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 recognised 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 included the recognition of electronic signatures, 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. 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.
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.
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 Notarisation and Attestation 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 prioritise 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.
Amrit Soar is a consultant in the Real Estate and Finance Practice Group at DLA Piper Africa, Kenya (IKM Advocates). Japheth Mutisya is a trainee lawyer at DLA Piper Africa.
