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WILLIAM ODHIAMBO ODUOL v INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & 2 others [2013] eKLR AND IN THE MATTER OF THE ELECTION FOR GOVERNOR OF SIAYA COUNTY WILLIAM ODHIAMBO ODUOL ….................................................................................................PETITIONER VERSUS THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION.............................1ST RESPONDENT BENSON MUGATSIA..........................................................................................................2ND RESPONDENT CORNEL RASANGA AMOTH …........................................................................................3RD RESPONDENT RULING Section 106A of the Evidence Act (Cap 80) provides that the contents of electronic records may be proved in accordance with the provisions of section 106B. Section 106B deals with the admissibility of electronic records in the following terms: “106B (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 to as a 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.” The conditions to be satisfied are provided in sub-section (2) as follows: 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 http://www.kenyalaw.org - Page 2/5

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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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