eSignature Legality Summary
eSignatures are legally valid and admissible in the court of law. Kenya follows a model where eSignatures or digital signatures issued by a Certifying Authority are considered legally valid. Specific use cases for eSignatures are indicated in the Information and Communications Act.The Information and Communications Act in Kenyan law highlights that a handwritten signature isn’t always needed for a contract to be considered credible, and that contracts can’t be refused for simply being electronic.
Section 83 J of the Kenya Information and Communications Act, recognizes electronic contracts. It says, “In the context of contract formation, unless otherwise agreed by the parties, an offer and acceptance of an offer may be expressed by means of electronic messages [;] thus where an electronic message is used in the formation of a contract, the contract shall not be denied validity or enforceability solely on the ground that an electronic message was used for the purpose.”
Section 83G of the Kenya Information and Communications Act, provides that any matter that is required to be “in writing” is also satisfied if the matter is made available in an electronic form, and remains accessible so as to be usable for a subsequent reference. Notably, such a document must remain retrievable or accessible in the system for future reference.
In addition, section 83H of the Kenya Information and Communications Act, provides that for electronic documents to satisfy the requirement for valid retention of documents the record must be retained in the format in which it was originally generated, sent or received and it must contain details which will facilitate identification of the original destination, date and time of dispatch or receipt of such an electronic record.
*The information on this site is "AS IS" and for general information purposes only.
Use Cases for eSignatures ?
Use cases where an SES is typically appropriate include:
- Speedy HR document preparation with preapproved templates, easy update of each employee, new employee onboarding processes as well as 360 degree view of employee files.
- End user agreements including sales & service terms, new retail account opening documents, invoices, shipment details, user manual, EULAs, policies
- HR documents such as Employment Contracts, benefits paperwork and other new employee onboarding processes, but not termination notices
Use Cases for Qualified Signatures ?
Use cases where an AES is typically appropriate include:
- Purchase, procurement and commercial agreements including invoices, trade and payment terms, certificates, NDAs, sales & distribution agreements, order acknowledgements.
- Real estate lease agreements for residential and commercial purpose
- License agreements for software, end user license agreements EULAs
Use Cases that are not appropriate for Electronic Signatures
Use cases that are specifically barred from digital or electronic processes or that include explicit requirements, such as handwritten (e.g. wet ink) signatures or formal notarial process that are not usually compatible with electronic signatures or digital transaction management.
Sec. 83B. (1) of the Kenya Information Communication Act, stipulates that [Electronic Transaction] shall not apply to any rule or law requiring writing or signatures in any of the following matters:
(a) The creation or execution of a will
(b) Negotiable instruments
(c) Documents of title
Hence, if by any chance one does transact effect or undertake the aforementioned electronically, the Courts will be clumsy to deal with the matter.
Further, the Law of Contract Act of Kenya in section 3 provides that no suit can be based upon a contract for the disposition of an interest in land unless that contract (1) is in writing (2) is signed by all the parties thereto and (3) the signature of each person signing has been attested by a witness who is present when the contract was signed by such party. The Land Act carries similar provisions. This makes it difficult for such contracts to be executed electronically.
List of Local Trust Service Providers
| Institute | Regulatory Body/CA/DSC Providers | Supported by emSigner | Website |
|---|---|---|---|
| Communications Authority of Kenya | Controller of Certification Authorities | Yes |
http://www.ke-cirt.go.ke/index.php/knowledgebase-2/faqs/ http://www.ca.go.ke/ |
| KENET Certification Authority | CA | Yes | https://ca.kenet.or.ke/ |
“Digital Signature” means a transformation of a message using an asymmetric cryptosystem such that a person having the initial message and the signer’s public key can accurately determine
(a) whether the transformation was created using the private key that corresponds to the signer’s public key;
(b) whether the message has been altered since the transformation was made
[1] An AES is an “advanced electronic signature”, a type of electronic signature that meets the following requirements:
(a) it is uniquely linked to the signatory;
(b) it is capable of identifying the signatory;
(c) it is created using means that are under the signatory’s sole control;
(d) it is linked to other electronic data in such a way that any alteration to the said data can be detected.
[2] A QES is a specific digital signature implementation that has met the particular specifications of a government, including using a secure signature creation device, and been certified as ‘qualified’ by either that government or a party contracted by that government.
External Resources
https://www.unodc.org/res/cld/document/ken/1930/information-and-communications-act_html/Kenya_Information_and_Communications_Act_2_of_1998.pdfeMudhra, and all associates including agents, officers, employees or affiliates, are not liable for any direct, indirect, incidental, special, exemplary or consequential damages.