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Millitonic Mwendwa Kimanzi Kitute v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR computer in the ordinary course of the regular activities. Section 106B (4) further mandates the production of a certificate of authenticity of electronic evidence which is signed by a responsible person who was responsible for the computer on which the electronic was created or stored, in order to certify the qualifications set out above. The certificate must uniquely identify the original electronic record, describe the manner of its creation, describe the particulars of the device that created it, and certify compliance with the conditions of sub-section (2) of section 106B. This Court in a previous ruling delivered in this election Petition on 6th November 2017 did explain and illustrate by way of various judicial authorities that section 106 B of the Evidence Act is intended to ensure the reliability and authenticity of an electronically-produced document, and the procedure set out therein is aimed at preventing printed copies of the electronic records adduced as evidence in court being manipulated altered or tampered with. The integrity of electronic records was also emphasized in the judgment by Muriithi J. in Richard Nyagaka Tong’i vs Electoral & Boundaries Commission & 2 Others, (2013) eKLR .where a photograph produced without a certificate under section 106B was found unavailable for use by the party relying on it. In the premises, given that no certificate has been produced showing compliance and authentication as required by section 106B of the Evidence Act in relation to 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, the said photograph is found to be inadmissible as evidence. The 1st, 2nd and 3rd Respondents’ objection is accordingly found to have merit, and is hereby upheld. The costs of the said Objection shall abide the outcome of this Petition. Orders accordingly. DATED, SIGNED, AND DELIVERED AT KITUI THIS 23RD DAY OF NOVEMBER 2017 P. NYAMWEYA JUDGE While the design, structure and metadata of the Case Search database are licensed by Kenya Law under a Creative Commons Attribution-ShareAlike 4.0 International, the texts of the judicial opinions contained in it are in the public domain and are free from any copyright restrictions. Read our Privacy Policy | Disclaimer http://www.kenyalaw.org - Page 3/3 Powered by TCPDF (www.tcpdf.org)

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Kitute v. Independent Electoral and Boundaries Commission

Judgment

Question Presented: Is electronic evidence submitted in support of allegations of election fraud subject to the Evidence Act, which requires authentication or certification by an appropriate authority or expert?

Alleged Acts: The plaintiff alleged that an unnamed party tampered with ballots and interfered at voting locations, and that these actions caused him to lose his campaign for a seat in Kenya’s Parliament.

Procedural history: The plaintiff submitted their complaint to the High Court of Keyna in September 2017.

Summary: In September 2017, Millitonic Kitute, a candidate for a parliamentary seat in Kenya’s Kitui East Constituency, challenged the election results after he lost the election. As part of his case, the plaintiff submitted computer printouts that he claimed were credible post-election reports that showed evidence of voter fraud and interfering with voter ballots. Notably, the plaintiff did not submit any further verification with the electronic records and only attested to the Court that they were “credible.” He did not specify his source for the records or explain the security of the computers from which he gathered the evidence, and had no experts verify the evidence’s credibility. The respondents argued that supposed printouts of electronic records of election data collected by the country’s election management system were insufficient according to evidentiary standards established by the court. As the plaintiff submitted no expert testimony along with his evidence that verified the reports, the respondents argued that such printouts could easily be falsified and that the petitioner had not established any satisfactory credibility for the evidence. Thus, the respondents argued that the electronic records were not admissible as evidence in the suit and the case should be dismissed.

Conclusion: The court dismissed the evidence submitted by the petitioner as inadmissible, and further dismissed the entire case based on a lack of evidence. According to Kenyan case law, any documents introduced in an election related court case are subject to the conditions of the country’s Evidence Act – namely, authentication and certification of the evidence by an appropriate authority or expert. The petitioner submitted no such accompanying authentication with the supposed evidence. While the court does not identify any appropriate authorities that could verify such evidence, it establishes a heightened standard for claiming election fraud and submitting accompanying evidence to the court.

Legal Issue(s)

Civil Procedure
Disputing Results
Electoral Administration Irregularities
Electoral Integrity
Electronic Voting

Applicable Law(s): Kenya Evidence Act (Chapter 80 of the Laws of Kenya)

Region: Africa

Country: Kenya

Language of Decision

English

Court: Supreme Court

Election Type: General

Date of decision: Nov 6, 2017

Geolocation

Latitude: -1.3603455852818376

Longitude: 36.87744095921517

: Geolocation

Primary Documents

Kitute v. Independent Electoral and Boundaries Commission.pdf
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Election Judgments - IFES

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Kitute v. Independent Electoral and Boundaries Commission

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