Nyaga & 19 others (Suing on behalf of the 150 members of Kismayu Farmers Company) v Martin Ngunyi – Deputy County Commissioner Langa’ata, Sub-County & 5 others (Environment & Land Petition 17 of 2022) [2024] KEELC 4714 (KLR)
The bottom line
#A Kenyan court threw out an application because a party backdated an electronic evidence certificate, proving honesty and timing matter as much as legal form.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of form of an electronic certificate under Section 106B(4) of the Evidence Act
The impugned electronic certificate substantially complies with Section 106B(4); the statute prescribes no format, only requisite ingredients (identity of device, its functionality, control of the person producing it, manner of production).
The court held that although the certificate must accompany electronic evidence, the Act provides no template. The certificate need only identify the device, confirm it was functional and under the control of the person who generated the electronic document, and describe how the images were produced and printed. Adopting the Court of Appeal's holding in County Assembly of Kisumu, the certificate may take any form including affidavit averments. The impugned certificate identified the device type, its functionality and control by the 1st Applicant.
Whether sufficient cause and clean hands were established for the exercise of discretion to admit the certificate late
No. The Applicants failed to demonstrate sufficient cause and, having backdated the certificate, approached the court with unclean hands and mala fides, disentitling them from equitable discretion.
The certificate bore the names of the 5th and 6th Respondents, yet those parties were not joined until after 2021 - a date confirmed by the 1st Applicant's own replying affidavit of 29th March 2022 and the court order of 28th April 2022 on joinder. The court inferred the certificate was generated after the objection to the photographs and backdated. Citing Wachira Karani, Attorney General v Law Society of Kenya and Madara Evans Okanga Dondo, the court held that discretion to allow ex-post facto filing exists but requires sufficient cause, candour and clean hands, all absent here.
Legal principles established
#- Section 106B(4) of the Evidence Act does not prescribe a template or format for the electronic certificate; any form, including averments in an affidavit, suffices provided the statutory ingredients are captured.
- An applicant seeking ex-post facto leave to file a document must give a rational, plausible, logical, convincing, reasonable and truthful explanation for the delay, free of unexplained gaps.
- A party who manipulates or backdates a document and misleads the court forfeits equitable discretion; he who comes to equity must come with clean hands.
Court orders
#- 1.The application dated the 16th of May 2024 be and is hereby dismissed with costs to the Respondents
- Jurisdiction invoked
- Inherent and discretionary powers under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Cap 21; Section 106B(4) of the Evidence Act; Orders 18 Rule 10 and 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaga & 19 others (Suing on behalf of the 150 members of Kismayu Farmers Company) v Martin Ngunyi – Deputy County Commissioner Langa’ata, Sub-County & 5 others (Environment & Land Petition 17 of 2022) [2024] KEELC 4714 (KLR)", Case Analysis (2024). Not stated in the excerpt (Petition with Notice of Motion application dated 16th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4714/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.