Your marketing team wants to send ten thousand promotional SMS messages tonight. Before the send button is pressed, Kenyan law asks a simple question: what right do you have to message these people?
Do you need consent to send marketing messages in Kenya?
Direct marketing is processing, and the Data Protection Act 2019 applies to it. You need a lawful basis to use someone’s contact details for marketing , most commonly their consent , and people have the right to object, which must be honoured promptly. Separately, the Kenya Information and Communications Act framework addresses unsolicited commercial messages sent through telecommunications channels. Bought databases deserve particular caution: a list purchased from a broker rarely carries consent that covers your messages, and the seller will not be the one answering the complaint.
What does valid consent look like?
- A clear, specific opt-in , not a pre-ticked box or permission buried in terms and conditions.
- A record of when consent was given, through which channel, and for what.
- An unsubscribe option in every message that is honoured promptly.
- Sender identification so recipients know who is contacting them.
- A suppression list of people who opted out, kept as carefully as the list of those who opted in.
What are the risks of getting it wrong?
Complaints to the Office of the Data Protection Commissioner can lead to enforcement measures, and repeat messaging to people who have objected makes the position worse. Beyond the regulator, aggressive messaging damages sender standing with mobile network operators and causes friction with the agencies hired to run campaigns. Marketing agency contracts should allocate responsibility for consent records , who collected them, where they are stored, and who produces them if a complaint arrives. Our contract lawyers can review those agreements.
Companies reviewing marketing and data practices as a whole often fold consent, privacy notices and vendor terms into a single governance exercise , see our governance advisory services , and where messaging disputes escalate, the underlying contracts determine how disagreements are resolved. Our arbitration and ADR team can advise on those clauses. The relevant statutes are published on Kenya Law.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.