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ELCOther· [2022] KEELC 3159 (KLR)

Kayugira & another v Musyoka & another (In their Capacities as Administrators to the Estate of Henry Musyoki Kilonzi – Deceased) (Environment & Land Case E001 of 2020) [2022] KEELC 3159 (KLR)

High Court of Kenya
13 June 2022
COChristine Ochieng
1,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court chose fairness over technicality, letting parties fix missing email certificates within 14 days instead of throwing out the evidence.

What this practically means

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Executive summary

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This ruling by Christine Ochieng, Judge, delivered virtually at Machakos on 13 June 2022, determines a preliminary evidentiary objection raised by the respondents' counsel on 12 May 2022. The respondents objected to the production as exhibits of emails annexed to the applicants' supporting affidavit, marked 'SNM 9 - SNM 15', on the ground that no certificate had been produced to authenticate the documents as downloaded by their maker, contrary to section 106B of the Evidence Act, which they submitted was couched in mandatory terms rendering the emails inadmissible. The applicants opposed the objection, arguing that no issue had been raised during pre-trial directions of 29 November 2021, that the replying affidavit did not controvert production of the emails, that no notice to produce had been served under section 69 of the Evidence Act, and that the emails were communications between the parties themselves concerning the disputed transaction. The court framed a single issue: whether the emails generated from a computer could be produced without a certificate. Setting out section 106B in full, the court held that the interests of justice required that the applicants be accorded an opportunity to present their case. It declined to uphold the objection and granted the applicants fourteen days' leave to file a supplementary affidavit annexing a certificate in support of the email correspondence, directing that the hearing proceed once the certificate was filed and served. No costs order was made.

Key legal issues

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01

Admissibility of emails produced without a certificate under section 106B of the Evidence Act

Holding

The objection was declined; the applicants were granted 14 days' leave to file a supplementary affidavit annexing a certificate, and the hearing was directed to proceed thereafter

Reasoning

The court noted the emails were communications between the applicants and respondents concerning the transaction forming the fulcrum of the dispute. Emphasising that justice must be seen to be done and each party accorded a chance to present their case, the court opted for regularisation rather than exclusion, balancing the mandatory certification requirement with the parties' right to be heard.

p. 3

Legal principles established

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  • Where electronic communications such as emails are sought to be produced without a certificate under section 106B of the Evidence Act, the court may in the interests of justice grant leave to the party to file a supplementary affidavit annexing the certificate rather than striking out the documents

Court orders

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  1. 1.Leave granted to the applicants for fourteen (14) days to file a supplementary affidavit and annex a certificate in support of the email correspondence sought to be produced
  2. 2.The respondents' objection to the production of the emails declined
  3. 3.The hearing to proceed once the certificate is filed and served as directed

Authorities

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Legislation

  • Evidence Actsection 106B
  • Evidence Actsection 69
Jurisdiction invoked
Not stated in the ruling; interlocutory evidentiary application before the High Court

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, "Kayugira & another v Musyoka & another (In their Capacities as Administrators to the Estate of Henry Musyoki Kilonzi – Deceased) (Environment & Land Case E001 of 2020) [2022] KEELC 3159 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3159/eng@2022-06-13

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