Legality and enforceability of electronic signatures in Kenya*

The main law that regulates the use of electronic signatures in Kenya is the Information and Communication Act. It establishes the legal framework for the use of electronic signatures. Also, supplemental provisions for the use of electronic signatures are provided in various laws, including the Law of Contract Act, Survey Act, Registration of Documents Act, and Land Act.

Kenyan laws support the two-tier electronic signature system, which differentiates simple and advanced electronic signatures.

A simple electronic signature is data in electronic form affixed to or logically associated with other electronic data, which may be used to identify the signatory in relation to the data message and to indicate the signatory's approval of the information contained in the data message.

An advanced electronic signature is an electronic signature which meets the following requirements:

1. It is uniquely linked to the signatory.
2. It is capable of identifying the signatory.
3. It is created using means that the signatory keeps under their sole control.
4. It is capable of identifying any changes made to the document after it was signed.

Electronic signatures are widely recognized in Kenya. The rules provide that:

• The contract's validity or enforceability shall not be denied solely on the ground that it was executed in electronic form.
• When a law requires that information or other matters be in writing, the requirement is satisfied if the information is made available in electronic form and accessible for further reference.

Also, under the Evidence Act, electronic signatures and documents are generally admissible in court as evidence.

That said, when a law requires a person's signature, that requirement is met if that person uses an advanced electronic signature issued by a certified authority under Kenyan laws.

Under the law, traditional signatures are required for signing wills and negotiable instruments, such as checks, promissory notes, and bills of exchange. In most other cases, electronic signatures are generally permitted in Kenya. However, it is important to consider specific legal restrictions on the use of electronic signatures and situations where only advanced electronic signatures are acceptable.

Last updated: September 2024