The world is going digital. The advances in technology have revolutionized how things are done around the world. Nowadays, most communications between parties, such as exchange of documents, are done electronically. This is especially very convenient in cross-border transactions.
Recently, the President of the Republic of Kenya assented to the Business Laws (Amendment) Act, 2020 (the “Act”). The Act amended several statutes with the aim of facilitating the ease of doing business in Kenya. A number of amendments introduced by the Act have now reinforced the use of digital and electronic signatures in legal transactions. The amendments are timely in the wake of the surging COVID-19 pandemic. We comprehensively discussed the key amendments introduced by the Act in our previous article.
This article delves deeper into the law on electronic and digital signatures in Kenya.
- Electronic vs. Advanced Electronic (digital) signatures
It is worth noting that while electronic and digital signatures are often used to mean the same thing, the two are different. The Kenya Information and Communications Act (KICA) defines an electronic signature as data in electronic form affixed to or logically associated with other electronic data which may be used to identify a signatory in relation to the data message and to indicate the signatory’s approval of the information contained in the data message.
Advance electronic signature (digital signature) on the other hand is defined by KICA as a type of electronic signature which meets the following requirements:
- must be uniquely linked to the signatory;
- is capable of identifying the signatory;
- is created using means that the signatory can maintain under his 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.
Therefore, electronic signatures can range from a simple electronic signature represented in a form of a scanned signature of a person as an indication of a name of a sender (not encrypted) to a digital signature that is based on cryptographic authentication of a sender by technological means in a form of a coded message or an encrypted data. This means that while digital signatures are a form of electronic signature, not all electronic signatures are digital signatures.
Legal recognition of electronic signatures
In Kenya, the law recognizes the use and validity of advance electronic signatures. Section 83P of KICA provides 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 such requirement shall be deemed to have been satisfied if such information is authenticated by means of advanced electronic signature affixed.
The Act further provides that Understanding the Use of Electronic Signatures in Kenyafor an advance electronic signature to be reliable, the following conditions must be met in addition to the ones discussed above:
- it must be generated through a signature creation device;
- the signature creation data must be linked to the signatory and to no other person;
- the signature creation data were under the control of the signatory at the time of signing;
- any alteration to the electronic signature made after the time of signing is detectable; and
- 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.
Further, in order to reinforce the validity of an electronic signature, parties to a contract may agree to its use by including a provision on the same in the contract.
In Kenya, advanced electronic signatures/certificates are issued by certification service providers licensed by the Communications Authority of Kenya
Proving validity of electronic signatures
The Evidence Act provides that except in the case of a secure signature, if the electronic signature of any subscriber is alleged to have been affixed, then the fact that such an electronic signature is the electronic signature of the subscriber must be proved.
Further, in order to ascertain whether an electronic signature is that of a person by whom it purports to have been affixed, the court may direct that the person or a certification provider to produce the electronic signature or any other person to apply the procedure listed on the electronic signature certificate and verify the electronic signature purported to have been affixed by that person.
Parties should embrace the use of electronic signatures as it enhances speed and efficacy of legal and commercial transactions. However, to avoid risks associated with electronic signatures such as forgery, it is important for parties to create measures to properly secure their electronic signatures to avoid misuse.
By Audrey Seur