The Legality of eSignatures in Kenya

Introduction

In an increasingly digital world, Kenya has embraced electronic signatures (eSignatures) as a legitimate means of executing documents and agreements. This technological advancement has fundamentally transformed how individuals, businesses, and government entities conduct transactions.

Much like a handwritten signature, an eSignature demonstrates a party’s willingness to enter into a transaction. It represents data in electronic form that is logically associated with other electronic data and serves two primary purposes:

1. Identifying the signatory in relation to the data message; and
2. Indicating the signatory’s approval of the information contained within the message.

Notably, the implementation of eSignatures in Kenya, has yielded numerous benefits that make them an essential tool in modern transactions. For instance, eSignatures provide unmatched convenience, allowing parties to sign documents remotely and at any time, thereby accelerating processes and eliminating the need for physical presence. They further enhance efficiency by reducing the time required to execute agreements and lowering costs associated with printing, scanning, and courier services. Additionally, they offer robust security features, including encryption, tamper detection, and audit trails, ensuring the authenticity and integrity of signed documents.

Legal Recognition of eSignatures in Kenya

In Kenya, an eSignature is considered legal and the legal framework for eSignatures is well-established, providing a foundation for their use in a wide range of transactions. The primary statute that oversees the use of electronic signatures is the Kenya Information and Communication Act (the “Act”).

Notably, an electronic signature could be a scanned image of a handwritten signature that can be copied and pasted. However, the Act provides that where a law requires that information or any other matter be authenticated by affixing a signature or that any document be signed, then, this requirement is satisfied if an advanced electronic signature is used. As such, only advanced electronic signatures are legally acceptable as substitutes for wet ink signatures on documents where the law mandates a signature.

An advanced electronic signature refers to an electronic signature which meets all the following requirements;

1. It is uniquely linked to the signatory;
2. It is capable of identifying the signatory;
3. It is  created using means that the signatory can maintain under their sole control; and
4. It is linked to the data to which it relates in such a manner that any subsequent change to the data is detectable.

The Business Laws (Amendment) Act, 2020, enhanced the recognition of eSignatures by amending statutes such as the Law of Contract Act, the Survey Act, and the Registration of Documents Act to broaden the definition of “sign” to include the use of advanced electronic signatures. This has facilitated the adoption of eSignatures in various sectors, including: execution of contracts, approving transactions on digital banking platforms, signing employment contracts and human resource related documents remotely, government services such as filing forms, granting licenses, and processing payments electronically, cross-border transactions, where parties in different jurisdictions can finalize agreements without physical meetings.

Electronic Signatures in Legal Proceedings

The Judiciary has embraced electronic signatures wherein pleadings and any other documents filed in courts are in both printed and electronic form. Pursuant to the Electronic Case Management Practice Directions, 2020, signatures for electronically filed court documents may take various forms including;

1. non-electronic signature where the person may sign a document non-electronically and the document shall be scanned for electronic filing; or
2. computer tablet signature, where the person may electronically sign a document using a computer tablet or similar technology.

Further, a registered filer’s login credentials and password, used for submitting documents through the judiciary’s electronic filing system, together with a digitized, electronic, or scanned representation of a non-electronic signature and a signature block, serves as the registered filer’s signature on all electronically filed court documents.

On this basis, a signature on an electronically filed document is presumed valid and authentic until established otherwise by convincing evidence. An advocate or a party who disputes the authenticity or validity of a signature on an electronically filed court document may file an objection to the signature within thirty (30) days after the advocate or party has come to know or should have known the signature was not authentic or valid.

Authentication of Electronic Signatures

For electronic communications and basic contracts, the law does not impose a mandatory requirement for authentication of electronic signatures. The Act explicitly provides that an offer and acceptance in contract formation may be expressed through electronic messages, and contracts formed via electronic messages are not denied validity or enforceability solely because of their electronic nature. Similarly, declarations of intent or statements between the originator and the addressee of an electronic message are recognized as legally valid.

However, authentication is necessary to support the validity of advanced electronic signatures that are contested, to ensure that  they belong to the signatory and meet the criteria for advanced electronic signatures. Authentication of the electronic signatures is conducted by third parties known as Certification Service Providers (CSPs) and the Act provides for their licensing by the Communications Authority (CA) pursuant to the Kenya Information and Communications (Electronic Certification and Domain Name Administration) Regulations 2020. These CSPs issue digital signature certificates for the purpose of validating an electronic signature, wherein the certificate confirms the identity or other significant characteristics of the person who holds a particular key pair; identifies the certification service provider issuing it; names or identifies the person to whom it is issued; contains the public key of the person to whom it is issued; and is signed by a responsible officer of the certification service provider issuing it.

Pursuant to the Kenya Information and Communications (Electronic Certification and Domain Name Administration) Regulations 2010 (the “Regulations”), the CA may also recognize foreign CSPs as certification service providers, where the foreign CSPs:

1. is duly licensed in the country in which it operates;
2. complies with the internationally acceptable standards and requirements under the Act and the  Regulations; and
3. has established a local agent to provide the certification services in Kenya.

Additionally, documents with e-signatures must be verified in the manner described above, in order to be admitted and relied on as evidence in Kenyan courts, that is, through the provision of a digital signature certificate by the CSPs. Particularly, the Evidence Act provides that to ascertain whether an electronic signature is that of a person by whom it purports to have been affixed, a court may direct: (a) that person or the certification service provider to produce the electronic signature certificate; or (b) any other person to apply the procedure listed on the electronic signature certificate and verify the electronic signature purported to have been affixed by that person.

Limitation of eSignatures in Kenya

Despite their numerous benefits, eSignatures are subject to certain limitations. Section 83B of the Act outlines specific restrictions, stating that eSignatures are not permissible for:

1. The creation or execution of wills, codicils, and testamentary trusts.
2. Negotiable instruments such as promissory notes and cheques.

Further, in practice, documents of title including those relating to registration of various interests in land under the Land Registration Act, demand wet-ink signatures.

Challenges and Practical Considerations

While Kenya has made significant progress in eSignature adoption, the following challenges continue to hinder its full potential to secure utilization;

1. Unequal access to reliable internet and digital devices, particularly in rural areas, limits the widespread adoption of eSignatures.
2. Many individuals and businesses remain unaware of the legal validity and benefits of eSignatures. Bridging this knowledge gap through targeted awareness campaigns and training programs is essential.
3. The risk of fraud, hacking, and misuse of eSignatures necessitates robust security measures, such as multi-factor authentication and end-to-end encryption, to safeguard digital transactions and build trust.
4. Advanced electronic signature solutions can be expensive for small businesses and individuals.

Conclusion

Electronic signatures have transformed the transactional landscape in Kenya, offering unparalleled convenience and efficiency. Their legal recognition under the Kenyan law underscores their growing importance in modern commerce and governance and it also offers the necessary confidence for wider adoption. However, it is crucial to remain mindful of their limitations and ensure compliance with statutory requirements. Further, addressing challenges such as the digital divide and cybersecurity risks is key to unlocking their full potential. As technology continues to evolve, eSignatures are poised to play an even more significant role in shaping the future of legal and commercial interactions.

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