44 peace, the prosecution is duty-bound to prove beyond reasonable doubt that the act complained of was likely to make people resort to physical violence, 2.4.3.9. To guide the adduction of non-testimonial evidence, the High Court gave the following guidelines in Republic v Mark Lloyd Steveson, Kiambu Criminal Revision 1 of 2016: 37. For avoidance of doubt and for future guidance, it is important to point out that authentication is required where any “real” evidence (as opposed to testimonial evidence) is sought to be adduced at trial. This applies both to e-evidence as well as other documents or items sought to be admitted into evidence. Authentication of proposed evidence is a crucial step in its admission – one which reliance on section 78A of the Evidence Act (or even section 106B) does not obviate. 38. To avoid confusion it is important to set out where authentication fits into the evidence map. The admission and consideration of tangible exhibit in evidence follows the following steps: a. First, the Court determines if the proposed evidence is relevant. Here, the Court simply determines the probative value of the proposed evidence: whether the proposed evidence has tendency to make the existence of any fact that is of consequence to the determination of a fact in issue more or less probably that it would be without the evidence. If the proposed evidence passes the Relevancy Test, it proceeds to the second step. b. Second, in the case of tangible exhibits (like the two documents in this case), the Proponent for the evidence authenticates the proposed piece of evidence that is the Proponent must prove that the evidence is what the proponent claims it to be. The court only proceeds to the third step if the proposed evidence passes muster under the Authentication Test. It is important to explain here that the term “authentication” though the technically correct word which is widely used for this step can be misleading. In fact, what is meant by “authentication” at this stage is merely that a proper foundation for admission of the document or exhibit has been laid. It does not, at all, mean that the exhibit must now be accepted and believed. The Trial Court, as the fact finder, must ultimately weigh (in step 4 below) the admitted evidence in light of all the circumstances. The weighing can only happen after the foundation for the proposed evidence has been laid. c. Third, the Court, at the urging of the parties or on its own motion, determines if there is any other rule of evidence that excludes the proposed evidence. Here is the Court considers whether the evidence is excluded by the Constitution (for example the right against self-incrimination discussed above, prohibition against hearsay evidence or whether the proposed evidence would lead to unfair prejudice with its probative value substantially outweighed by the danger of unfair prejudice. If the proposed evidence survives this Exclusion Test, then the proposed evidence is admitted into evidence and the Court proceeds to the fourth step. d. Fourth, the Court considers the weight to be accorded to the admitted evidence. At this stage the opponent may still bring to the Court’s attention evidence opposing authenticity of the evidence, thereby allowing the Court to give less weight to the evidence or no weight at all. 2.4.4. The High Court 2.4.4.0. The High Court’s jurisdiction in EDR is a special one conferred by the Constitution and EDR laws (Gideon Mwangangi Wambua & Another v IEBC & 2 Others, Mombasa Election Petition No. 4 of BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION