The advent of technological development and the consequent evolution of paperless transactions have permeated every sphere of life, and the legal system is no exception: in the event of disputes involving transactions conducted through electronic means, parties are bound to rely on electronic evidence of such transactions.
The Kenyan Evidence Act (Cap 80 Laws of Kenya) recognizes and endorses the use of electronic evidence in Kenya . Second, it reiterates the conditions for the admissibility of electronic evidence. In determining the admissibility of electronic evidence the Act provides to wit section 78A which provides:
78A. Admissibility of electronic and digital evidence
(1) In any legal proceedings, electronic messages and digital material shall be admissible as evidence.
(2) The court shall not deny admissibility of evidence under subsection (1) only on the ground that it is not in its original form.
(3) In estimating the weight, if any, to be attached to electronic and digital evidence, under subsection (1), regard shall be had to—
(a) the reliability of the manner in which the electronic and digital evidence was generated, stored or communicated;
(b) the reliability of the manner in which the integrity of the electronic and digital evidence was maintained;
(c) the manner in which the originator of the electronic and digital evidence was identified; and
(d) any other relevant factor.
(4) Electronic and digital evidence generated by a person in the ordinary course of business, or a copy or printout of or an extract from the electronic and digital evidence certified to be correct by a person in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.”
My understanding of this section is that it makes explicit that electronic messages are admissible as evidence in Kenya provided that they satisfy the other requirements for such admission. This section does not obviate the need for establishing the relevance of the proposed evidence in the same way it does not excuse the need for authentication of the proposed evidence. This section is also helpful in codifying the factors to be taken into account in assessing the weight to be given to an authenticated and admitted electronic message.
The conditions upon which such electronic evidence would be admissible are provided for under Section 106 (B) of the same Act. Section 106 (B) (1) provides as follows: –
“106B(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.”
Section 106B (2) provides that: –
“The conditions mentioned in sub section (1) in respect of a computer output, are the following-
- the computer output containing the information was produced by the computer during the period over which the computer was used to store or process the information for any activities regularly carried out over that period by a person having lawful control over the use of the computer
- during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in ordinary course of the said activities;
- throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly was out of the operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
- the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.”
Section 106 (A) and (B) means that any information stored in a computer which is then printed or copied to optical media such a CD in this case, shall be treated like documentary evidence and will be admissible as evidence without production of the original. However, Section 106B also provides that such electronic evidence will only be admissible if the conditions laid out in that provision are satisfied, Section 106B (4) provides: –
“In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following –
(a) identifying the electronic record containing the Statement and describing the manner in which it was produced
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any matters to which conditions mentioned in subsection (2) relate; and
(d) Purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate and for the purpose of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge of the person stating it.”
This provision is clear that, for electronic evidence to be deemed admissible it must be accompanied by a certificate in terms of Section 106 B (4).