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Amend the law to allow virtual attestation of crucial documents

By Amrit Soar

The COVID-19 pandemic ushered in a new era in Kenya which forced different industries across the country to adapt and acclimate to the new normal. The legal sector rose to the challenge by embracing digital transformation to streamline and ease business processes.

Notably, as social distancing and lockdown protocols were put in place by the government, the legislature swiftly recognized the need for change and enacted a series of legislative amendments to facilitate the transition to digital business operations.

Some of the noteworthy amendments put in place pursuant to the Business Laws (Amendment) Act of 2020 included the recognition of electronic signatures under section 3(6) of the Law of Contract Act and the deletion of section 83B (c) of the Kenya Information and Communication Act, which in effect meant legal instruments relating to land transactions could now be executed electronically.

While these amendments simplified the execution of legal instruments virtually through effecting electronic signatures, this did not do away with the requirement for attestation. By virtue of section 44(3) of the Land Registration Act and section 3(b) of the Law of Contract Act, documents relating to land matters must still be executed in the presence of either an advocate of the High Court of Kenya, a magistrate, a Judge or a notary public even when signed electronically.

Similarly, every person signing a contract meant to dispose of an interest in land must still do so in the presence of an attesting witness for such a contract to be relied on in a lawsuit.

The question of what “in the presence of” a witness means has been the subject of consideration in different cases, most recently in the case of ED Foods S.R.L. vs Africa’s Best (Pty) Ltd at the Gauteng Division of the High Court of South Africa. In this case, the court considered whether affidavits that were commissioned using Zoom were validly commissioned. The commissioner had first asked the deponents to identify themselves by holding up their identification documents to the camera. The affidavits were then sent to the deponents via email, printed out and signed by them and then sent back to the commissioner. The decision of the Court was that while the phrase “in the presence of” suggests that the deponents were expected to be in the company of and observed by the commissioner, “courts must open themselves to the modern trend of technology” when it comes to ascertaining the validity of such attestation. The Court was of the view that the failure to comply strictly with statutory provisions does not necessarily render the action invalid provided there is substantial compliance with the relevant statutory provisions and legislative framework. In this case the Court was satisfied that there had been substantial compliance with the regulations when the affidavit was virtually commissioned. It would be interesting to see how Kenyan courts interpret this decision.

Kenya has not yet implemented mechanisms for virtual attestation or notarization of documents, despite the shift towards virtual or electronic execution. However, other jurisdictions like the United States are considering remote online notarization frameworks using audio/visual technology, as has been proposed by the SECURE Notarization Act of 2023, particularly for remotely located individuals.

To reduce uncertainty and ensure integrity, Kenya should consider implementing similar provisions for virtual attestation. In doing so, Kenya should incorporate stringent identity verification measures and tamper-evident technologies like certified electronic signatures and blockchain-based document management systems to ensure an immutable record of the attestation process.

Collaboration with licensed Remote Online Notarization and Attestation (RONA) service providers will also be essential. The Communication Authority can license and regulate such service providers, in line with the US licensed providers like DocuSign and BlueNotary.

As Kenya continues to prioritize technological advancements, the adoption of virtual attestation and commissioning of legal instruments would serve as a testament to the country's commitment to innovation and its determination to create an enabling environment for businesses and individuals alike. In doing so, Kenya will position itself as a leader in the digital transformation of the legal sector, setting an example for other nations to follow.

The article was featured in the Business Daily on 13 June 2024 and can be accessed here.