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WILLIAM ODHIAMBO ODUOL v INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & 2 others [2013] eKLR over that 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 denied from such information fed into the computer in the ordinary course of the said activities. Under sub-section (4), where a party seeks to give evidence by virtue of section 106B he has, among other things, to tender a certificate dealing with any matters to which the conditions above relate. The certificate should further: a) identify the electronic record containing the statement and describing the manner in which it was produced; and b) give 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. The certificate has 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 (whichever is appropriate). In the case of REPUBLIC .V. BARISA WAYU MATUGUDA [2011] eKLR the court observed that: “........any information stored in a computer.......which is then printed or copied....shall be treated just like documentary evidence and will be admissible as evidence without the production of the original. However section 106B also provides that such electronic evidence will only be admissible if the conditions laid out in that provision are satisfied. The court went on that: “This provision makes it abundantly clear that for electronic evidence to be deemed admissible it must be accompanied by a certificate in terms of section 106B(4). Such certificate must in terms of S.106B(4)(d) 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.” In the joint written submissions by the respondents counsel they sought to draw a distinction between the ordinary documentary evidence and electronic evidence. They also indicated why the Evidence Act has put conditions on the admissibility of electronic evidence. This is what they said: “But electronic evidence presents unique characteristics which necessitate careful treatment. First, while alterations on physical document are often immediately visible on its face, this is not the case with electronic material. An electronic document can be, and is often, modified in the process of collecting it as evidence. A common example occurs when a file or application is opened, or copied from one computer into another or into an external hard drive. Changes which are not often immediately visible occur. Second, compared with physical or other forms of exhibit evidence electronic http://www.kenyalaw.org - Page 3/5

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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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