Electronic transactions (e-transactions) and electronic commerce (e-commerce) were largely unaddressed by Kenyan law until 2009 when the Kenya Communications (Amendment) Act came into force to amend the Kenya Information and Communications Act. The amended Act recognises and regulates electronic e-transactions. For e-transactions to be recognized, the Act requires that they are accessible for subsequent reference.
More specifically, the Act recognizes, as valid, contracts concluded electronically. It also provides for the use of electronic signatures. Electronic signatures are deemed valid if: they are generated through a signature creation device; the signature is linked to a particular signatory and no other person; the signature is only under the control of the signatory; any alteration to the signature is detectable; and any alteration to the content secure by the signature is detectable.
Further, the amendment made changes to the Evidence Act to allow for the production and admission of records in electronic form in legal proceedings. This, however, does not apply to wills, negotiable instruments and title documents. These are therefore not recognized in electronic form.
The above statutory changes have led to the emergence of businesses that conduct their operations almost exclusively online. This growth in e-commerce has been fueled by not only the above enabling legal provisions but also by improved internet and smartphone penetration as well as availability of reliable mobile payment services provided by mobile network operators, the largest one of which is Safaricom PLC’s MPESA.
The Kenya Information and Communications Act also paves the way for the provision of government services electronically (e-Government services). This has been implemented by various government agencies, most notably:
- The Business Registration Service, which now permits registration of business entities electronically through its e-Citizen portal;
- Department of Immigration which permits applications for passports, visas and work permits via the e-Citizen portal;
- Kenya Revenue Authority, which allows for tax administration through its iTax portal;
- Ministry of Lands and Physical Planning which allows users to, among other services, search land titles and apply for registration of land transfers via the e-Citizen portal; and
- National Transport and Safety Authority, which allows applications for driving licenses, among other services, on the e-Citizen portal as well as motor vehicle search, registration, inspection application and transfer vide its Transport Integrated Management System (TIMS).
As part of the ongoing campaign to digitize government services the Kenyan Government recently initiated the ‘Huduma Namba’ campaign aimed at harmonizing registration of persons in the country under the National Integrated Identity Management system (NIIMS). At the time of this publication, the roll out of NIIMS had been delayed due to ongoing legal proceedings in the case of Nubian Rights Forum & 2 others v The Hon. Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) .