Virdi & another

3. The Application is opposed by the Plainti who led Grounds of Opposition dated 21/08/2024. The Plainti has stated that the Application is preemptive as it seeks orders on evidentiary matters that can only be raised by a party and will be ruled on by the Court, at the hearing stage of proceedings. 4. The Plainti in opposing the Application states that the impugned documents have fully complied with the provisions of Section 78A, 106A and 106 B of the Evidence Act and the alleged violations of the law are misrepresentation of the records. 5. Further that the provisions of the Data Protection Act, Cap 411C are not relevant in the proceedings before this Court and that the reliefs sought are not orders that this Court can grant at pretrial stage. 6. The Respondents moves the Court to dismiss the Application. 7. The Court gave directions to determine the Motion by written submissions. The Defendants/ Applicants led their submissions dated 4/09/2024. I have perused the records and I have not come across any submissions led by the Plainti. I have considered the pleadings, depositions and submissions. 8. This matter is pending hearing. There is thus a general caveat on making ndings that would embarrass the trial Court. The veracity of the Defendants’ claim and the rebuttal by the Plainti will be tested by evidence. That will be the true province of the trial Court. As a corollary, the relevance and admissibility of documents, recordings, materials and broadcasts will depend on the rules of evidence and the pleadings by the parties. The issue for determination now is whether the Plainti should be allowed to produce his supplementary list which also contains the audio documents which he will rely on at trial. 9. The true purpose of discovery is to level the litigation eld, to expedite hearing, reduce costs and allow parties to gauge the case they will face at the trial. This is aptly captured in Halsbury’s Laws of England Vol 13 paragraph 1: “ The function of the discovery of documents is to provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their relevant cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial. Each party is thereby enabled to see before the trial or to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against him, to eliminate surprise at or before the trial relating to the documentary evidence and to reduce the cost of litigation.” 10. That position was aptly captured by Havelock J in Concord Insurance Co Limited Vs Nic Bank Limited Nairobi, High Court Case 175 of 2011 [2013] eKLR. Pre-trial discovery is so central to litigation that the entire Order 11 of the Civil Procedure Rules 2010 has been substantially devoted to it, including sanctions for non-compliance. 11. Section 106B of the Evidence Act provides for the admissibility of electronic records. Section 106 B (4) provides for; “ In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certicate doing any of the following— a. identifying the electronic record containing the statement and describing the manner in which it was produced; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18669/eng@2025-02-27 2

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12. b. giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; c. dealing with any matters to which conditions mentioned in subsection (2) relate; and d. purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certicate and for the purpose of this subsection it shall be sucient for a matter to be stated to be the best of the knowledge of the person stating it.” This must be read together with Section 106 B (1) of the Evidence Act which states:“ Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as “computer output”) shall be deemed to be also a document, if the conditions mentioned in this section are satised in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.” 13. Any party seeking to rely on electronic records evidence must of necessity expect to be asked whether they have complied with the law regarding that evidence. In that do the documents intended to be relied upon fall within the ambit of electronic records? 14. The electronic evidence in question is an audio recording between the 2nd Plainti and the 1st Defendant. Section 78A (1) of the Evidence Act (Cap 80) provides for admissibility of electronic and digital evidence while Section 78A (2) provides that a Court shall not deny admissibility of evidence under Subsection (1) only on the ground that it is not in its original form. 15. These provisions must be read together with Section 106A which provides that the contents of electronic records may be proved in accordance with the provisions of Section 106B. 16. On its part Section 106B (1) provides as follows; “ 106B (1) Notwithstanding, anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as a computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satised in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.” 17. The conditions mentioned in Sub section (1) are provided in Sub-section (2) in the following terms:a. the computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18669/eng@2025-02-27 3

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regularly carried out over that period by a person having lawful control over the use of the computer; b. during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; c. throughout the material part of the said period the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to aect the electronic record or the accuracy of its content; and d. the information contained in the electronic record reproduces or is denied from such information fed into the computer in the ordinary course of the said activities. 18. The Plainti in this case, intends to rely on the audio recording made by the Plainti. The Defendants claim that the recording was done in secret and without the approval and or consent of the 1st Defendant and they therefore want it struck out and not to be admitted at trial. 19. My honest opinion here is that it is the trial Court (see RC v KKR (2021) eKLR) that will determine the issue of admissibility of the audio recording since at this early stage the Court is concerned with parties being in compliance with Order 11. At this stage the authenticity and veracity of the evidence is not being tested and I believe that barring a party to produce together with their pleadings the documents they will rely upon at trial to support their cases will jeopardize fair trial. 20. The Court in the case of Philomena Mbete Mwilu v Director of Public Prosecutions & 3 Others; Stanley Muluvi Kiima (Interested Party) International Commission of Jurists Kenya Chapter (Amicus Curiae) (2019) eKLR, addressed itself to the claim of illegally obtained evidence where the Court was of the opinion that when a party claims evidence and summed it all up to focus the issue a fair trial. In that what should concern the Court is whether the evidence will be detrimental to the overall good of administration of justice. Thus exposing the parties to an unfair trial. 21. In their submissions the Plainti has contended that the Data Protection Act 2019 is not relevant in this case and I agree with this observation and leave it at that. 22. In the case of Republic vs Barisa Wayu Matuguda [2011] eKLR the Court observed that any information stored in a computer which is then printed or copied shall be treated just like documentary evidence and will be admissible as evidence without the production of the original. The Court however cautioned that such electronic evidence will only be admissible if the conditions laid out under Section 106B are satised. 23. Considering the law applicable and the threshold set in the case of Barisa Wayu Matuguda [2011] eKLR, I nd that the Audio recording has met the legal requirements in terms of Section 106B (2) read together with Section 106B (1). 24. That is not all. There are clearly stipulated conditions to be met as stated above under Section 106B (4) and this provision was reiterated by the Court in the case of Republic v Barisa Wayu Matuguda (supra), with the Court observing that in order to be admissible, the electronic evidence must be accompanied by a certicate in terms of Section 106B(4) and which must be signed by a person holding a responsible position with respect to the management of the device and that in the absence of such a certicate, such electronic evidence is inadmissible as evidence. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18669/eng@2025-02-27 4

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25. As stated by the Plainti they have led a Certicate of Authenticity wherein he conrms the authenticity of the recording. The Certicate has identied the electronic record contained in the statement, described the manner in which it was produced and given particulars of the device involved in the production of the electronic audio record. 26. In the foregoing circumstances, I nd that the audio which the Plainti seeks to adduce, has also met the legal threshold set out under Section 106B (4) hence is admissible as evidence in these proceedings. 27. In conclusion, I nd that the Application dated 31/07/2024 is unmeritorious and I dismiss it with costs to the Respondent. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 27TH DAY OF FEBRUARY 2025 VIA MICROSOFT TEAMS. ................................ MOGENI J JUDGE In the presence of: Hon. Oketch for the Applicant No appearance for the Respondent Mr. Melita - Court Assistant ............................ MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18669/eng@2025-02-27 5

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