Digital Aviation Document QAs: Kenya

The principal legislation on aviation in Kenya, the Civil Aviation Act No. 21 of 2013 (the Civil Aviation Act), does not make provision for the use of e-signatures. However, certain regulations under the Civil Aviation Act, such as the Civil Aviation (Air Operator Certification and Administration) Regulations, 2018 and Civil Aviation (Airworthiness) Regulations, 2018, extend the definition of a signature to include an electronic signature. Specifically, under these regulations, a ‘’signature’’ is defined as an individual’s unique identification used as a means of authenticating a maintenance record entry or maintenance record (emphasis ours). We would point out that the execution of documents by Kenyan companies would be governed by the provisions of the Companies Act No. 17 of 2015 (the Companies Act).

In Kenya, the legal recognition of electronic signatures is anchored on the Kenya Information and Communications Act (No. 2 of 1998) (KICA) and the Business Laws Amendment Act, 2020 (BLAA). Section 83P of the KICA mandates the relevant Minister to establish rules regarding the use of electronic signatures. To the best of our knowledge, no rules have so far been passed, and therefore the use of electronic signatures under KICA remains uncertain.

However, in 2020, several amendments were made to a variety of statutes by the BLAA, allowing parties to use electronic signatures to sign certain documents governed by the specific statutes including contracts which are governed by the Law of Contract Act (Cap 23 Laws of Kenya).

The Companies Act also recognises the use of electronic signatures. The term “sign” under the Companies Act includes the use of an electronic signature. This means that documents can be validly executed by companies incorporated in Kenya by electronic signatures, provided that the documents are executed either by two authorised signatories or alternatively by one director whose signature is witnessed as per section 37 (2) of the Companies Act. However, execution by a single director raises practical concerns, given that the director’s signature has to be witnessed. Additionally, the Companies Act does not define what an “electronic signature” means, and therefore, there is some uncertainty as to what would amount to an “electronic signature.”

We would also point out that there are some inconsistencies in the various laws governing the use of electronic signatures in Kenya. For instance, while the KICA requires an electronic signature to be authenticated by the issuance of a certificate, this authentication is not an express requirement under the Companies Act or any of the statutes amended by BLAA. The provisions of the Companies Act, the BLAA, and other statutes amendedbyBLAAtoallowforelectronicsignaturesareyetto be sufficiently tested before the Kenyan courts, and therefore, it is not clear if a document signed electronically under these laws would be impervious from a claim of invalidity due to the failure to obtain an authentication certificate from an Electronic Certification Service Provider (an e-CSP) as required under the KICA.

It is unclear whether the use and recognition of e-signatures under other statutes independent of KICA and its shortcomings now provide additional flexibility for parties wishing to use electronic signatures when signing documents governed by those respective statutes or whether the Kenyan courts would hold that the KICA is the principal law on e-signatures and therefore the execution of documents by use of e-signatures under any other statute other than the KICA must comply with the specific requirements set out under the KICA.

There is a variance in the requirements for a valid electronic signature under the different Kenyan statutes that recognise the use of electronic signatures. Under the KICA, there is a requirement that a “certificate” must be issued by an e-CSP to authenticate the digital signature. KICA defines a “certificate”, and the definition presumes that every time a digital signature is used, the signature must be authenticated by an e-CSP. However, there are no corresponding substantive provisions in the KICA requiring the authentication of electronic signatures. We also note that the term “digital signature,” which has been used in the definition of a certificate, is not defined under the KICA. The regulator, the Communications Authority of Kenya, has, however, indicated on its official website that the term “digital signature’’ refers to an advanced electronic signature (we note that the explanation on the website cannot be a substitute for a statutory authority).

Furthermore, the need for authentication through certificate issuance is not a requirement under any other statutes amended by the BLAA or the Companies Act. As mentioned above in question 1, the Companies Act and the BLAA do not outline any specific requirements regarding signatures, except for the Companies Act, which specifies the witnessing of a sole director’s signature.

The Kenya Civil Aviation Authority (KCAA) does not maintain an electronic register of aircraft documents or aircraft lease documents. However, it has an e-service platform known as the Advanced Air Transport Information System (AATIS), which allows Kenyan operators or their agents to make certain applications to the KCAA, such as requests for lease approvals and permit applications.

Not applicable. Please refer to our response to 3 above.

Please refer to our responses to questions 1 and 2.

Yes, it is possible to upload lawsuits, pleadings, and procedural documents electronically in Kenya. The Kenyan legal system has embraced electronic filing (e-filing) systems rolled out by the judiciary to streamline court processes and improve efficiency. The Practice Directions on Electronic Case Management, 2020 (the Practice Directions) sets out the comprehensive framework for the functioning of the judiciary e-filing system.

The e-filing system allows litigants, lawyers, and other stakeholders to file and access court documents electronically.

Currently, judiciary e-filing systems are available for courts located in Nairobi and Mombasa.

Yes.

The Practice Directions allow for the filing of documents executed digitally. Direction 22 of the Practice Directions provides that a signature for electronically filed documents may take one of the following forms:

Where a party uses an electronic signature pursuant to the Practice Directions, the same must comply with the provisions of the KICA as the definition of an electronic signature under the Practice Directions refers to the meaning ascribed to it under the KICA.

The Practice Directions presume the validity and authenticity of signatures on electronically filed documents unless convincing evidence is presented to prove otherwise. This means that unless there is credible evidence indicating that a signature is not authentic or valid, it will be considered as such.

We are not aware of any distinction between official digital signatures and private digital signatures under the Kenyan legal framework.

Please refer to our responses to questions 1, 2 and 7 above.

Whilst there is no requirement in law for the parties to consent to the use of e-signatures, from our experience, we have seen documents drafted with an express consent for the use of e-signatures, especially in transactions where parties anticipate that execution will be done by way of e-signatures.

Whilst Kenyan law recognises the use of electronic signatures (subject to the issues highlighted in our responses to questions 1 and 2 above), from our experience, different government registries, including the KCAA and the Companies Registry, often insist on wet-ink signatures before registering a document. In addition, the Collector of Stamp Duty may also insist on being provided with wet-ink signatures of documents such as lease agreements and finance documents for the purposes of assessing and stamping. Therefore, while a foreign entity can execute lease agreements or finance documents with digital signatures under foreign law, there can sometimes be practical challenges with the registration of documents in Kenya for the reasons stated above.

The KCAA has several digital systems which allow for the provision of e-services such as the AATIS referred to above, the Mandatory Occurrence Reporting and Voluntary Occurrence Reporting.

While we appreciate that certain government agencies and departments have now embraced blockchain technology in their operations, we are not aware of any blockchain technology being employed by the KCAA.

a. Has Kenya implemented the e-Apostille program?

Kenya has not ratified the Apostille Convention (Hague Convention of 1961) and therefore does not have apostillation requirements.

Notary services in Kenya have not been digitized. The process of providing notary services still requires physical presence for the purpose of execution. This means that notaries public cannot affix their stamp or signatures electronically. The Notaries Public Act, CAP 17 and related regulations do not currently provide for the electronic affixation of notary seals or signatures.

Therefore, in order to fulfil notarial requirements, notaries public must physically affix their official notary seal and manually sign the documents in the presence of the concerned parties.