This document provides an overview of electronic evidence under Kenyan law. It defines electronic evidence and lists common types. It discusses the characteristics of electronic evidence and how the Evidence Act was amended to allow electronic evidence. It outlines the criteria for admitting electronic evidence and the requirements for authenticating electronic evidence, including using a certificate of authenticity. It provides examples from case law of how Kenyan courts have analyzed the authentication of electronic evidence.
2. Definition of evidence
• Section 2 of the Evidence Act defines evidence as;
“evidence” denotes the means by which an alleged matter of fact, the truth of
which is submitted to investigation, is proved or disproved; and, without prejudice to
the foregoing generality, includes statements by accused persons, admissions, and
observation by the court in its judicial capacity
• Blacks Law Dictionary defines electronic evidence as;
Any computer-generated data that is relevant to a case. Included are email, text documents,
spreadsheets, images, database files, deleted email and files and back-ups. The data may be on floppy
disk, zip disk, hard drive, tape, CD or DVD
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3. Types of electronic evidence
• Emails
• Digital Photographs
• Transaction logs e.g. ATMs and MPESA
• Instant messages
• Browser histories
• Databases
• Computer print outs
• Global Positioning Systems(GPS) tracks
• Logs from electronic doors eg. Hotels
and offices
• Digital videos
• Digital audio files
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4. Characteristics of electronic evidence
• Easily modified eg. Word documents
• Easily manipulated and duplicated eg. Videos, audio, photos
• Difficult to destroy eg. When backed up on hard drive or cloud or email
• More readily available
• Tends to be voluminous
• Easy to share eg. Online by email or social media applications such as
whatsapp, facebook, google
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5. EVIDENCE ACT
• Evidence Act was amended in 2014 to include Section 78A and 106B in
order to allow electronic evidence
• S78A (1) - “In any legal proceedings, electronic messages and digital material shall be
admissible as evidence”
• S106 b (1) – “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 satisfied….”
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6. How to produce electronic evidence
• S78A (3) gives three main criteria when presented with electronic evidence;
“ 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.”
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7. AUTHENTICATION
• Defined as – “the process or action of proving or showing something to be true, genuine, or valid”
• Justice (Prof.) J. Ngugi in the case Republic v Mark Lloyd Steveson [2016] eKLR
stated that “the purpose is demonstrating to the court that there is reasonable probability that the
proposed evidence is what the proponent claims it is.”
• S78A (2) – provides that the electronic evidence need not be in its original form
“The court shall not deny admissibility of evidence under subsection (1) only on the ground
that it is not in its original form”
• S106B (2), (3) and (4) gives the conditions for proper authentication before
admissibility.
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8. • S106B (2) and (3)– in the event of computer output conditions to be met are;
a) The output must have been produced during regular use;
b) It must be of a type expected in ordinary use;
c) The computer generating the output must be operating properly or it must be shown that the
accuracy of the computer is not otherwise affected;
d) Where multiple computers are involved, those operating in succession and considered as one.
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CERTIFICATE OF AUTHENTICITY
• S106 (4) - Requires the certificate 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.
• That certificate needed must satisfy three conditions:
a. It must identify the electronic records and production process;
b. It must show the particulars of the producing device; and
c. It must be signed by the responsible person.
• Person signing the certificate must be the person best placed to produce the
electronic evidence
10. 1. County Assembly of Kisumu & 2 others v Kisumu County Assembly Service
Board & 6 others [2015] eKLR decided by Court of Appeal (DK. Maraga, D.K.
Musinga, A.K. Murgor, JJA)
“In relation to this case, the relevant conditions in that section are (a) if the computer output was
recorded by a person having lawful control over the computer used; (b) if the output was recorded in
the ordinary course of that person’s activities using a computer or some other electronic devise and
fed into a computer that was properly operating throughout the material period; and (c) if that person
gives a certificate that to the best of his knowledge, the output is an electronic record of the
information it contains and describes the manner in which it was produced.
The Evidence Act does not provide the format the certificate required under sub-section 106B(2)
thereof should take. The certificate can therefore take any form including averments in the affidavit
of the recorder.
In this case as we have said the electronic record was made by one Denis Kongo, a freelance
photojournalist. He, however, did not annex to his affidavit sworn on 11th December 2014 the
required certificate. The averments in that affidavit themselves did not meet the above stated
threshold of sub-section 106B(2) of the Evidence Act. Those averments therefore fell short of the
required certificate.”
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Examples
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• 2 . Jack & Jill Supermarket Ltd v Viktar Maina Ngunjiri [2016] eKLR decided
by Justice L. Njuguna
“According to that certificate, PW 2 states that the video and the photographs were taken by a
Cannon Camera Model Number HVIOA that was in good working order. He further states
that after taking the footage, he copied it to the computer with specifications HP Model
Number 00045– 532-454-917 and the photos were printed using HP Printer Model number
DCR-HC26E while the video footage was copied onto the CD using the HP Model Number
00045-532-454-917. He added that the computer was in good working condition and without
mechanical defects
As stated earlier in the ruling, I have taken judicial notice of the operations of a cyber café.
The witness paid for the use of the computer and personally carried out all the activities that
were necessary to produce the photos and the CD’s. The owner/proprietor of the cyber café
had no role to play in the said activities and in the premises, the witness is the best placed
person to produce the photos and the CDs.”
12. 3. Ndwiga Steve Mbogo v Independent Electoral and Boundaries Commission
& 2 others [2017] eKLR decided by Justice Fred A. Ochieng
“In this case, neither Doreen nor Kelvin was the maker of the original videos. Secondly, whilst there
were some insinuations that it is the petitioner who had shot the videos, it later transpired that the
videos in question were shot by a person or persons working with the television channel K T N.
Accordingly, I find and hold that the maker of the videos herein was the person who shot them.
It is always crucial to bear in mind the fact that electronic evidence can be easily manipulated, using
computers or other electronic gadgets or instruments. Therefore, before the court can determine that
electronic evidence was admissible, it is important for the court to take into account the integrity of
such evidence.
In this case, the originator, K T N was only identified in the course of cross-examination. Indeed,
reference to K T N as the originator is inaccurate because that is an entire television channel.
Todate, the petitioner has not yet disclosed to the court the actual person or persons who originated the
videos.”
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