Musyimi & 2 others v Criminal Investigations Director of & 3 others

1. The CD Video recording annexed and marked as PMM2 to the petitioner’s affidavit be expunged from the Court record. 2. The Photographs annexed and marked as PMM1 to the petitioner’s affidavit be expunged from the Court record. 3. Costs of the application be provided for. 3. The application is predicated upon the grounds that the petitioner has produced a CD video recording and photographs that are inadmissible. This is because they have not been accompanied by a certificate of authenticity as required under section 106 B and it is the interest of justice that the application be allowed. SUMMARY OF THE 3RD RESPONDENT’S SUBMISSIONS 4. The 3rd respondent cites section 106B of the Evidence Act which sets out the threshold for admissibility of electronic or digital evidence. Further reliance is placed on the decisions in MNN v ENK [2017] KEHC 2175 (KLR); Republic v Barisa Wayu Matuguda [2011] eKLR; John Lokitare Lodinyo v Independent Electoral and Boundaries Commission & 2 HCCHRPET/E 481 /2021 Page 2 OF 17

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others [2018] eKLR and County Assembly of Kisumu & 2 others v Kisumu Cunty Assembly Service Board & 6 others [2015] eKLR 5. It is asserted that section 106 B (4) of the Evidence Act is couched in mandatory terms and requires that electronic evidence be accompanied by a certificate of authenticity identifying the electronic device used to produce the record, describing the manner of its production, naming the person responsible for the operation of the device and confirming that the device was function properly at the material time. Reliance is placed on the decision in Republic v Mark Lloyd Stevenson [2016] KEHC 4022 (KLR). 6. In this regard, it is reiterated that the petitioner has annexed photographs and a CD video recording without providing any certificate of authenticity as required by law. The petitioner has further failed to disclose critical foundational information relating to the impugned electronic evidence, including the device used for capture the photographs and record the video, the person who took of processed the images, the place, date and time when the recordings were made, and the process HCCHRPET/E 481 /2021 Page 3 OF 17

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through which the images and video were stored, processed, or transferred to the CD produced in court. 7. It is urged that in the absence of such particulars, the court is left with unauthenticated, unverifiable and legally infirm material, the integrity of which cannot be tested or relied upon. In addition, that the requirement for a certificate under section 106 B (4) is not a procedural technicality that can be cured by invoking article 159 of the Constitution; it is a substantive statutory safeguard intended to protect the fairness of judicial proceedings. Reliance is placed in the decisions in Muchemi v Kuria & another [2023] KEHC 3853 (KLR); Ogembo v Yongo [2024] KEHC 15763 (KLR) and Richard Nygaka Tong’i v Independent Electoral & Boundaries Commission & 2 others [2013] eKLR to augment this position. 8. It is submitted that under Article 50 of the Constitution, the right to a fair trial includes the right to challenge evidence presented against a party. Therefore, admission of unauthenticated electronic evidence undermines fairness, is prejudicial and would expose the proceedings to unreliable HCCHRPET/E 481 /2021 Page 4 OF 17

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and potentially manipulated material, thereby eroding the safeguards established by statute. 9. The 3rd respondent further submits that the expungement of the impugned electronic evidence does not determine the merits of the Petition. It merely ensures that the Court’s eventual determination is based on lawfully admitted evidence, in accordance with the Evidence Act and established principles of fairness. It is urged that the application be allowed. ANALYSIS AND DETERMINATION 10. Having considered the pleadings and submissions filed herein, the sole issue for determination is whether the photographs marked as PMM1 and the CD video recording marked as PMM2 should be expunged from the record. 11. The relevant statutory provisions are, Section 78A of the Evidence Act Cap 80 Laws of Kenya provides for admissibility of electronic and digital evidence as follows78A. Admissibility of evidence HCCHRPET/E 481 /2021 Page 5 OF 17 electronic and digital

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(1) In any messages legal and proceedings, digital material electronic shall be admissible as evidence. (2) The court shall not deny admissibility of evidence under subsection (1) only on the ground that it is not in its original form. (3) In estimating the weight, if any, to be attached to electronic and digital evidence, under subsection (1), regard shall be had to — (a) the reliability of the manner in which the electronic and digital evidence was generated, stored or communicated; (b) the reliability of the manner in which the integrity of the electronic and digital evidence was maintained; (c) the manner in which the originator of the electronic and digital evidence was identified; and (d) any other relevant factor. (4) Electronic and digital evidence generated by a person in the ordinary course of business, HCCHRPET/E 481 /2021 Page 6 OF 17

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or a copy or printout of or an extract from the electronic and digital evidence certified to be correct by a person in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract 12. Further Section 106 B of the Evidence Act provides; 106B. Admissibility of electronic records (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 HCCHRPET/E 481 /2021 Page 7 OF 17

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to as “computer output”) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied 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. (2) The conditions mentioned in subsection (1), in respect of a computer output, are the following— (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 regularly carried out over that HCCHRPET/E 481 /2021 Page 8 OF 17

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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 affect the electronic record or the accuracy of its content; and (d) the information contained in the electronic record reproduces or is derived HCCHRPET/E 481 /2021 Page 9 OF 17

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from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in paragraph (a) of subsection (2) was regularly performed by computers, whether— (a) by combination of computers operating in succession over that period; or (b) by different computers operating in succession over that period; or (c) in any manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, then all computers used for that purpose during that period shall be treated for the purposes of this section to constitute a single computer HCCHRPET/E 481 /2021 Page 10 OF 17

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and references in this sections to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following— (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (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 HCCHRPET/E 481 /2021 Page 11 OF 17

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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 certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it. (5) For the purpose of this section, information is supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of an appropriate equipment, whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purpose of those activities, that information, if duly supplied to that computer, shall be taken to HCCHRPET/E 481 /2021 Page 12 OF 17

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be supplied to it in the course of those activities. 13. There is a plethora expounded on the of judicial implications of decisions the aboe that have statutory provisions. For instance, the Court of Appeal in John Lokitare Lodinyo –vs- I.E.B.C and 2 Others [2018] eKLR addressing the question of admissibility of electronic records under S 106B stated; “54: Essentially, the sections provide that electronic evidence which is printed out shall be treated like documentary evidence and will be admissible without production of the computer used to generate the information. The appellant claimed that his technical team downloaded the forms and had them printed. He admitted that the forms were from the IEBC public portal. Ordinarily, this would have meant accessing the IEBC portal, which one could only do if they had access to the internet, proceeding to log onto the HCCHRPET/E 481 /2021 Page 13 OF 17

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IEBC portal page, clicking on the Forms 35A uploaded on Kacheliba Constituency, downloading the Forms 35A onto the computer’s hard disk and finally printing the documents via a printer connected to the computer. “55. It is at this juncture that the provisions of Section 106B of the Evidence Act come into play as the section sets out the conditions to be fulfilled to have this evidence admissible since evidence shall only be admissible if a certificate is presented identifying the electronic record and a description of the manner in which the electronic evidence was produced, together with any particulars of any device involved in the production of that document, which the appellant did not do. This Court in the case of County Assembly of Kisumu HCCHRPET/E 481 /2021 & 2 Others Page 14 OF 17 v Kisumu County

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Assembly Service Board & 6 Others [2015] eKLR stated that; “Section 106B of the Evidence Act states that electronic evidence of a computer recording or output is admissible in evidence as an original document “if the conditions mentioned in this section are satisfied in relation to the information and computer.” 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…” 14. Yet again, in the case of Richard Nyagaka Tong’i v Independent Electoral & Boundaries Commission & 2 HCCHRPET/E 481 /2021 Page 15 OF 17

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others ELECTION PETITION NO. 5 OF 2013 [2013] eKLR the court found; “27. In the present case the petitioner has not produced a certificate under section 106B (4) of the Evidence Act and the person who operated the computer and printer during the printing of the photographs was not called to testify as to the condition of the machines and the integrity of process of the printing of the photographs. The person who testified was the photographer who although he stated that he was with the computer operator when the photographs were made cannot vouch for the due operation of the computer and printer and the integrity of the photographs having himself admitted that they would at times sit with the operator to choose colours in which the photographs would be printed. The court cannot rule out HCCHRPET/E 481 /2021 Page 16 OF 17

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the possibility of doctored photographs, and in accordance with section 106B, the photographs are inadmissible and shall not be considered.” 15. Consistent with the above in Idris Abdi Abdullahi v Ahmed Bashane & 2 others [2018] eKLR, it was held, Therefore, although the requirement of the certificate matter, is a Section procedural and 106B of (4) technical the Act is mandatory and cannot be ousted by Article 159 (2) (d) of COK2010. The Constitution of Kenya is supreme law but in application of Article 159 2(d) matters of form the Court may rely on the provision. This Court finds that the mandatory Provisions of the Evidence Act are about form and substance. Before the Court can admit electronic records/evidence a certificate is mandatory to confirm source, process, custody and delivery HCCHRPET/E 481 /2021 Page 17 OF 17

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of the said electronic record before admission so as to pre-empt manipulation of the record.” 16. The same reasoning is evident in M N N v E N K [2017] KEHC 2175 (KLR) where Musyoka J, weighed in stating as follows: 6. The provisions of section 106B have been tested in a number of cases. The case classicus appears to be Republic vs. Barisa Wayu Matuguda (2011) eKLR, where a compact disc (CD) was made from CCTV footage, and the court held that where information is stored in a computer such as a CCTV camera, which is then produced or copied to the optical device, such as a CD, should be treated as documentary evidence and is admissible. The court stated that – ‘Any information stored in a computer… which is then printed or copied… shall be HCCHRPET/E 481 /2021 Page 18 OF 17

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treated just like documentary evidence and will production be admissible of the without original. the However, section 106B also provides that such electronic evidence will only be admissible if the conditions laid out in the provisions are satisfied… The provision makes it abundantly clear that for electronic evidence to be deemed admissible it must be accompanied by a certificate in terms of section 160B(4). Such certificate must be signed by a person holding a responsible position with respect to the management of the device… without the required certificate this CD is inadmissible as evidence.’ 7. The decision in Republic vs. Barisa Wayu Matuguda has been followed in several matters at the High Court. I shall cite only HCCHRPET/E 481 /2021 Page 19 OF 17

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two of them. In William Odhiambo Oduol vs. Independent Electoral & Boundaries Commission & 2 others (2013) eKLR, the issue was admissibility of a video recording done on a Nokia phone, which was then taken to Nairobi and the video recording was then developed to CD. The court noted that the video was recorded, saved in the internal memory of the phone, the phone was connected to a computer using a micro-USB data cable, the file was copied to an empty hard disk, an empty CD was then inserted into the computer CD write RAM, the video file was then written on the CD or VCD using a CD writing application. It was emphasized that it was important to trace the devices for audit purposes. It was held that the certificate has to be signed by a person occupying a responsible position in relation HCCHRPET/E 481 /2021 Page 20 OF 17

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to the operation of the relevant device or the management whichever of the was relevant activities, appropriate. In Nonny Gathoni Njenga & anor vs. Catherine Masitsa & anor (2014) eKLR, the court found that DVDs sought to be relied on were not accompanied by a certificate as required by the Evidence Act. Then there is R. vs. Robson & Harris (1972) 1 WLR 651, where the issue was the admissibility of tape recordings of alleged conversations between the defendants and a prosecution witness. It was held that in considering the question of admissibility the satisfy itself alleged to shown, prima court was required that what the prosecution be original facie, to be tapes original to were by evidence which defined and described the HCCHRPET/E 481 /2021 Page 21 OF 17

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production and the history of the recording upto the moment of production in court. 17. Finally, the Court of Appeal in the decision in Mwagandi v Lewa [2025] KECA 1036 (KLR) stated as follows: 23.The Appellant in addition produced photographs to demonstrate his occupation and developments he had made on the suit property. It is notable firstly, that photographs are electronic records, and to be admissible, they require authentication by way of the certificate required by section 106B[4] of the Evidence Act, which confirms the following: a.the identity of the electronic record containing the statement and describing the manner in which it was produced; b.giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose HCCHRPET/E 481 /2021 Page 22 OF 17

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of showing that the electronic record was produced by a computer; c.the matters to which the conditions mentioned section 106B[2] relate, including the period the electronic record relates to; and d.the signature by a person occupying a responsible position in relation to the operation of the relevant device used in the production of the electronic document. 18. From the foregoing analysis, it is evident that Courts have, with consistency, affirmed that the certificate of electronic evidence required under Section 106B(4) of the Evidence Act is not a procedural nicety but a mandatory statutory precondition. The failure by a party to accompany electronic evidence with the requisite certificate leaves the Court with no lawful discretion to admit such material; the inevitable consequence is that the impugned electronic evidence must be expunged from the record. The present matter offers no HCCHRPET/E 481 /2021 Page 23 OF 17

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principled basis upon which this Court may depart from that long and settled jurisprudential trajectory. Accordingly, the application dated 15th January 2023 is allowed and the following documents are expunged from the Court record a. The CD Video recording annexed and marked as PMM2 to the petitioner’s affidavit sworn on 5th November 2021. b. The Photographs annexed and marked as PMM1 to the petitioner’s affidavit sworn on 5th November 2021. 19. Each party will bear their own costs. 20. Mention on 10th November 2026 for further directions on disposal of the Petition DATED, SIGNED AND DELIVERED VIRTUALLY ON 30th JULY 2026 P. M. NYAUNDI JUDGE In the Presence of Fardosa Court Assistant Ms. Opiyo for Respondent HCCHRPET/E 481 /2021 Page 24 OF 17

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