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By Keniz Agira, Chairman, KCSFA

WHAT IS ELECTRONIC EVIDENCE

Electronic evidence is data (comprising the output of analogue devices or data in digital format) that is manipulated, stored or communicated by any man-made device, computer or computer system or transmitted over a communication system that has the potential to make the factual account of either party more probable than it would be without the evidence (Mason, 2010).

How is it applicable?

We refer to the following legal statutes which offer guidance on this: Evidence Act Cap 80 (Section 65 & 106B). These 2 sections of the evidence act address the “conditions of admissibility” of electronic evidence & another requirement therein referred to as a “certificate”.

KEY HIGHLIGHTS :

Section 106B(Evidence Act)

(1)Notwithstanding…any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document

(2) Conditions for admissibility

(a)the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the 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 contents;

(d)the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

 –Making statements:

 (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 things, that is to say-

(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 of the matters to which the conditions mentioned in sub-section (2) relate, and

(d) purporting to be signed by a person occupying a responsible official 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 sufficient for a matter to be stated to the best of knowledge and belief of the person stating it.

Case Studies:

Republic v Mataguda

  A Compact Disk made from CCTV footage was held inadmissible because of lack of a companying certificate as required by section 106B(4) of Evidence Act

William Odhiambo Oduol v IEBC & 2 others

 Court held that the PW7 verifying affidavit was not certificate and the CD sought to be produced as electronic evidence was inadmissible

Masoud Salim Hemed & another v Director of Public Prosecution & others

Justice Edward Muriithi permitted the use of video footage that showed the arrest of one Salim Hemed.

The CD video was admissible piece of electronic evidence without producing a certificate for his footage Pursuant to subsection four of section 106B of Evidence Act.

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