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WILLIAM ODHIAMBO ODUOL v INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & 2 others [2013] eKLR 11. THAT I later downloaded the said video clip into CD format and played it back where I was able to ascertain that the recordings were a true and accurate record of the happenings of the said events of 4th March 2013 at Ujwang'a polling station aforesaid.” Coming back to section 106B(4), even if it were to be taken that the verifying affidavit is a certificate, the petitioner has to show that it meets the conditions in subsection (2) and in (a) and (b) of subsection (4). From the evidence of PW7 it does appear that the video was first recorded and saved in internal memory of the phone. The phone must then have been connected to a computer using a micro USB data cable; the video file was accessed from a computer through the cable, the file was copied to the computer's hard disk; an empty CD was inserted into the computer's CD-writer RAM; and the video file was then written on the CD as a VCD using a CD writing software. PW7 may be the owner of the phone handset, but said nothing about its working condition. There was no evidence regarding the computer used, its condition or reliability. There was no evidence to show that PW7 was the one who owned, operated and managed the computer. The particulars of the computer were not given. My considered view is that the verifying affidavit is not certificate in terms of subsection (4), and neither has PW7 satisfied the conditions of subsection (2). In the case of R. V. ROBSON AND HARRIS [1972] 1 W.L.R. 651 the court was dealing with the admissibility of tape recording of alleged conversations between the defendants and prosecution witness. It was held that in considering the question of admissibility the court was required to satisfy itself that what the prosecution alleged to be original tapes were shown, prima facie, to be original by evidence which defined and described the provenance and the history of the recording upto the moment of production in court. I find that PW7 has not given this history. It cannot be ascertained that the computers used in the production of this CD were operating properly and therefore that its content is accurate. The reason why the particulars of the computers used in the production of the CD had to be given (and such particulars would include the make and the serial numbers) is so that, if it becomes necessary, one can trace the devices for audit purposes. In conclusion, I find that the CD sought to be produced is not admissible. Dated, signed and delivered this 5th day of June 2013. A. O. MUCHELULE JUDGE While the design, structure and metadata of the Case Search database are licensed by Kenya Law under a Creative Commons Attribution-ShareAlike 4.0 International, the texts of the judicial opinions contained in it are in the public domain and are free from any copyright restrictions. Read our Privacy Policy | Disclaimer http://www.kenyalaw.org - Page 5/5 Powered by TCPDF (www.tcpdf.org)

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Odhiambo Oduol v. Independent Electoral & Boundaries Commission

Judgment

Question Presented: Whether petitioner’s affidavit verifying a video recording meets the evidentiary burden outlined in Section 107 of the Evidence Act relating to electronic evidence.

Alleged Acts: The respondent alleges that the petitioner’s affidavit verifying a video recording on a CD did not meet the standard for admitting electronic evidence at trial.

Procedural history: This case was filed before the High Court at Kisumu in an election petition case alleging polling and counting irregularities.

Summary: The petitioner’s chief campaign manager responded to a call from an agent about an Independent Electoral and Boundaries Commission (IEBC) clerk stuffing ballots at the Ujwan’ga polling station. When he arrived at the polling station, Adhola took a video of the ballots in the hands of the agent with his cellphone. Afterwards, Adhola went to Nairobi and downloaded the video onto a CD. He then submitted the CD in support of the petitioner’s election petition. The respondents objected to the admission of the CD for three reasons: first, the petitioner did not disclose the specifics of the device used to develop the CD, as is required by Section 106B of the Evidence Act. Second, the petitioner did not produce the requisite certificate “identify[ing] the electronic record containing the statement and describing the manner in which it was produced” and “giv[ing] such particulars of any device involved in the production of that electronic records as may be appropriate” to prove that a computer produced the CD, in accordance with Section 106B(4) of the Evidence Act. And third, the petitioner failed to meet the burden of proof outlined in Section 107 of the Evidence Act. In response, the petitioner argued that Adhola’s affidavit verifying the recording meets the legal requirements to be a certificate under Section 106B(4), thereby making the CD admissible evidence. The Court held that even if the verifying affidavit was a proper certificate, the petitioner still needed to prove that the certificate met the conditions of Sections 106(B)(2) and (4)(a)-(b) of the Evidence Act. Here, the Court relied on its opinion in Republic v. Barisa Wayu Matuguda, where it held that “for electronic evidence to be deemed admissible it must be accompanied by a certificate in terms of section 106B(4),” that “[s]uch certificate must . . . be signed by a person holding a responsible position with respect to the management of the device” and “[w]ithout the required certificate this CD is inadmissible as evidence.” The Court also relied on its decision in R. v. Robson and Harris, which held that the prosecution needed to prove their “original tapes were shown, prima facie, to be original by evidence which defined and described the provenance and the history of the recording up to the moment of production in court.” In the instant case, the Court found that Adhola had said nothing about the condition or reliability of the phone, or that he was the person who “owned, operated and managed the computer” on which he made the CD. Since the Court found that Adhola did not meet the prima facie standard of provenance and history of the CD via the required certificate, the Court held that the video recording was inadmissible as evidence.

Conclusion: In this election petition, the CD containing the video recording of ballot tampering was not admissible as evidence due to the lack of evidence proving the condition and authenticity of the video produced on a computer.

Legal Issue(s)

Disputing Results
Electoral Integrity
Vote Verification and Transmission

Applicable Law(s): § 106(A)—(B) of the Evidence Act, § 106(B)(2) & § 106(B)(4); REPUBLIC V. BARIS WAYU MATUGUDA [2011] eKLR; R. V. ROBSON AND HARRIS [1972] 1 W.L.R. 651 (Kenya)

Region: Africa

Country: Kenya

Language of Decision

English

Court: Trial Court

Election Type: General

Date of decision: Jun 5, 2013

Geolocation

Latitude: -0.10208113306363566

Longitude: 34.66952542041217

: Geolocation

Primary Documents

Election_Petition_2_of_2012.pdf
English
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Election Judgments - IFES

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Odhiambo Oduol v. Independent Electoral & Boundaries Commission

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