COURT-ADMISSIBLE

Yes

GENERAL BUSINESS USE

Yes

E-SIGNATURE LEGAL MODEL

Tiered

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.

DISCLAIMER: This information is intended to help you understand the legal framework of electronic signatures. However, eMudhra cannot provide legal advice. The law of electronic signatures is constantly evolving. This guide is not intended as a legal advice and should not serve as a substitute for professional legal advice. You should consult an attorney regarding any specific legal concerns.
eMudhra, and all associates including agents, officers, employees or affiliates, are not liable for any direct, indirect, incidental, special, exemplary or consequential damages.

ABOUT THE GUIDE

The eSignature Legality Guide is the result of legal research into the laws and practices regarding eSignature on a country-by-country basis. Each country-level analysis was conducted by local law firms located in that country, in that country’s local language. This legal analysis was then supplemented with complementary research on eSignature and digital signature technology standards conducted by independent technology experts. Together, this information is provided as a public resource to understand eSignature legality, and clarify some of the common misconceptions about international eSignature legality.

COURT-ADMISSIBLE

A basic measure of eSignature legality in a country is whether courts will admit eSignatures as evidence in court. In most countries in the world, an eSignature cannot be rejected simply because it is electronic, meaning that it should be admissible, subject to proof. Learn more about how DocuSign helps you prove an eSignature validity in court, below.

GENERAL BUSINESS USE

While there are exceptions for very specific types of transactions, eSignatures, independent of the underlying technology, may be used for the majority of general business transactions in most countries. Issues that may restrict general business use include local technology requirements or other restrictions on special transactions types. Learn more about specific transaction types, below.

E-SIGNATURE LEGAL MODEL

‘Tiered’ countries recognize Qualified Electronic Signature (QES, or the locally named equivalent) as a distinct type of eSignature. In these countries, a QES has special legal status in the form of presumed authenticity, and may be legally required for a few, specific transaction types. In spite of this, a non-QES eSignature can still be submitted as evidence in court even in Tiered countries, so long as the party presenting it has sufficient evidence to prove that it is valid. Countries imposing QES standards often struggle to promote electronic business transactions, especially across country borders. ‘Open’ countries have no such technology requirements or eSignature types that receive special legal status. Learn more about eSignature legality at https://www.emsigner.com/

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