Millitonic Mwendwa Kimanzi Kitute v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR
The Determination
Ms. Mwinzi, the counsel for the 1st and 2nd Respondents, and Mr. Ombati, the counsel for the 3rd
Respondent, argued that the said photograph does not meet the requirements of section 106B of the
Evidence Act, and in particular that the deponent of the affidavit has not complied with the conditions set
out in the section and has not provided the certificate of authenticity required by the said section.
Reliance was placed on the decision in Richard Nyagaka Tong’i vs Electoral & Boundaries
Commission & 2 Others, (2013) eKLR .
The counsel for the Petitioner, Ms. Mageto, in response relied on section 78 (1),(2) and (3) of the
Evidence Act, and while conceding that no certificate as required by section 106B had been annexed,
submitted that they were not relying on the originality of the photograph, but on the photograph having
been produced under oath as a demonstration of what the deponent has stated.
I have considered the arguments made by the counsels for the Respondents and the Petitioner on the
objection before the Court. The issue before the Court is whether the photograph annexed as Annexure
“NML1” to the affidavit of Nicholas Matuku Luvai sworn on 4th September 2017 in support of the
Petitioner’s Petition is admissible as evidence. Section 78 A of the Evidence Act in this regard provides
that electronic messages and digital material shall be admissible as evidence in any legal proceedings.
Sections 106A and B of the Evidence Act in addition provides for the conditions for admissibility of
electronic records.
In summary, section 106A of the Evidence Act provides that the contents of electronic records may be
proved in accordance with the provisions of section 106B. Section 106 B on the other hand requires any
information contained in an electronic record whether it be the electronic record (whether it be the
contents of a document or communication printed on a paper, or stored, recorded, copied in optical or
magnetic media produced by a computer), is deemed to be a document and is admissible in evidence
without further proof of the production of the original, providing the conditions set out in section 106B (2)
for the admissibility of evidence are satisfied.
The process of producing an image on paper in the form of a photograph requires the same to be
printed by a printer using a computer, and therefore a photograph falls within the definition of an
electronic record , and the provisions of section 106B of the Evidence Act accordingly apply to its
admissability.
These conditions set out in section 106B(2) are as follows:
1. At the time of creation of the electronic record, the computer output containing the information was
produced from a computer that was used regularly to store or process information for the purposes of
any activities regularly carried on over that period by the person having lawful control over the use of the
computer.
2. During the period, the kind of information contained in the electronic record was regularly fed in to the
computer in the ordinary course of the activities.
3. Throughout the material part of the period, the computer was operating properly or, if not, the
computer was out of operation for some period, but it was not such to affect the electronic record or the
accuracy of the contents.
4. The electronic record bears the information reproduces or is derived from such information fed into the
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