[kictanet] Law to ban persons not returning money received by error

Wed Jun 24 13:06:21 EAT 2020

Hi Bomu, Kathy, Beryl, Maria,  Gabriel and Waudo

I agree that Section 35 of the Computer Misuse and Cybercrimes Act is quite
clear on this however I argue that ingredients for crime were adequately
catered for under previous legal regimes. My worry is the obsession we
sometimes have with attacking service providers for crimes committed by
platform users and trying to apportion blame to the service provider who is
basically a pipeline for value.  If today someone withdraws money that was
erroneously sent having attempted a reversal and maybe failed, basic
procedures like filing an OB must be followed. Complaints are valid but to
the right audience in this case should be, to quote Akothee, "Call polis!"

Kind regards,
 Rosemary Koech-Kimwatu
 Advocate
 Head of Public Policy and Regulatory Affairs - Oxygene MCL
 Tel: +254 718 181644

On Wed, Jun 24, 2020 at 11:08 AM Kathy Mwai via kictanet <
kictanet at lists.kictanet.or.ke> wrote:

> Coming from the thought that Safaricom should have implemented this ages
> ago, I am wondering if perhaps they would think that's stretching their
> 'business mandate' too far? Like their business is to allow you to send and
> receive money, period. However, I guess the issue of responsible business
> comes up. One of the easiest things I would think they can do is to send a
> message to the wrong recipient as soon as possible and ask them to make the
> reversal, failure to which they read them the riot act as explained in
> the Computer Misuse and Cybercrime Act cited above? Back in the day, when
> they used to have system errors and it would be possible to make free
> calls, they'd be able to charge your account in retrospect as soon as the
> system was fixed. In which case, it should be possible to provide a
> reprieve to the aggrieved Mpesa user...
>
> On Wed, 24 Jun 2020 at 10:50, Okoyo Gabriel via kictanet <
> kictanet at lists.kictanet.or.ke> wrote:
>
>> I think to this regard the Computer Misuse and Cybercrime Act offers a
>> solution. It creates the offence under Section 35.
>>
>> "person who* intentionally hides or detains* any electronic mail, *message,
>> electronic payment*, credit and debit card which was found by the person
>> or *delivered to the person in error* and which *ought to be delivered
>> to another person*, commits an offence and is liable on conviction a
>> fine not exceeding two hundred thousand shillings or imprisonment for a
>> term not exceeding two years or to both".
>>
>> Or what do you think?
>>
>> On Wed, Jun 24, 2020 at 10:23 AM Rosemary Koech-Kimwatu via kictanet <
>> kictanet at lists.kictanet.or.ke> wrote:
>>
>>> Hi Listers,
>>>
>>> I come from the school of thought where we don't need to come up with
>>> laws for every seemingly new vice perpetrated through technology. This is
>>> theft, similar to the case of the guy from Embu who build a house with
>>> money erroneously deposited in his bank account
>>> https://nairobiwire.com/2020/06/man-in-tight-spot-after-building-house-with-money-mistakenly-deposited-in-his-bank-account.html
>>> .
>>>
>>> The Penal Code CAP 63:
>>> 268.
>>> Definition of stealing
>>> (1)
>>>
>>> A person who fraudulently and without claim of right takes anything
>>> capable of being stolen, or fraudulently converts to the use of any person,
>>> other than the general or special owner thereof, any property, is said to
>>> steal that thing or property.
>>>
>>>
>>> Kind regards,
>>>  Rosemary Koech-Kimwatu
>>>  Advocate
>>>  Head of Public Policy and Regulatory Affairs - Oxygene MCL
>>>  Tel: +254 718 181644
>>>
>>>
>>>
>>>
>>> On Wed, Jun 24, 2020 at 9:25 AM Barrack Otieno via kictanet <
>>> kictanet at lists.kictanet.or.ke> wrote:
>>>
>>>> Hi Daudi,
>>>>
>>>> This is extreme, i think a crime should be separated from basic rights
>>>> to communicate.
>>>>
>>>> Best Regards
>>>>
>>>> On Wed, 24 Jun 2020, 8:31 am David Indeje via kictanet, <
>>>> kictanet at lists.kictanet.or.ke> wrote:
>>>>
>>>>> Listers,
>>>>>
>>>>> Something is being disccused online, initiated by Mr Boniface Mwangi:
>>>>>
>>>>> "There should be a law that anyone who receives mobile money by error
>>>>> and refuses to reverse the transaction should be banned from owning a
>>>>> mobile line. All mobile numbers are supposed to be registered using an ID
>>>>> and that persons ID should be flagged to never transact again."
>>>>> https://twitter.com/bonifacemwangi/status/1275659504647057411?s=19
>>>>>
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>>>> for people and institutions interested and involved in ICT policy and
>>>> regulation. The network aims to act as a catalyst for reform in the ICT
>>>> sector in support of the national aim of ICT enabled growth and development.
>>>>
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>>>>
>>>
>>>
>>> -
>>>
>>>
>>>
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>>> for people and institutions interested and involved in ICT policy and
>>> regulation. The network aims to act as a catalyst for reform in the ICT
>>> sector in support of the national aim of ICT enabled growth and development.
>>>
>>> KICTANetiquette : Adhere to the same standards of acceptable behaviors
>>> online that you follow in real life: respect people's times and bandwidth,
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>>
>> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
>> for people and institutions interested and involved in ICT policy and
>> regulation. The network aims to act as a catalyst for reform in the ICT
>> sector in support of the national aim of ICT enabled growth and development.
>>
>> KICTANetiquette : Adhere to the same standards of acceptable behaviors
>> online that you follow in real life: respect people's times and bandwidth,
>> share knowledge, don't flame or abuse or personalize, respect privacy, do
>> not spam, do not market your wares or qualifications.
>>
>
>
> --
> *Dream and Your Dreams Will Fall Short <kathymwai at gmail.com>...*
>
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>
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>
> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
> for people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
>
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and bandwidth,
> share knowledge, don't flame or abuse or personalize, respect privacy, do
> not spam, do not market your wares or qualifications.
>

-- 
Rosemary Koech-Kimwatu
Advocate
Legal and Regulatory Specialist- Oxygene MCL
Tel: +254 718 181644
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