The Validity of Electronic Signatures in Commercial Transactions.

Electronic signatures are legal and acceptable in Kenya.

Governing Legislation

The Kenya Information and Communications Act and the Evidence Act are the principal legislations that govern the use of electronic signatures in Kenya. However, the Business Laws Amendment Act, 2020 also amended the Law of Contract Act, the Registration of Documents Act, and the Land Registration Act to recognize the use of advanced e-signatures.

Electronic Signatures vis-a-vis Advanced Electronic signatures

An e-signature, according to Section 2 of the Kenya Information and Communications Act (“the Act), refers to data in an electronic form which is affixed to or is logically associated with other electronic data that may be used to identify the signatory in relation to the data message and to indicate the signatory’s approval of the information contained in the data message. The Act also defines an advanced e-signature as an e-signature which is uniquely linked to and capable of identifying the signatory, is created by means the signatory can maintain under their sole control, and is linked to the data to which it relates in such a manner that any subsequent change to the data is detectable. Advanced e-signatures are accompanied by an e-signature certificate issued by an accredited certification service provider, who is licensed by the Communications Authority of Kenya and registered with the Data Commissioner. It is noteworthy, however, that advanced e-signatures are preferrable to regular e-signatures as the former are legal equivalents of wet-ink signatures.

Recognition of Electronic Signatures

Section 83O of the Act outlines the requirements for a signature that ought to be complied with. Sub-section 1 states that where any law requires a signature of a person, that requirement is met in relation to an electronic message if an advanced electronic signature is used that is as reliable as was appropriate for the purpose for which the electronic message was generated or communicated, in light of all circumstances, including any relevant agreement. This sub-section applies whether the requirement it refers to is in the form of an obligation or whether the law simply provides consequences for the absence of a signature.

Subsection 3 of the Section then goes ahead to state that the advanced electronic signature will only be reliable if:

1. It is generated through a signature-creation device;
2. The signature creation data are, within the context in which they are used, linked to the signatory and to no other person;
3. The signature creation data were, at the time of signing, under the control of the signatory and of no other person;
4. Any alteration to the electronic signature made after the time of signing is detectable; and
5. Where the purpose of the legal requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alteration made to that information after the time of signing, is detectable.

On the other hand, Section 83P of the Act recognizes electronic signatures. It is to the effect that where any law provides that information or any other matter shall be authenticated by affixing a signature or that any document shall be signed or bear the signature of any person, then, notwithstanding anything contained in that law, such requirement shall be deemed to have been satisfied if such information is authenticated by means of an advanced electronic signature affixed in such manner as may be prescribed by the Cabinet Secretary.

In recognition of e-signatures, Section 106F of the Evidence Act states that the court shall presume that every electronic agreement containing the electronic signatures of the parties was concluded by the digital signatures of the parties.

In addition, the evidence Act under Sections 106C and D outlines the requirements of proving electronic signatures. Section 106C provides that except in the case of a secure signature (advanced signature), if the electronic signature of any subscriber is alleged to have been affixed to an electronic record, the fact that the signature is the electronic signature of the subscriber, must be proved.

Section 106 D then authorizes a court to direct the following in order to ascertain whether an electronic signature is that of a person by whom it purports to have been affixed:

1. That person or the certification service provider to produce the electronic signature certificate; or
2. Any other person to apply the procedure listed on the electronic signature certificate and verify the electronic signature purported too have been affixed by that person.

Can All Documents Be Executed Electronically?

The answer is no. Not all documents can be executed by way of an e-signature. In this regard, Section 83B (1) of the Act stipulates that an electronic transaction shall not apply to any rule or law requiring writing or signatures in any of the following matters:

1. The creation or execution of a will; and
2. Negotiable instruments.

Conclusion

The Communications Authority of Kenya, pursuant to Section 83E of the Act, is mandated with the registration and licensing of certification service providers. Currently, there are four licensed certification service providers in Kenya. You should use a secure e-signature (an advanced e-signature) in case you want to execute a document electronically. Otherwise, you have to prove that the signature affixed is that of the subscriber as per Section 106C of the Evidence Act.

Disclaimer: The information contained herein is for information purposes only and does not constitute binding legal advice. Anyone desirous of relying on it should seek independent legal advice.