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ELCDismissedNot stated in the judgment· [2022] KEELC 886 (KLR)

Wainaina Kironyo & 8 others v Naphtali Ngugi Munyaka [2022] KEELC 886 (KLR)

Environment and Land Court
24 February 2022
2,577 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to admit video evidence because it lacked a proper certificate, showing electronic evidence must strictly follow the Evidence Act's rules.

What this practically means

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Executive summary

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The nine plaintiffs, registered proprietors of nine parcels of land in Kikuyu, Kiambu County, sued by plaint dated 2/7/2018 seeking a declaration that the defendant's actions were irregular and illegal, a permanent injunction against encroachment, trespass and destruction, compensation for losses, costs and interest. They alleged the defendant threatened to clear the area of their parcels bordering a public road on the pretext that they had encroached on the road reserve. The defendant denied the claims, asserting the suit was politically instigated to defame him. Before hearing commenced, the plaintiffs moved by notice of motion dated 21/1/2021 for leave to produce additional evidence described as documentation and electronic format, supported by an expert verification of a video by one Solomon Mutua Kaminda/Kiminda. The defendant opposed, contending the evidence was distorted, lacked a compliant certificate under Section 106B(4) of the Evidence Act, and would prejudice the defence. In a ruling delivered virtually at Thika on 24/2/2022, B M Eboso J acknowledged that with no hearing yet commenced the court would ordinarily permit additional evidence, but held the decisive question was compliance with Sections 78A and 106B of the Evidence Act. The untitled expert document failed every requirement of a Section 106B(4) certificate: it identified no electronic record, its source, any device used, or the circumstances of its keeping. Relying on the mandatory nature of certification, the court rejected the application for lack of merit. No costs order appears in the ruling.

Key legal issues

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01

Whether the plaintiffs' proposed electronic and documentary evidence satisfies Sections 78A and 106B of the Evidence Act

Holding

The untitled expert report did not constitute a compliant Section 106B(4) certificate; the statutory requirements were not satisfied and the application was rejected

Reasoning

The court set out Sections 78A and 106B of the Evidence Act and tested the exhibited expert report against them. The document was untitled, did not identify any particular electronic record or its source, gave no particulars of any device involved in production, and did not specify the circumstances in which the record was kept. As none of the Section 106B(4) certificate requirements were met, the evidence could not be admitted.

p. 5
02

Whether the absence of a compliant certificate could be excused given that hearing had not commenced

Holding

No; although ordinarily inclined to allow additional evidence before commencement of hearing, the court held the plaintiffs failed the statutory criteria

Reasoning

The court acknowledged that where hearing has not commenced, a party is ordinarily allowed to present additional evidence. However, the key question was whether the requirements of Section 78A as read with Section 106B of the Evidence Act were satisfied. Because the certificate requirement is mandatory and no compliant certificate existed, the discretion could not be exercised in the plaintiffs' favour.

p. 3

Legal principles established

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  • A compliant certificate under Section 106B of the Evidence Act is a mandatory requirement for the admission of electronic evidence

Court orders

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  1. 1.The notice of motion dated 21/1/2021 seeking leave to produce additional evidence in the form of documentation and electronic format is rejected for lack of merit

Authorities

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Legislation

  • Evidence ActSection 78A
  • Evidence ActSection 106B
  • Evidence ActSection 106B(4)

Cases cited (5)

  • Johana Kipkemei Too v Hellen Tum
    (2014) eKLR
  • Joseph Mumero Wanyama v Jared Wanjala Lyani & Another
    (2019) eKLR
  • Raila Odinga & 5 others v IEBC & 3 Others
    (2013) eKLR
  • Idris Abdi Abdullahi v Ahmed Bashane & 2 others
    [2018] eKLR
  • William Odhiambo Oduol v IEBC & 2 others
    Kisumu High Court Election Petition No. 2 of 2012
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit; the ruling determines a notice of motion for leave to produce additional evidence

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, "Wainaina Kironyo & 8 others v Naphtali Ngugi Munyaka [2022] KEELC 886 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/886/eng@2022-02-24

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