First of all, let us dispose of the mis-educated and exclusionary approach that ‘video evidence, tape recording, emails, electronic documents are not admissible in evidence’. The answer to this is the general rule of evidence that any kind of evidence is admissible in court to prove any matter in issue as long as it has probative value (which is lawyer-speak for ‘as long as it is relevant to the determination of the dispute’). Therefore, electronic evidence, and indeed any other form of evidence, is not precluded from admissibility merely on the basis of the manner in which it is collected, preserved or presented.
All evidence is admissible, as long as its probative value is established and the court is satisfied that it was properly collected and preserved. In fact, in many cases, electronic evidence usually has the highest probative value – imagine if in a murder case the court was shown video footage of the murder. Perhaps that’s the reason why the opposing party/lawyer frequently objects to its production.
The Evidence Act (Cap. 80)
Kenya’s Evidence Act (section 106B) provides for the procedure and the conditions that need to be met in order for information contained in an electronic record to be admitted as evidence in court proceedings. These conditions are in the nature of statements made in evidence for the purpose of satisfying the court as to the integrity and reliability of the electronic record being produced in evidence. They include satisfying the court that:
• The electronic record was produced, fed into or derived from the computer in the ordinary course of business by a person having lawful control over the computer;
The computer was operating properly or if there was any way in which it was not operating properly, then such malfunction was not of such a nature as to affect the electronic record or the accuracy of its content.
The section further provides that these conditions may be satisfied by the production of a ‘certificate’ signed by a ‘a person occupying a responsible position in relation to the operation of the relevant device or the manager of the relevant activities’ identifying the electronic record and the manner in which it was produced and/or giving the particulars of any device involved in the production for the purpose of showing that the record was produced by a computer.