The Kenyan Constitution allows for the use of digital certificates for the purposes of document signing. This was first seen in the KICA Act.
The KICA Act defines the following ;
“advanced electronic signature” means an electronic signature that meets all the following requirements—
(a) is uniquely linked to the signatory;
(b) is capable of identifying the signatory;
(c) it is created using means that the signatory can maintain under his
sole control; and
(d) it is linked to the data to which it relates in such a manner that any subsequent change to the data is detectable;
It also defines “certificate” means a record which is issued by a certification service
provider for the purpose of supporting a digital signature that purports to
confirm the identity or other significant characteristics of the person who holds a
particular key pair; identifies the certification service provider issuing it; names
or identifies the person to whom it is issued; contains the public key of the person
to whom it is issued; and is signed by a responsible officer of the certification
service provider issuing it;
It also defines the “certification service provider” means a person who has been granted a license to issue a digital signature certificate.
Now in 2020, The Business law saw some amendments to clearly define how digital signatures can be used.
These are as follows:
The Law of Contract Act, (Cap 23 Laws of Kenya) (the “LCA”)
the Act now incorporates the above definition of an advanced electronic signature under the LCA and amends the definition of ‘signing’ to include signing by way of an advanced electronic signature.
This aligns the LCA to the provisions of the KICA act, thus giving parties to a contract added the security assurance of signing contacts with digital certificates.
The Registration of Documents Act (Cap 285 Laws of Kenya) (the “RDA”)
The Act amends the RDA to include the definitions of advanced electronic signature and electronic signature (as defined under KICA). Previously, all documents presented for registration at the Registrar of Documents must have been signed-in ‘wet’ ink.
Separately, the Act also amends the RDA to grant,
the Registrar of Documents the power to establish and maintain the Principal and Coast registries in electronic form; and
transacting parties the option of filing documents in electronic form.
The Survey Act (Cap 299 Laws of Kenya)
The Act amends expands the definition of signing/ signature under the Survey Act to include advanced electronic signatures as well.
The Survey Act now allows: the Seal of the Survey of Kenya to be processed electronically and bear the prescribed security feature;
surveyors to execute and deposit any survey plans, field notes, and computations with Director both physically and digitally.
the Director of Survey to authenticate the above documents both physically and digitally.
The Stamp Duty Act (Cap 480 Laws of Kenya)
The Act expands the definition of “stamp” under the Stamp Duty Act to include a mark embossed or impressed by electronic means; and amends section 119 of the Stamp Duty Act to permit the Cabinet Secretary for National Treasury to make regulations with respect to electronic stamping, to give effect to the provisions of the Stamp Duty Act.
The Land Registration Act, (No. 3 of 2012) (the “LRA”)
Definitions under the LRA have been modified by the enactment of the Act. The LRA:
has now adopted the definitions of advanced electronic signature and electronic signature (as defined under KICA); expands the definitions of ‘signatures to include electronic signature; and expands the definition of an “instrument” to include the documents listed electronic form (not only physical) and introduces the concept of an electronic seal.
The Act also expands how documents may be executed by introducing section 44 (3A) of the LRA. This provides that a document processed and executed by way of an advanced electronic signature by a person consenting to the document is valid.
The Act also amends Section 45 (3) of the LRA to allow for electronic processing and execution of documents (if both parties give their consent).
The amendments are in line with the Government policy to ensure the digitization of land transactions.
The Kenya Information and Communication Act (Cap 411 A Laws of Kenya)
The Act deletes section 83B(c) of the Kenya Information and Communication Act, which prohibited persons from using advanced electronic signatures to sign documents of title. This means documents of title can be signed using digital signatures.
In summary, lots of legal documents eg titles, land, contracts can now be digitally signed. The ramifications are refreshing, this lets you forget standing hours in line waiting to hand over a document or courier/transport fees required by “wet ink” signed documents. More importantly, the cryptographic features that these signatures employ, mean that your document can not be altered in any way and that the recipient can trust that the document came from only you.
Contact Us for inquiries for digital certificates for document signing.