131 4.8.3.1.5 There is no prescribed format for the certificate envisioned by section 106B(4) of the Evidence Act (County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others, Kisumu Civil Appeal No. 17 of 2015). The requirement for the certificate will be met where a person in a responsible position in relation to the operation of the relevant electronic device or the management of the relevant activities (whichever is appropriate) swears an affidavit that sufficiently addresses the matters referred to in section 106B(2) and (4) of the Evidence Act (County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others, Kisumu Civil Appeal No. 17 of 2015). 4.8.3.1.6 India has a similar certification procedure of electronic evidence prescribed in its Evidence Act. In spite of this requirement, judicial practice had for a long time led to the acceptance of electronic evidence without authentication. In overruling this practice (which had been solidified by earlier Supreme Court decisions), the Supreme Court of India redefined the evidentiary admissibility of electronic records to correctly reflect the letter of their Evidence Act in requiring authentication. In this EDR matter, the petitioner had sought to rely on electronic evidence and the Supreme Court in its decision emphasised the need to protect the credibility and evidentiary value of electronic evidence since it was more susceptible to tampering and alteration (Anvar P.K. v P.K Basheer & Others, (2014) 10 SCC 473; and T Karia, A Anand & Bahaar Dhawan ‘The Supreme Court of India re-defines admissibility of electronic evidence in India’). 4.8.3.1.7 The Supreme Court of India further noted that owing to such susceptibility and without proper safeguards, a trial based on proof of electronic records could lead to a travesty of justice (Anvar P.K. v P.K Basheer & Others, (2014) 10 SCC 473; and T Karia, A Anand & Bahaar Dhawan ‘The Supreme Court of India re-defines admissibility of electronic evidence in India’). 4.8.3.2 Burden of Proof 4.8.3.2.1 Section 2(1) of the Evidence Act provides that the Act applies to all judicial proceedings in or before any court other than the Kadhi’s Court, and arbitral tribunals. Sub-section (2) of the provision states that the Act equally applies to affidavits presented to any Court. 4.8.3.2.2 Section 107 and 109 of the Evidence Act impose the burden of proving any fact on the person who asserts it or wishes the court to believe in its existence. Legal Burden 4.8.3.2.3 The legal burden of proof in EDR lies on and remains with the petitioner throughout the case (Opitz v Wrzenewskyi [2012] 3 SCR 769; and Raila Odinga v IEBC & 3 Others, Supreme Court Petition No. 5 of 2013). In Raila Odinga v IEBC & 2 Others, Supreme Court Presidential Petition No. 1 of 2017, the Supreme Court summarised this position as follows: Thus a petitioner who seeks the nullification of an election on account of non-conformity with the law or on the basis of irregularities must adduce cogent and credible evidence to prove those grounds “to the satisfaction of the court.” That is fixed at the onset of the trial and unless circumstances change, it remains unchanged. 4.8.3.2.4 The rationale for this rule is that the petitioner is the one who seeks relief from the court and, in particular, the nullification of an election (s 107(1) of the Evidence Act; and Raila Odinga v IEBC & 3 Others, Supreme Court Petition No. 5 of 2013). BENCH BOOK ON ELECTORAL DISPUTE RESOLUTION