Legality of eSignatures in Kenya
Background
With the quick advancement of technology, there has been a greater need for a modern technique to approve signatories to a document. This necessity has greatly predisposed the idea of having an electronic signature in Kenya and worldwide.
It is recommended to opt for an eSignature solution that complies with Kenyan legislation, specifically the Kenya Information and Communication Act, which gives eSignatures legal parity with handwritten ones. However, some documents might need a physical signature, and local laws may vary.
Security is paramount. The chosen eSignature provider must offer robust protection, including encryption, authentication, and audit trails, to prevent unauthorized access and ensure document authenticity. Services such as BoldSign provide these security measures to meet compliance and safety needs.
Ultimately, eSignatures offer significant advantages and are widely accepted, but adherence to legal norms, ensuring security, and selecting a user-friendly service is critical for their successful integration in Kenya.
What is an eSignature
Under the guidelines for electronic signatures in Kenya, an electronic signature is defined as an electronic information component that is attached to or linked with other electronic data to establish the identity of the signer in relation to the message and to demonstrate the signer’s approval of the information contained within the message. In Kenya, such electronic signatures are legally recognized on most types of documents, provided they can be unequivocally linked to the individual signing, and there is proof to verify their legitimacy, safeguarding against any modifications or fraudulent activities. The intention of the signer to authenticate the document must be clear, reflecting a deliberate consent to the terms outlined in the document. Once these conditions are met, electronic signatures are deemed to have the same legal standing as wet-ink signatures.
Forms of electronic signatures
Electronic signatures (eSignatures) come in various forms and can be used to indicate Agreement or approval of electronic documents and transactions. Here are some common forms of electronic signatures:
- Logging into an app to authorize actions.
- Handwriting a signature on a tablet.
- Typing a name in an email.
- Clicking an acknowledgement on a website after authentication.
- Attaching a scanned handwritten signature.
- Using a voice command as a verbal agreement.
Overview of eSignature in Kenya
Generally, in Kenya, eSignature is considered legal. However new the concept might seem, it has achieved vast development in the legal realm, with the most recent being the Business Laws Amendment Act1 of 2020. The Act aimed to introduce amendments to acts such as:
- Law of Contract Act
- Survey Act
- Registration of Documents Act
- Land Act
- The Kenya Information and Communication Act
The Act regulates electronic and certificate-based digital signatures2. The Act categorizes eSignatures in two:
- Simple Electronic Signatures
- Advanced Electronic Signatures
A simple electronic signature is an information in electronic form attached to or digitally linked with other electronic information that may be used to identify a signatory concerning the data message and to show the signatory’s endorsement confined in the note. This may be in the form of a photographic image of one’s signature or typing one’s name in an electronic document.
Advanced electronic signatures [digital signatures] are defined as a form of electronic signature (Simple Electronic Signatures) meeting requirements such as3:
- It must be uniquely linked to the signatory.
- Can identify the signatory.
- Be created using means that the signatory can maintain in their control.
- Be connected to the data it relates to so that any subsequent change is detectable.
Uniquely linked to a person
Use and incorporation, their sole control
Identify the person using technological process
Easy to track down alterations made after signing
Summary analysis of types of signatures
| Types of signature | Statute and section | Unique features |
|---|---|---|
| Simple Electronic Signatures | Kenya Information and Communication Act No. 2 of 1998. Section 2, (1) |
|
| Advanced Electronic Signatures |
|
Scope and limitations of eSignature transactions
Electronic signature transactions and their utilization do not have universal legal acceptance for document finalization. Consequently, there are specific types of transactions and uses for which electronic signatures are suitable, and others are not. Below is an analysis of this, accompanied by a summarized table of the transactions.
Documents that can be signed
Electronic signatures can be employed to affix signatures and provide countersignatures on a diverse array of documents, such as:
- Human Resources
- Procurement
- Non-Disclosure Agreements (assuming they are contracts, not formal deeds)
- Software License Agreements
- Public Petitions
- Insurance Industry
- Educational Field, etc.
Exempted transactions
The Kenya Information and Communication Act, under Section 3, specifies restrictions on the use of electronic signatures, stating that they are not permissible for certain applications.
- Wills
- Title documents
- Negotiable instruments
Summary scope of limitation on application
| Transactions that can be completed in | Exempted Transactions |
|---|---|
|
|
Other applicable legislation
The primary legislation governing information and communication in Kenya is the Kenya Information and Communication Act. This Act is complemented by additional parliamentary statutes that function in various roles in conjunction with it. Among these supplementary laws that regulate the application of electronic signatures in Kenya are the Evidence Act, specifically under Sections 106C and 106D, the Stamp Duty Act under Section 119, and the Land Registration Act No. 3 of 2012, particularly within Sections 44 and 45.
Summary of applicable legislation
| Legislation | Section | Provision |
|---|---|---|
| Kenya Information and Communications Act, No. 2 of 1998 | Section 83P | Advanced eSignature bears the same legal validity as a wet ink signature. |
| Section 83B | Transactions that cannot be completed in eSignature. [Wills, title documents, and negotiable instruments.] | |
| Evidence Act | Section 106C and 106D | Evidentiary validity of electronic signatures and documents in court. |
| Stamp Duty Act Cap 480 Laws of Kenya | Section 119 | Introduction and use of electronic stamping. |
| Land Registration Act No. 3 of 2012 | Section 44 | Clarifies that documents signed with an advanced electronic signature by a consenting person are valid. [exemptions to be considered] |
To guarantee the legitimacy of an electronic signature, it is recommended to adopt the following best practices while also ensuring compliance with all relevant legal provisions:
- Verify the signer’s identity and, for business-related transactions, ensure that the person is properly empowered to represent the company when applying their signature.
- Obtain explicit consent from the person signing, which can be included in the contract itself or in a separate agreement, to indicate their intention to use the chosen electronic signature for the particular document.
- Protect the document to inhibit any alterations post-signature application.
- Maintain a comprehensive record of the signing process, documenting each action the signer takes.
How does BoldSign comply with eSignature laws in Kenya
The following elements of compliance available within BoldSign can be used to comply with Kenyan eSignature laws:
- Secure and unique signing link: A secure and unique link to sign a document is sent directly to the signer’s email address. This helps to ensure that the document is only accessed by the intended signer and cannot be tampered with.
- Password protection: Senders can specify a password that needs to be entered before viewing and signing a document. This adds a layer of security to the signing process.
- Audit trail: The IP address of the signer, along with timestamps for all major events in the signing process, are recorded in an audit trail. This provides a record of who signed the document, when, and where.
- Digital signature: The final document is digitally signed with an AATL-compliant certificate. This ensures that the document cannot be tampered with without invalidating the signature.
- Consent: Signers are asked to confirm their intent to sign electronically and are also informed that they can opt out. This helps ensure that the signer is aware of the implications of signing electronically and that they have consented to do so.
- Custom terms: Getting your signers to agree to a custom set of terms. This can be useful to ensure additional security or that the signer understands the terms of the document.
Disclaimer: Information on this page is intended to help businesses understand the legal framework of electronic signatures for this particular country.
However, Syncfusion’s officers, directors, stockholders, affiliates, attorneys, accountants, employees, or agents cannot provide legal advice. You should consult your personal attorney regarding your specific legal questions. Laws and regulations change frequently, and this information may not be current or accurate. To the maximum extent permitted by law, Syncfusion provides this material on an “as-is” basis. Syncfusion disclaims and makes no representation or warranty of any kind with respect to this material, express, implied, or statutory, including representations, guarantees, or warranties of merchantability, fitness for a particular purpose, or accuracy.’
Syncfusion makes no warranties of any kind, including but not limited to the information or the product, whether express, implied, statutory, or otherwise. To the maximum extent permitted by law, Syncfusion disclaims all conditions, representations, and warranties, whether express, implied, or statutory, with respect to this information without limitation any implied warranty of merchantability, fitness for a particular purpose, accuracy or currentness of this information.
Syncfusion nor their officers, directors, stockholders, employees, affiliates, attorneys, accountants, or agents shall be entitled to indemnification, express or implied, contractual or statutory, equitable or otherwise, under this Agreement.
1[http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2020/BusinessLawsAmendmentAct2020.PDF]
2 Kenya Information and Communication Act No. 2 of 1998
3 Ibid Section 83O (3)
4 [https://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/KenyaInformationandCommunicationsAct(No2of1998).pdf]
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