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High CourtAllowedNot stated in the ruling

AHARUB EBRAHIM KATRI v NELSON MARWA

High Court of Kenya
12 February 2019
DCD. Chepkwony
1,202 words in judgment
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The bottom line

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In Kenya, properly certified electronic evidence, like videos and social media posts, can be admitted even if you did not create it.

What this practically means

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Executive summary

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This is an interlocutory ruling by D. Chepkwony J on the admissibility of electronic evidence in an ongoing trial. In the course of the plaintiff's evidence, counsel sought to produce as exhibits a press statement of 14th January 2017, extracts from the Star newspaper and the Baraka FM webpage (MFI P4), and a video clip from various media houses (MFI P5). Defence counsel objected on three grounds: the plaintiff was not the maker of the material, the source had not been disclosed, and no certificate from the person who produced the material was attached. Plaintiff's counsel responded that the material came from widely circulated media and that a certificate under Section 106B(4) of the Evidence Act had been filed on 12th September 2018, disclosing the source and uploader. The court restated Section 106B in full and noted that a certificate sworn by Walter Budamba Kihuya on 11th September 2018 confirmed that the video evidence was downloaded from his ACER desktop and the YouTube channel 'The Star Kenya' on 14th January 2017. The court held that the material was duly filed in accordance with Section 106B, particularly subsection (4), and that the defence had had sufficient time to prepare. Invoking Article 159(2)(d) of the Constitution and Sections 1A, 1B and 3 of the Civil Procedure Act, the court held that the modern evidential regime favours substantive justice and disfavours exclusion of evidence on technicalities, with weight to be tested in cross-examination. The objection was declined and the exhibits were admitted as Exhibits P4 and P5. No costs order was made.

Key legal issues

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

Holding

The extracts, transcripts and video clips were admissible because a certificate under Section 106B(4) sworn by Walter Budamba Kihuya identified the electronic record, the device and the source, and the defence had time to prepare for the evidence

Reasoning

The court restated Section 106B in full and found the statutory conditions satisfied: the certificate identified the record, described the manner of production, gave particulars of the device (an ACER desktop) and the YouTube channel, and was signed by a person in a responsible position. The court also invoked the overriding objective under Article 159(2)(d) and Sections 1A, 1B and 3 of the Civil Procedure Act to reject technical objections, holding that weight should be tested at cross-examination.

p. 2

Legal principles established

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  • Electronic records are admissible under Section 106B of the Evidence Act where the conditions of the section, including a certificate under subsection (4), are satisfied
  • Modern evidential policy favours substantive justice over exclusion of evidence on technical grounds; weight is a matter for cross-examination

Court orders

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  1. 1.Objection by the defence to the production of MFI P4 and P5 declined
  2. 2.Plaintiff allowed to produce the press statement of 14th January 2017, the extracts from the Star and Baraka FM website and the video clips as Exhibits P4 and P5 respectively

Authorities

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Legislation

  • Evidence ActSection 106B (including subsections (1)-(5))
  • Civil Procedure ActSections 1A, 1B and 3
  • Constitution of KenyaArticle 159(2)(d)
Jurisdiction invoked
Article 159(2)(d) of the Constitution and Sections 1A, 1B and 3 of the Civil Procedure Act; Section 106B of the Evidence Act

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, "AHARUB EBRAHIM KATRI v NELSON MARWA", Case Analysis (2019). Not stated in the ruling. Source:

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