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Kenya

eSignature Legality in Kenya

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.

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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:

  • End user agreements including sales & service terms, new retail account opening documents, invoices, shipment details, user manual, EULAs, policies

Use Cases for Qualified Signatures

Use cases where a QES 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
  • HR documents such as Employment Contracts, benefits paperwork and other new employee onboarding processes, but not termination notices
  • Government documents and certificates issued by authorities to citizens in Kenya
  • Documents pertaining to provision of financial and telecommunications services in Kenya

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 (eg. 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:

  • The creation or execution of a will
  • Negotiable instruments
  • Documents of title

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 (E-CSP: Electronic Certification Service Providers)

Company Category Website
Emudhra Technologies Limited E-CSP https://emudhra.ke/ https://emudhra.com
GEDA LIMITED E-CSP https://geda.co.ke/
TENDAWORLD LTD E-CSP https://tenda.world
THE INFORMATION AND COMMUNICATION TECHNOLOGY AUTHORITY (ICTA) E-CSP https://www.icta.go.ke/

General Definitions

Simple Electronic Signature (SES)

A Simple Electronic Signature (SES) refers to any electronic data that is logically associated with other electronic data and used by a person to sign. This can include:

  • Typing a name at the end of an email,
  • Clicking an “I accept” button,
  • Pasting a scanned image of a signature, or
  • Using a stylus or finger to draw a signature on a touchscreen.

While SES can indicate intent to sign, it lacks advanced identity verification, integrity protection, or security features, making it the least secure type of electronic signature. It is legally valid in many jurisdictions but may not carry strong evidentiary weight without additional context or proof.

Advanced Electronic Signature (AES)

An Advanced Electronic Signature (AES) is a more secure form of electronic signature that must meet the following criteria:

  • it is uniquely linked to the signatory
  • it is capable of identifying the signatory
  • it is created using means that are under the sole control of the signatory, and
  • it is linked to the signed data in such a way that any subsequent change in the data is detectable.

AES provides enhanced legal reliability compared to SES and is often supported by multi-factor authentication, encryption, and audit trails.

Qualified Electronic Signature (QES)

A Qualified Electronic Signature (QES) is a type of Advanced Electronic Signature that additionally:

  • is created using a qualified signature creation device (such as a secure token or smart card); and
  • is backed by a qualified digital certificate issued by a recognized or accredited trust service provider.

QES provides the highest level of trust and legal assurance, and in many jurisdictions (like the EU under eIDAS, India IT Act, etc), it holds the same legal status as a handwritten signature.

Digital Signature

A Digital Signature is a specific technological implementation of an electronic signature that uses asymmetric cryptography. It allows a verifier to:

  • confirm that the signature was created using the private key corresponding to the signer’s public key; and
  • ensure that the signed message or document has not been altered after signing.

Digital signatures are the underlying cryptographic mechanism used in both AES and QES. They offer strong security guarantees such as authenticity, integrity, and non-repudiation and are often implemented through Public Key Infrastructure (PKI) systems.

External Resources

https://ke-cirt.go.ke/npki/
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.