Online, Business Daily December 19, 2018 at accessed 12 March 2020.]
Against this background, this study examines key legal issues that need to be addressed to facilitate ecommerce and to make interaction on the internet more secure in general. The study reviews the Kenya’s legal and institutional framework on the regulation of ecommerce. It then highlights the challenges in the regulation of ecommerce in Kenya. The study then reviews selected best practices in addressing the common challenges in the regulation of ecommerce from other jurisdictions. This study also discusses possible options for achieving effective implementation and enforcement of the relevant laws taking into account the emergence of new technologies available on the internet and mobile platforms.
Background of the Study
The transformational developments in the ICT sector, coupled with the emergence of the internet in the second half of the 1990s transformed trade. This was further escalated by the recent widespread use of mobile technology.[UNCTD, (Supra n 1).]
In the recent past, uptake of ecommerce in many countries was hampered by inadequate ICT and electricity infrastructure, undeveloped financial markets, low purchasing power, low levels of ICT literacy and of awareness of e-commerce among consumers and enterprises, and weak legal and regulatory frameworks. However, in the light of the new technologies, new e-commerce platforms and payment solutions, some of the barriers have been overcome.[Andrew Limo, Data Protection Law May Not Unlock E-Commerce, Business Daily November 14, 2019 at accessed 13 March 2020.] [UNCTD, (Supra n 1) para 3.]
The rise of ecommerce has resulted into various vices in the commercial sector. Online fraud and data breaches have been on the rise for both consumers and enterprises, requiring adequate responses at national and international levels. The government is therefore obligated to create enabling framework to allow enterprises to take full advantage of opportunities for e-transactions using various ICT devices.[Kellen Kiambati, Removing Hurdles That Hurt Growth of E-Commerce, Business Daily September 25, 2019 accessed 16 March 2020.]
This study focuses on the relevant areas of consumer protection such as credit card and payment data protection and payment regulations. The study seeks to identify the best practices concerning cyber laws and regulations on e-commerce as well as recommendations on ways of enabling the regulatory framework, including cyber laws, for enhancing e-commerce. The study focuses on four legal areas: e-transactions, consumer protection, privacy and data protection, and cybercrime.
The study first looks into the developments in ecommerce in Kenya. It then looks into the current legal framework for the regulation of the same, citing the various inadequacies. The study then identifies the main legal concerns that need to be addressed to enable e-commerce growth in Kenya.

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