Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR when the parties were given an opportunity to submit on the Data Protection Act, all the parties requested the Court to take judicial notice of the Data Protection Act. There were however differing opinions as to how we should do so. The Petitioners were emphatic that we should take judicial notice of the passing of the Act and nothing more, while the Respondents submitted that taking judicial notice of the Act, entailed consideration of the Act’s provisions. 839. Section 60 (1) of the Evidence Act obliges this Court to have judicial notice of all written laws, and provides as follows in this regard: “60. (1) The courts shall take judicial notice of the following facts – (a) all written laws, and all laws, rules and principles, written or unwritten, having the force of law, whether in force or having such force as aforesaid before, at or after the commencement of this Act, in any part of Kenya” 840. The role and effect of judicial notice is explained in Halsbury’s Laws of England, Fourth Edition at paragraph 100 as a special mode of proving evidence, and it is stated therein that in addition to the adducing of documents and testimony of witnesses, the other modes of proving or establishing a fact are formal admissions, judicial notice, presumptions and inspection. Judicial notice is therefore a rule in the law of evidence that allows a fact to be introduced into evidence, if the truth of that fact is so notorious or well known, or so authoritatively attested, that it cannot reasonably be doubted. 841. Furthermore, facts and materials admitted under judicial notice are accepted without being formally introduced by a witness or other rule of evidence, and they are even admitted if one party wishes to lead evidence to the contrary. It is thus our opinion that we will not only take judicial notice of the fact that the Data Protection Act 24 of 2019 was enacted, but also of the law contained therein, as expressly provided by section 60 (1) of the Evidence Act. In this respect we note that the date of commencement of the Data Protection Act 24 of 2019 was 25th November 2019. 842. We have observed in our earlier findings that the protection of personal data depends largely on a legal, regulatory and institutional framework that provides for adequate safeguards, including effective oversight mechanisms. This is especially the case with NIIMS, whereby a vast amount of personal data is accessible to State, and data subjects currently have limited insight into and control over how information about them and their lives is being used. 843. Having taken judicial notice of the existence of the Data Protection Act, our focus in our analysis of the issues raised by the parties, is the extent to which the Act complies with internationally accepted standard on data protection. Parties in this respect made reference to the EU GDPR which provides for principles of data protection. This is however a regional negotiated regulation. Likewise, the United Nations Principles on Personal Data Protection and Privacy which were cited by some of the parties are only applied by the United Nations System Organizations in carrying out their mandated activities. In considering this issue, we take the view, and will be guided by the principles developed by the Organisation for Economic Co-operation and Development (OECD) namely the OECD Privacy Principles, which is in our view a more comprehensive and internationally recognized data privacy and protection framework that we deem most appropriate for our purposes. We also note that the said principles have been replicated in the African Union Convention on Cyber Security and Personal Data Protection. 844. The first set of principles in the OECD Privacy Principles relate to the collection, processing and use of data. In this respect, the Collection Limitation Principle, which provides that there should be limits to the collection of personal data and any such data should be obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the data subject. In addition, the Data Quality Principle provides that personal data should be relevant to the purposes for which they are to be used, and, to the extent necessary for those purposes, should be http://www.kenyalaw.org - Page 139/174