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ELCPartially AllowedELC. CASE NO. 104 OF 2019· [2019] KEELC 1097 (KLR)

London Distillers (K) Limited v Mavoko Water & Sewerage Company & 2 others [2019] KEELC 1097 (KLR)

Environment and Land Court
18 October 2019
OAO.A. Angote
1,528 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan court ruled screenshots are inadmissible evidence unless accompanied by a special certificate under Section 106B of the Evidence Act.

What this practically means

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Executive summary

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This ruling, delivered in Machakos on 18th October 2019 by O.A. Angote J, resolves a Notice of Preliminary Objection dated 13th October 2019 raised by the plaintiff, London Distillers (K) Limited, against the 1st Defendant's application of 4th October 2019 seeking to set aside consent orders recorded on 1st October 2019. The objection targeted paragraphs 6 and 17 of the Supporting Affidavit of the 1st Defendant's Managing Director, Michael Mang'eli, and the annexures MM1 and MM2, which were screenshots of alleged telephone communications between the Managing Director and his former advocate. Counsel for the plaintiff argued that the screenshots were electronic documents governed by Sections 78A and 106B of the Evidence Act and, absent the certificate required by Section 106B(4), were inadmissible, relying on the Oduol and Barisa Wayu Mataguda cases. The 1st and 3rd Defendants contended that Section 106B applies only at trial and that the deponent could be cross-examined. The court held that a screenshot is an image of what is displayed on a computer or mobile phone screen, and that a mobile phone is a computer under Section 2 of the Evidence Act; therefore the printed screenshots are computer output under Section 106B, which requires a certificate whether the evidence is viva voce or by affidavit. In the absence of the requisite certificate, the court allowed the objection in part: annextures MM1 and MM2 were expunged from the record, while paragraphs 6 and 7 of the affidavit remained, being depositions of what the deponent says he did. The 1st Defendant was ordered to pay the costs of the objection.

Key legal issues

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01

Admissibility of screenshots as electronic evidence under Section 106B of the Evidence Act

Holding

Screenshots printed on paper are electronic records (computer output) whose contents may only be proved under Section 106B; without the certificate contemplated under Section 106B(4)(d) the printouts are inadmissible and must be struck from the record

Reasoning

A screenshot is an image of what is displayed on a screen of a computer or mobile phone; a mobile phone is a computer under Section 2 of the Evidence Act. Section 106B(4) requires a certificate identifying the electronic record and describing its manner of production, signed by a person in a responsible position. The 1st Defendant did not deny the annextures were information in an electronic record printed on paper, and no certificate was produced; the provisions apply in all proceedings, whether evidence is viva voce or by affidavit.

p. 3
02

Whether the affidavit paragraphs themselves should be expunged

Holding

The deponent's own narrative paragraphs remain on record; only the annexed electronic printouts are expunged

Reasoning

The court distinguished the annexed screenshots, which offend Section 106B, from the deponent's personal account of what he did. Depositions of what the Managing Director says he did are admissible as affidavit evidence; only the documentary annexures requiring certification were struck out, preserving the deponent's testimony while excluding the uncertified electronic output.

p. 3

Legal principles established

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  • A mobile phone is a computer for purposes of the Evidence Act
  • Electronic evidence requires a certificate under Section 106B(4) whether adduced by viva voce or affidavit evidence

Court orders

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  1. 1.Annexture MM1 and MM2 on the Affidavit of Michael Mang'eli sworn on 4th October, 2019 expunged from the record
  2. 2.1st Defendant to pay the costs of the Notice of Preliminary Objection

Authorities

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Legislation

  • Evidence ActSection 78A
  • Evidence ActSection 106A
  • Evidence ActSection 106B (1), (2) and (4)
  • Evidence ActSection 2 (definition of 'computer')

Cases cited (2)

  • William Odhiambo Oduol vs. Independent Electoral & Boundaries Commission & Others
    (2003) eKLR
  • Republic vs. Barisa Wayu Mataguda
    (2011) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (interlocutory application within ELC Case No. 104 of 2019)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "London Distillers (K) Limited v Mavoko Water & Sewerage Company & 2 others [2019] KEELC 1097 (KLR)", Case Analysis (2019). ELC. CASE NO. 104 OF 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1097/eng@2019-10-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.