Introduction
With the rapid advancement of technology, there has been an increasing demand for a modern approach to authorizing signatories on documents. This necessity has greatly influenced the adoption of electronic signatures in Kenya and globally.
It is advisable to choose an eSignature solution that adheres to Kenyan legislation, particularly the Kenya Information and Communication Act, which grants eSignatures the same legal status as handwritten signatures. However, some documents might still require physical signatures, and local laws may differ.
Security is crucial. The selected eSignature provider must offer strong protection, including encryption, authentication, and audit trails, to prevent unauthorized access and ensure document authenticity. Services such as Signatoree provide these security measures to meet compliance and safety requirements.
Ultimately, eSignatures offer significant advantages and are widely accepted, but adhering to legal standards, ensuring security, and selecting a user-friendly service are essential for their successful integration in Kenya.
What is an e-Signature?
According to 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 identify the signer and demonstrate their approval of the information in the message. In Kenya, such electronic signatures are legally recognized on most documents, provided they can be unequivocally linked to the individual signing, and there is proof to verify their authenticity, preventing any modifications or fraudulent activities. The signer's intention to authenticate the document must be clear, reflecting 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 traditional 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:
i) Logging into an app to authorize actions.
ii) Handwriting a signature on a tablet.
iii) Typing a name in an email.
iv) Clicking an acknowledgment on a website after authentication.
v) Attaching a scanned handwritten signature.
vi) Using a voice command as a verbal agreement.
vii) Overview of eSignature in Kenya
In general, eSignatures are legally recognized in Kenya. Although the concept might seem new, it has made significant legal progress, particularly with the Business Laws Amendment Act of 2020. This Act introduced amendments to several laws, including:
a) Law of Contract Act
b) Survey Act
c) Registration of Documents Act
d) Land Act
These amendments aimed to recognize electronic signatures, which were not previously acknowledged. The primary statute governing electronic signatures in Kenya is the Kenya Information and Communication Act. This Act regulates electronic and certificate-based digital signatures and categorizes eSignatures into two types:
i) Simple Electronic Signatures
ii) Advanced Electronic Signatures
A simple electronic signature is information in electronic form attached to or digitally linked with other electronic information that can identify a signatory concerning the data message and show the signatory’s endorsement of the message. This may include a photographic image of one's signature or typing one's name in an electronic document.
Advanced electronic signatures (digital signatures) meet requirements such as:
a) Uniquely linked to the signatory.
b) Capable of identifying the signatory.
c) Created using means that the signatory can maintain under their control.
d) Connected to the data it relates to so that any subsequent changes are detectable.
e) Scope and Limitations of eSignature Transactions
Electronic signature transactions are not universally accepted for finalizing all documents. Consequently, certain transactions are suitable for electronic signatures, while others are not. Below is an analysis of this, accompanied by a summarized table of the transactions.
Documents that can be signed:
i) Human Resources
ii) Procurement
iii) Non-Disclosure Agreements (assuming they are contracts, not formal deeds)
iv) Software License Agreements
v) Public Petitions
vi) Insurance Industry
vii) Educational Field, etc.
viii) Exempted transactions:
The Kenya Information and Communication Act specifies restrictions on the use of electronic signatures, stating that they are not permissible for certain applications, such as:
i) Wills
ii) Title documents
iii) Negotiable instruments
iv) 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 laws, such as the Evidence Act (Sections 106C and 106D), the Stamp Duty Act (Section 119), and the Land Registration Act No. 3 of 2012 (Sections 44 and 45).
To ensure the legitimacy of an electronic signature, it is recommended to adopt the following best practices while complying with all relevant legal provisions:
i) Verify the signer's identity and, for business-related transactions, ensure that the person is properly authorized to represent the company.
ii) Obtain explicit consent from the person signing, indicating their intention to use the chosen electronic signature for the document.
iii) Protect the document to prevent any alterations post-signature.
iv) Maintain a comprehensive record of the signing process, documenting each action the signer takes.
How Signatoree Complies with eSignature Laws in Kenya
Signatoree provides several compliance features to adhere to Kenyan eSignature laws:
a) Secure and Unique Signing Link: A secure and unique link to sign a document is sent directly to the signer's email address, ensuring only the intended signer accesses the document.
b) Password Protection: Each person must enter their unique password before signing a document, adding a layer of security.
c) Audit Trail: The signer's IP address and timestamps for key signing events are recorded in an audit trail, providing a record of who signed the document, when, and where.
d) Internal Certificate: Once a document is fully signed, a certificate is generated with detailed step-by-step information about the document flow, including IP address and timestamp, ensuring the document cannot be tampered with without invalidating the signature.
e) Consent: Signers are asked to confirm their intent to sign electronically and are informed that they can opt out, ensuring they are aware of the implications of signing electronically and have consented to do so.
f) Custom Terms: Signers agree to a custom set of terms, which can provide additional security or ensure they understand the document's terms.
Disclaimer !
Information on this page is intended to help businesses understand the legal framework of electronic signatures for this particular country. However, Signatoree’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, Signatoree provides this material on an “as-is” basis. Signatoree 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.’
Signatoree 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, Signatoree 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.
Signatoree 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.
For more details, visit www.signatoree.com
References
1.) http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2020/BusinessLawsAmendmentAct2020.PDF
2.) Kenya Information and Communication Act No. 2 of 1998
3.) http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/KenyaInformationandCommunicationsAct(N
