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WILLIAM ODHIAMBO ODUOL v INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & 2 others [2013] eKLR evidence is relatively more difficult to detect and trace the signs of tampering. It can be changed or manipulated much more easily than paper or other forms of evidence without having any obvious trace of such alteration. Third, computer equipment runs on an artificial intelligence which receives, interpreters and applies human commands. This artificial intelligence has been known to go awry. System crashes, viruses, and/or botnets often occur, compromising the integrity of the material captured, preserved or presented using a computer. Finally, the capturing, preserving and presenting of evidence in electronic form requires a measure of technical knowledge in the operation of the electronic equipment.” I fully agree with counsel on the need to be careful when admitting electronic evidence. In the instant case, objection was taken by the respondents to the desire by AUGUSTINE OGAE ADHOLA (PW7), called by the petitioner, to produce a CD as part of his evidence. He was the petitioner's chief campaign manager for Rarieda Constituency and testified that on 4/3/13 his agent for Ujwan'ga polling station called to say that he had caught an IEBC clerk who was just about to stuff marked ballot papers into ballot boxes. PW7 rushed to the scene and, in the presence of the IEBC coordinator, OCS of the area and the clerk, used his Nokia E7 cellphone to take video of the ballot papers which he found in the hands of the agent. After the elections he went to Nairobi and developed the video into CD. The CD was part of the exhibits he annexed to the affidavit he swore in support of the petition. He swore two affidavits on 8/4/13. One was witness affidavit and the other was “Affidavit Verifying Video Recording.” Mr. P.J. Otieno, holding brief for Mr. Gumbo for the 1st and 2nd respondents, and Mr. Kopot for the 3rd respondent objected to the production of the CD on the following grounds: a) that the particulars of the device used by the witness to develop the CD had not been disclosed as required by Section 106B; b) that no certificate accompanying the CD had been produced; and c) that the petitioner had not discharged the burden imposed on him by section 107 of the Evidence Act. The response by Mr. Wakla Odhiambo for the petitioner was that the device used to capture the information was PW7's telephone handset which had a video recording facility; and that PW7 was the owner of the handset which he had control of. Regarding the certificate, his contention was that the affidavit verifying video recording should be taken to be the certificate. The relevant portions of PW'7's verifying affidavit were as follows: “8. THAT I also took video clips of the said marked ballot papers using my cell phone make Nokia E7 which has video recording facilities. 9. THAT the video recording shows images of marked ballot papers as aforesaid and also contains my voice while I was talking to the DCIO, Bondo Police station informing him of the said electoral offence. 10. THAT the said video also captures, images of the Petitioner's agent called ZACKARY ODERO who is the person holding the ballot papers in the video. http://www.kenyalaw.org - Page 4/5

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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
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Election Judgments - IFES

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Odhiambo Oduol v. Independent Electoral & Boundaries Commission

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