The Kenya Information and Communications Act, No. 2 of 1998 (KICA) recognizes the use of advanced electronic signatures in Kenya as equal to traditional handwritten signatures commonly referred to as wet ink signatures.
The Business Laws Amendment Act, 2020 (which came into force on 18 March 2020) also amended several statutes (the Law of Contract Act, the Registration of Documents Acts, and the Land Registration Act) to recognize the use of advanced electronic signatures.
The KICA defines an Electronic Signature as data in “electronic form affixed to or logically associated with other electronic data which may be used to identify the signatory about the data message and to indicate the signatory’s approval of the information comprised in the data message.”
Legal Recognition of Electronic Signature
The KICA regulates electronic and certificate-based digital signatures. The e-signatures are in:
- Simple Electronic Signatures
- Advanced Electronic Signatures (AES).
A simple electronic signature is 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.
AES offers a higher level of security, making it suitable for more sensitive transactions. To enjoy this privilege, section 83 of the KICA mandates compliance with the following requirements:
1. Where the law requires a signature to be affixed, an AES shall be used to meet that requirement. Additionally, the AES used should be as reliable as is appropriate for the purpose it is being used.
2. An AES is considered to be reliable to satisfy the requirement referred to in subsection (1) if:
- It is generated through a signature-creation device (SCD).
- The signature creation data is uniquely linked to the signatory and to no other person.
- The signature creation data was, at the time of signing, under the sole control of the signatory.
- Any alteration to the e-signature made after the time of signing is detectable.
- When the legal requirement for a signature serves to guarantee the integrity of the information it refers to, any changes made to that information after the time of signing are detectable.
Notable Changes
None.
Types of Permitted Electronic Signatures
| Types of Permitted Signatures | Statute and section | Unique features |
| Simple Electronic Signatures | Kenya Information and Communication Act No.2 1998. Section 2(1). | No unique feature other than being data in electronic form. |
| Advanced Electronic Signatures | Uniquely linked to the signatory.Can identify the signatory.Means of creation in the signatory’s sole control.Attached to the data it relates to so that any subsequent change to the data is detectable. |
Documents That May be Signed Electronically
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.
Exclusions for the Applicability of Electronic Signatures
The use of electronic signatures is prohibited in the following documents:
- Creation or execution of wills
- Negotiable instruments
- Documents of title
Other Applicable Legislation
The primary legislation governing information and communication in 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 is 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
Disclaimer
The information on this site is for general information purposes only and is not intended to serve as legal advice. Laws governing the subject matter may change quickly, so Flowmono cannot guarantee that all the information on this site is current or correct. Should you have specific legal questions about any of the information on this site, consult a legal practitioner in your area.
Reference: https://kn.co.ke/an-overview-of-electronic-signing-in-kenya/
