Muthomi Mungania & 3 others v Meru County Government & 3 others

1. Through the notice of motion dated 31/1/2026, the plaintiffs/applicants seek leave of the court to file and serve a supplementary list of documents. They also pray that the defendants be granted corresponding leave to file and serve supplementary lists of documents should they deem it necessary. The application is opposed by the 2nd and 3rd defendants. The single issue to be determined in this ruling is whether a proper case has been made to warrant the granting of leave to the plaintiffs to file and serve a supplementary list of documents at this stage of the proceedings. 2. The application is premised on the grounds outlined in the motion and in the affidavit of Muthomi Mungania, dated 31/1/2026. It was canvassed orally on 8/6/2026 by their Advocate, Mr Nyamu Nyaga. The case of the applicants is that the evidence which they seek to file comprises of electronic records in form of WhatsApp Messages which had been filed and served. She adds that the only new document is the electronic certificate relating to the said electronic evidence (WhatsApp messages) which was missing in the earlier bundle. 3. The applicants state that during pre-trial, and even at the commencement of trial, the defendants did not object to the production of the Group WhatsApp Messages, adding that it was at the stage of trial hearing that the defendants raised an objection. occasioned They argue that no prejudice will be to the defendants through the filing of the additional list of documents because the defendants have ELC CASE NO E008 OF 2020 - RULING 2

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all along had copies of the Group WhatsApp Messages. They plead with the court to grant them leave. 4. The 2nd defendant opposed the application through grounds of opposition dated 5/2/2026. In addition, the 2nd defendant tendered oral submissions through Mr Ken Muriuki. The 3rd defendant tendered submissions through Mr Gikunda Anampiu, opposing the application. The case of the two defendants is that pleadings having closed and hearing having commenced, the plea to introduce a new list of documents is a scheme to cover loopholes and fill lacuna exposed during the hearing. They argue that the application was occasioned by the fact that the applicants purported to tender electronic evidence without the electronic certificate. They point out that the certificate which the plaintiffs seek to introduce is dated 31/1/2026. They argue that under Order 11 of the Civil Procedure Rules, parties must file and serve trial documents before closure of pre-trial. They add that under Section 106B of the Evidence Act, the electronic evidence and the certificate must be filed together. They point out that irregular electronic evidence cannot be cured by filing a certificate after an objection has been raised, adding that the certificate was procured after the objection was raised. They urge the court to reject the application. 5. The court has considered the application, the response to the application, and the parties’ respective submissions. The court has also considered the relevant legal frameworks and jurisprudence. As pointed out in the opening paragraph of this ruling, the single issue to be determined in the ruling ELC CASE NO E008 OF 2020 - RULING 3

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is whether a proper case has been made to warrant the granting of leave to the plaintiffs to file and serve a supplementary list of trial documents at this stage of the proceedings. 6. The plea for leave to introduce a supplementary trial bundle was made after commencement of trial. The proceedings were at the stage of the trial hearing relating to the plaintiff’s case. To be precise, the application was made when PW3 [Muthomi Mungania] was testifying. It was prompted by the defendants’ objection to the production of Group WhatsApp Messages that were contained in the plaintiffs’ trial bundle. The trial bundle had been served and no objection had been raised to the production of the WhatsApp Messages when pre-trial was conducted. 7. This court considered the objection and rendered a ruling on 19/1/2026 in which it held that the WhatsApp Messages were admissible subject to compliance with the requirements of Section 106B of the Evidence Act. It emerges that subsequent to that, the plaintiffs complied with the requirements of Section 106B of the Evidence Act and now want the electronic records and the requisite certificate tendered as evidence. 8. Section 106B was introduced into the Evidence Act in 2009 to provide a legal framework for production and admission of electronic records as evidence in our courts. Prior to that, electronic records were being rejected under the best evidence and hearsay rules. The Court of Appeal examined the objective behind the legislation of the ELC CASE NO E008 OF 2020 - RULING 4

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framework in John Lokitare Lodinyo v Independent Electoral and Boundaries commission & 2 others [2018] KECA 439 (KLR), as follows:“We agree with the observations of the election court that various factors come into play when proceeding to admit such evidence as electronic evidence due to the vulnerability and easy manipulation of electronic evidence and the ease with which such evidence can be modified during the collection of the evidence. The evidence may also be easily tampered with making it more difficult to detect any signs of manipulation of documents.” 9. In County Assembly of Kisumu v Kisumu County Assembly Service Board, the Court of Appeal outlined the rationale behind Section 106B of the Evidence Act as follows: “In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B(2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced.” 10. What emerges from the application under consideration is that the plaintiffs are contending that the electronic records (WhatsApp Messages) which they wish to rely on existed in ELC CASE NO E008 OF 2020 - RULING 5

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electronic form at the stage of and still exist in electronic form at this point. They have caused the said records to be converted into physical documents and they have procured a certificate in compliance with the requirements of Section 106B of the Evidence Act. 11. The defendants are opposed to the introduction of the supplementary list of evidence principally on the ground of timing. They have, however, not tendered evidence of any prejudice which they are likely to suffer if the plaintiffs are allowed to introduce the electronic evidence, which in any event, was served upon them prior to commencement of trial. 12. Secondly, the plaintiffs have explained that part of the reason they delayed to procure the certificate is that, during pre-trial there was no objection to the production of the electronic records and the authenticity of the electronic records was never contested by the defendants. 13. Taking all the above into account, the court takes the view that at this stage where the plaintiffs have not closed their case, they can properly be allowed to introduce the additional list of documents without exposing the defendants to any prejudice. A key safeguard is to grant the defendants corresponding leave. Consequently, it is the finding of the court that a proper case has been made to warrant granting of leave to supplementary list of the plaintiffs to introduce a trial documents at this stage. The defendants will have corresponding leave. ELC CASE NO E008 OF 2020 - RULING 6

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14. In the end, for the above reasons, the application dated 31/1/2026 is allowed in terms of prayers 1 and 2. Costs of the application shall be in the cause. DATED, SIGNED AND DELIVERED AT MERU THIS 24TH DAY OF SEPTEMBER, 2026. B M EBOSO [MR] ELC JUDGE ELC CASE NO E008 OF 2020 - RULING 7

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