It is not in contention that Kenya’s digital laws have undergone drastic reformation. Worth noting is the Data Protection Act which was passed in 2019. The recent changes in Kenya’s digital and ICT laws have also found prominence in courtrooms where electronic and digital evidence is allowable in certain circumstances.
It would have been a miscarriage of justice to disallow electronic and digital evidence as part of admissible evidence. Kenya has a remarkable Internet penetration rate of roughly 90 percent. Almost every computer literate adult has a web presence and is likely to have e-mails and social media pages.
For more sophisticated users, a lot of trade is done online through e-commerce platforms, especially when it comes to international trade. Contracts are made and signed online and trade is conducted without the need for geographical and physical proximity of the parties. This certainly wasn’t the trade landscape tens of years ago when Internet penetration wasn’t as developed as it is now.
Internet has facilitated usage of social media interactions and a lot of communication takes place on platforms like Facebook and WhatsApp.
In the event of a dispute then it is quite obvious that in most cases, a lot of dependence will be placed on electronic and digital evidence where the same was the main mode of communication. The Kenyan law allows electronic and digital evidence provided that the threshold set by the law is met. It is therefore not automatic for the same to be admissible as there are a further set of 4 requirements that must be met before the same is admissible.
This is provided for in Section 106 B of the Evidence Act. The provisions are quite technical but the most important thing to note is that electronic evidence on its own will not be admitted unless it has been authenticated usually by an expert. In a divorce case Civil Suit 31 of 2014, an audio recording which one party ought to admit was not allowed as part of the evidence for the simple reason it did not comply with Section 106B of the Evidence Act.
In a further case, Republic v Mark Lloyd Stevenson, an unauthenticated e-mail was disallowed as it did not comply with Section 78A of the Evidence Act. The argument was that the e-mail should have been accompanied by either oral testimony of the recipient or through technology footprints or an IP address which identified the compute that sent the e-mail.
In an election petition case, a video of alleged election malpractices was barred despite the maker of the video confirming that he is the one who took the video from his phone. The court noted that in order to produce the video and copy the same onto CD format, the phone needed to be linked to a computer and the video subjected to processing. According to the court, this process required a certification. In absence of the required certificate under Section 106 B then the video couldn’t be produced.
The above case law and statutory law should therefore guide businesses and individuals on the standard of evidence that is allowable in court. My recommendation would be for every person and business to keep proper electronic and digital records.
In the event that one intends to adduce the same in evidence then it is important to retain the services of a technical expert to assist in production of evidence and preparation of the required certificates.
Casual mismanagement of key electronic and digital evidence can affect the outcome of your trial as the above cases have established.